Spotted Horse v. BNSF Ry. Co.

Decision Date29 May 2015
Docket NumberNo. DA 14–0257.,DA 14–0257.
Citation2015 MT 148,379 Mont. 314,350 P.3d 52
PartiesMark SPOTTED HORSE, Plaintiff and Appellant, v. BNSF RAILWAY COMPANY, Defendant and Appellee.
CourtMontana Supreme Court

For Appellant: James T. Towe, Kimberly L. Towe, Towe & Fitzpatrick, PLLP, Missoula, Montana. James Ferguson, Chester H. Lauck, III, Law Office of H. Chris Christy, North Little Rock, Arkansas.

For Appellee: Scott M. Stearns, Christopher L. Decker, Boone Karlberg P.C., Missoula, Montana.

Opinion

Justice PATRICIA COTTER delivered the Opinion of the Court.

¶ 1 Mark Spotted Horse appeals from a jury verdict and judgment rendered in favor of BNSF Railway Company in the Eighth Judicial District Court, Cascade County.

¶ 2 Spotted Horse presents four issues on appeal. Because we reverse and remand, we need address only two issues, which we restate as follows:

1. Whether the District Court abused its discretion in declining to grant Spotted Horse's request for a default judgment based on the spoliation of video footage taken at BNSF's Diesel Shop on the day Spotted Horse was injured.
2. Whether the District Court abused its discretion when it instructed the jury as to BNSF's duty of care in a FELA action.
FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On April 28, 2010, Mark Spotted Horse, a BNSF Railway Company (BNSF) machinist, filed suit against BNSF alleging negligence under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 – 60. Spotted Horse claimed that on September 13, 2009, while working in BNSF's Diesel Shop in Havre, Montana, he suffered a disabling injury when his co-worker Jim Syverson inadvertently lowered a locomotive engine compartment hatch on his head. Spotted Horse reported the incident to his BNSF supervisors and was immediately taken to the hospital by BNSF Shop Superintendent Beau Price. Shortly thereafter, Spotted Horse filed an employee injury report indicating that the rope used to lower the engine compartment hatch had slipped through Syverson's hand. According to the injury report, the hatch then struck Spotted Horse on the top of his hard hat causing him to suffer headaches and neck pain.

¶ 4 BNSF General Foreman Paul McLeod immediately commenced to investigate and collect information relative to Spotted Horse's injuries. In coordination with Price and General Electric (GE) Senior Site Manager Rob Wood,1 McLeod collected Spotted Horse's hard hat, conducted reenactments of the alleged injury, took photographs, and interviewed and obtained written statements from both Spotted Horse and Syverson.

¶ 5 At the time of the alleged incident, the Diesel Shop had a digital camera recording system in place, which consisted of multiple video cameras positioned at various locations throughout the shop stalls.2 The video cameras ran continuously, recording 24 hours per day, seven days per week, and generated footage that was viewable real-time on a monitor in the shop supervisor's office.

¶ 6 For purposes of investigating injuries and rule violations and implementing possible disciplinary actions against employees, BNSF personnel routinely requested copies of video footage by emailing or calling BNSF's Resource Operation Center (ROC), located in Fort Worth, Texas. The ROC administers resource protection, including the preservation of video footage. Absent a video footage request within a specified period of time, typically 15 to 30 days, the digital recording system automatically overwrites old video footage with new video footage.

¶ 7 Spotted Horse maintains that during a post-incident interview he requested a copy of the video footage from the shop's cameras. Later, after his lawsuit was filed, Spotted Horse made several discovery requests, including a request for the production of videos and photographs of the work area where the alleged injury occurred. According to Spotted Horse, BNSF initially produced three photographs, but it never referenced or provided any video footage. Spotted Horse eventually moved the court for an order to compel BNSF to answer his discovery requests. BNSF responded that McLeod had contacted the ROC to request video footage from the two stalls where Spotted Horse was allegedly injured. However, as stated in BNSF's response, the ROC informed McLeod “that the videos overwrite every 15 to 30 days, therefore any video footage from 9/13/2009 no longer exists.” BNSF stated that [a]fter further inquiry, it was determined that there is no record of the video being requested in September or October 2009 (the six weeks following the accident).

¶ 8 McLeod subsequently acknowledged in a deposition that he had utilized video recordings for investigations of workers for rule violations as well as in connection with injuries and was aware that the video recording system would overwrite recordings after a certain period of time. McLeod testified that on the evening of the incident, he and Price had “probably watched about 15 minutes” of video footage from one camera located in the stall purportedly closest in proximity to where the alleged injury occurred. According to McLeod, he [a]bsolutely ... could have requested” a copy of the video footage. However, McLeod determined [t]here was no evidence to preserve” because that particular camera did not capture the area where Spotted Horse and Syverson were working nor did the camera show Spotted Horse's alleged injury. McLeod stated that he had not viewed video footage from any other camera in the shop and agreed that other cameras may have captured Spotted Horse and Syverson performing other acts in the shop.

¶ 9 Likewise, in his deposition, Price stated that he watched video footage “once or twice” with McLeod, but that they “could see nothing there.” BNSF indicated that GE representative Wood also viewed the video and had reached the same conclusion.

¶ 10 Although he did not immediately contact BNSF's claims department regarding the investigation into Spotted Horse's alleged injury, McLeod eventually submitted his findings to BNSF Senior Claims Representative Nancy Ahern. Ahern stated that she was not aware of any BNSF policy that instructs BNSF supervisors to immediately notify the claims department so that evidence can be preserved. However, she stated that if she is apprised of a situation where there is video footage as evidence, she will make a request from ROC. No such request was made here, as BNSF did not make a timely request to preserve any of the video footage from any of the cameras in place at the time of the alleged incident.

¶ 11 On July 27, 2012, Spotted Horse moved for a default judgment against BNSF on the issues of liability, causation, and contributory negligence based on the alleged spoliation of video footage and other discovery abuses. The District Court denied the motion, but prohibited BNSF from introducing or referring to any testimony or evidence about the video footage unless Spotted Horse first chose to introduce that information. In that event, BNSF would be free to tell the jury what the videos ostensibly showed.

¶ 12 A jury trial commenced on December 2, 2013. During trial, both parties presented testimony and evidence regarding the relevancy and unavailability of the video footage.

¶ 13 Among the jury instructions given, Instruction No. 2 stated, in pertinent part:

If it appears that a party intentionally or recklessly destroyed or concealed evidence favorable to the other party, then you should view any contrary evidence presented by that party with distrust.

Additionally, over Spotted Horse's objection, the district court provided Instruction No. 11 concerning BNSF's duty of care, which stated the following:

BNSF was not obligated to eliminate all risks in the work place; it was only obligated to eliminate unreasonable risks.

¶ 14 On December 10, 2013, the jury found in favor of BNSF and the case was dismissed with prejudice. Spotted Horse subsequently moved for a new trial, which the District Court denied. Spotted Horse appeals.

STANDARDS OF REVIEW

¶ 15 We review a District Court's decision to impose or decline to impose sanctions for an abuse of discretion. Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 26, 303 Mont. 274, 16 P.3d 1002. In doing so, we generally defer to the district court because it is in the best position to determine both whether the party in question has disregarded the opponent's rights, and which sanctions are most appropriate. Richardson v. State, 2006 MT 43, ¶ 21, 331 Mont. 231, 130 P.3d 634. In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but rather whether the trial court acted arbitrarily without the employment of conscientious judgment or exceeded the bounds of reason, in view of all the circumstances. Schuff, ¶ 27.

¶ 16 We review for an abuse of discretion whether the district court correctly instructed the jury. Peterson v. St. Paul Fire & Marine Ins. Co., 2010 MT 187, ¶ 22, 357 Mont. 293, 239 P.3d 904. [W]hile a district court has broad discretion to formulate jury instructions, that discretion is limited by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicable law.” Peterson, ¶ 22 (quoting Tarlton v. Kaufman, 2008 MT 462, ¶ 19, 348 Mont. 178, 199 P.3d 263 ) (internal quotation marks omitted). In reviewing whether a particular instruction was properly given, we consider the instruction in its entirety, as well as in connection with the other instructions given and with the evidence introduced at trial.” Tarlton, ¶ 19 (quoting Murphy Homes, Inc. v. Muller, 2007 MT 140, ¶ 74, 337 Mont. 411, 162 P.3d 106 ).

DISCUSSION

¶ 17 Issue 1: Whether the District Court abused its discretion in declining to grant Spotted Horse's request for a default judgment based on the spoliation of video footage taken at BNSF's Diesel Shop on the day Spotted Horse was injured.

¶ 18 Spotted Horse argues that the District Court abused its discretion in refusing to...

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8 cases
  • Anderson v. BNSF Ry.
    • United States
    • Montana Supreme Court
    • August 12, 2015
    ...litigant from its repeated attempts to prevail through misconduct rather than on the merits of its case.¶ 85 We recently noted in Spotted Horse v. BNSF that the defendant here appears to have a pattern of practice that relies on misconduct to prevail in court. See Spotted Horse v. BNSF, 201......
  • Mont. State Univ.-Bozeman v. Mont. First Judicial Dist. Court
    • United States
    • Montana Supreme Court
    • September 11, 2018
    ...only cursory reference to M. R. Civ. P. 37(e), the court essentially imposed a severe sanction by analogy to Spotted Horse v. BNSF Ry. Co. , 2015 MT 148, 379 Mont. 314, 350 P.3d 52, and in contrast to Estate of Willson v. Addison , 2011 MT 179, 361 Mont. 269, 258 P.3d 410, neither of which ......
  • Walden v. Yellowstone Elec. Co.
    • United States
    • Montana Supreme Court
    • May 18, 2021
    ...the cost of discovery abuse "must be made unbearable to thwart the inevitable temptation that zealous advocacy inspires"); Spotted Horse v. BNSF Ry. Co. , 2015 MT 148, ¶ 39, 379 Mont. 314, 350 P.3d 52 (holding that a district court's failure to impose a meaningful sanction for evidence spol......
  • State v. Jeffries
    • United States
    • Montana Supreme Court
    • February 6, 2018
    ..., ¶ 31. Spoliation of evidence is a tort sanctionable as a discovery abuse under the Montana Rules of Civil Procedure. Spotted Horse v. BNSF Ry. Co. , 2015 MT 148, ¶ 20, 379 Mont. 314, 350 P.3d 52. ¶25 Spoliation is not applicable, however, in a criminal proceeding governed by the rules of ......
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7 books & journal articles
  • Requests for inspection
    • United States
    • James Publishing Practical Law Books Guerrilla Discovery
    • April 1, 2022
    ...the opposing party notice of access to the evidence, or of the possible destruction of that evidence. 61 Spotted Horse v. BNSF R.R. Co ., 379 Mont. 314, 350 P.3d 52, 2015 MT 148 (2015). An injured railroad machinist filed a suit against a railroad alleging negligence under the Federal Emplo......
  • Basics of Real Evidence
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2017 Real evidence
    • July 31, 2017
    ...and cover up the spoliation, including running specialized software and repeatedly lying to the court. Spotted Horse v. BNSF R.R. Co., 379 Mont. 314, 350 P.3d 52, 2015 MT 148 (2015). Aninjured railroad machinist filed a suit against a railroad alleging negligence under the Federal Employers......
  • Basics of Real Evidence
    • United States
    • August 2, 2016
    ...and cover up the spoliation, including running specialized software and repeatedly lying to the court. Spotted Horse v. BNSF R.R. Co., 379 Mont. 314, 350 P.3d 52, 2015 MT 148 (2015). Aninjured railroad machinist filed a suit against a railroad alleging negligence under the Federal Employers......
  • Basics of real evidence
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2018 Real evidence
    • August 2, 2018
    ...and cover up the spoliation, including running specialized software and repeatedly lying to the court. Spotted Horse v. BNSF R.R. Co., 379 Mont. 314, 350 P.3d 52, 2015 MT 148 (2015). Aninjured railroad machinist iled a suit against a railroad alleging negligence under the Federal Employers’......
  • Request a trial to view additional results

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