Union Pac. R.R. Co. v. Estate of Gutierrez

• Decision Date: 21 August 2014
• Docket Number: No. 01–12–01029–CV.,01–12–01029–CV.
• Citation: 446 S.W.3d 478
• Parties: UNION PACIFIC RAILROAD COMPANY, Appellant v. ESTATE OF Geronimo GUTIERREZ, Deceased, and Amelia Gutierrez and Adrian Gutierrez, individually in their capacities as dependents of Geronimo Gutierrez, Deceased, and Amelia Gutierrez, in her capacity as Administratrix of the Estate of Geronimo Gutierrez, Appellees.
• Court: Texas Court of Appeals

446 S.W.3d 478

UNION PACIFIC RAILROAD COMPANY, Appellant

v.ESTATE OF Geronimo GUTIERREZ, Deceased, and Amelia Gutierrez and Adrian Gutierrez, individually in their capacities as dependents of Geronimo Gutierrez, Deceased, and Amelia Gutierrez, in her capacity as Administratrix of the Estate of Geronimo Gutierrez, Appellees.

No. 01–12–01029–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Aug. 21, 2014.

Lynne Liberato, Christina Crozier, Polly Graham, Haynes and Boone, LLP, Houston, TX, Douglas W. Poole, Bryan R. Lasswell, McLeod, Alexander, Powell & Apfell, P.C., Galveston, TX, for Appellant.

Daniel J. Cohen, St. Louis, MO, Michael W. Kerensky, Houston, TX, for Appellees.

Panel consists of Justices JENNINGS, HIGLEY, and SHARP.

OPINION

JIM SHARP, Justice.

In this Federal Employers' Liability Act (“FELA”) case,¹ Union Pacific Railroad Company appeals from the final judgment rendered on the jury's verdict in favor of the estate of Geronimo Gutierrez, deceased, Amelia Gutierrez and Adrian Gutierrez, individually in their capacities as dependents of Geronimo Gutierrez, deceased, and Amelia Gutierrez, in her capacity as administratrix of the estate of Geronimo Gutierrez. In two issues, appellant contends that the trial court erred by (1) denying its motion for judgment notwithstanding the verdict because appellees failed to present legally sufficient evidence of causation and (2) including an instruction in the jury charge on assumption of the risk. We affirm the trial court's judgment.

Background

A. Undisputed Facts

In May 2007, Geronimo Gutierrez (“Gutierrez”), who had worked for Union Pacific since 1979, was a carman responsible for repairing and maintaining railcars in the repair track complex (“RTC”) of appellant's Englewood Yard in Houston, Texas. On May 12, 2007, at about 6:15 a.m., Gutierrez's shift was about complete when he fell from a railcar and broke his left leg. Paramedics transported him to the hospital where he underwent three surgeries and, on May 20, 2007, was released and sent home. Gutierrez returned to the hospital three days later complaining of a headache at which point the doctors discovered that he had suffered a complication from the anti-clotting medication, causing a brain hemorrhage

from which he died the next day.

On December 12, 2009, appellees filed suit against appellant asserting claims under FELA. Following the trial court's denial of appellant's traditional and no-evidence motions for summary judgment, the case proceeded to trial on June 19, 2012.

B. Theories of the Case

1. Appellees' Theory

Appellees argued that a longstanding drainage problem in Englewood Yard had created muddy conditions between the tracks where Gutierrez was working on the morning of his fall. In support of this position, other Union Pacific employees testified regarding the history of poor drainage and resulting mud between the tracks where Gutierrez worked and at the switches which he would have traveled prior to his injury. In particular, the jury heard testimony that the drainage problem which had existed for decades was beyond “typical Houston”; “[Water] stood everywhere. We referred to it as Lake Englewood”; and “We make fun of it. Sometimes, we ask for boats instead of four wheelers.” A retired Union Pacific frontline supervisor testified that “the drainage was always bad, you know,” and that the employees he supervised complained at daily briefings of the inconvenience and safety concerns posed by the muddy conditions. When he notified upper management of the employees' complaints and of their request that the road be paved, they responded that “it was just way too expensive to pave that whole area.”

The jury also heard from Alan Blackwell, a retired Union Pacific track manager and expert in rail yard drainage and ground conditions, who testified that an inadequate drainage system resulting in standing water causes “[the natural soil underneath] to percolate up, and it's going to cause soft track. And ... it's not going to provide a safe walking surface. It's going to be mud.” After reviewing photographs taken during appellees' onsite inspection of the RTC, Blackwell testified that the conditions reflected in the photographs were consistent with the testimony and statements of employees regarding a longstanding drainage problem. He further testified that the RTC's drainage and ground conditions conformed neither to the standard of care in the railroad industry in general nor to the standard of care adhered to by Union Pacific when he worked for the company. According to Blackwell, if appellant had dedicated reasonable and adequate resources and effort, it could have obtained adequate drainage and prevented the standing water and muddy conditions in the RTC at Englewood Yard.

With regard to Gutierrez's injury, appellees presented the testimony of Calvin Parker, the emergency medical technician (“EMT”) who attended to Gutierrez at the scene of the accident and transported him to the hospital. When Parker arrived at the scene, he found Gutierrez under the ladder of the railcar. Gutierrez told him that he had “slipped while climbing a ladder on a railcar” and that he had fallen a distance of “around four [feet]” and landed “on his feet.” The hospital records reflect that Gutierrez told medical providers that he had fallen from a ladder.

Parker further testified that there was mud on Gutierrez's boots, and that he was “sure” there was mud on the ground in the area between the ambulance and Gutierrez. According to Parker, this was his first time to respond to a call inside the rail yard and, despite the passage of time, it still “stood out in [his] mind.” Specifically,

I recall from taking the stretcher from the ambulance where it was parked to where Geronimo was and the process of doing so, a lot of the stretcher tires from the stretcher collected mud. We removed his boot to splint his leg or, technically, his leg. It seemed in line with the story he gave us about the fall in general and muddy boots. Put the boots on the stretcher, as we normally do. We left his right boot on. There was no reason to remove it. When we cleaned the sheets—every time we go to the hospital, we take off the sheets and put on a new pair of linens on the stretcher. And they were muddy in the area of the boots.

Parker further testified that he had to use a garden hose at the emergency room to wash off the gurney. The jury also heard testimony that it had rained earlier in the morning of Gutierrez's shift before the accident.

Appellees also presented Dr. Tyler Kress, an expert in industrial engineering safety and biomedical engineering and injury analysis, to testify regarding Gutierrez's injury. According to Dr. Kress, the type of tibia-fibula fracture that Gutierrez sustained is most commonly the result of falling from a height.² He testified that he has never seen this type of fracture pattern resulting from rolling one's ankle.

2. Appellant's Theory

At trial, appellant argued that Gutierrez had taken a prohibited shortcut to descend the railcar causing him to fall and break his leg.³ Appellant presented manager Ronny Lewis and foreman general Bob Williamson who investigated the accident shortly after Gutierrez was transported to the hospital. Lewis testified that all of the ladders leading to the handbrakes were still covered with dew and that they noticed a trail of three boot prints beginning next to where they found Gutierrez and leading up to the crossover platform at the back of the railcar, from which they concluded that Gutierrez had taken the shortcut to ascend and descend from the crossover platform, causing him to fall. Lewis and Williamson's photographs of the boot prints were admitted at trial. These photos depict no mud on the railcar or the ground. Additionally, Gutierrez's boots, which the hospital returned in a plastic bag, were not muddy.

The accident report that Gutierrez filled out in the hospital recites that he was “[g]etting down [ladder] with hands and feet one step at a time, then having reached ground with both feet on ground I turned to go East and fell.” As to the specific cause of the injury, he wrote “[m]y ankle gave way and I fell.” Asked on the report whether working conditions caused or contributed to the cause of his accident, Gutierrez checked off the box indicating that they did not.

C. Jury's Verdict and Post–Judgment Proceedings

At the conclusion of trial, the jury found appellant negligent and awarded damages to appellees in the total amount of $1,192,000.00.⁴ Appellant's motion for judgment notwithstanding the verdict and motion for new trial were both denied. On August 7, 2012, the trial court signed the final judgment from which appellant timely appealed.

Discussion

A. Causation

Appellant's first issue contends that appellees failed to meet their burden to present legally sufficient evidence of causation. Appellant argues that, contrary to appellees' theory that Gutierrez slipped off the ladder due to mud on his boots, the conclusive evidence showed that mud neither caused nor contributed to the accident. Appellees maintain that the evidence from which the jury could have found that Gutierrez's slip and fall from the railcar and subsequent injury was due to mud on his boots was legally sufficient.

1. Standard of Review

Under FELA, railroads are liable for employees' injuries occurring in the course of their employment resulting from the railroad's negligence. CSX Transp., Inc. v. McBride, ––– U.S. ––––, ––––, 131 S.Ct. 2630, 2634, 180 L.Ed.2d 637 (2011) ; 45 U.S.C. § 51.⁵ FELA's causation burden is not the common law proximate cause standard; rather, the causation standard is one derived from the language of the statute itself that inquires “whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” McBride, ––– U.S. at ––––, 131 S.Ct. at 2636 (quoting Rogers v. Missouri Pac. R.R. Co., 352...