Union Pac. R.R. Co. v. Nami

• Decision Date: 24 June 2016
• Docket Number: NO. 14–0901,14–0901
• Citation: 498 S.W.3d 890
• Parties: Union Pacific Railroad Company, Petitioner, v. William Nami, Respondent
• Court: Texas Supreme Court

498 S.W.3d 890

Union Pacific Railroad Company, Petitioner,

v.William Nami, Respondent

NO. 14–0901

Supreme Court of Texas.

Argued November 3, 2015

Opinion delivered: June 24, 2016

Rehearing Denied September 23, 2016

Christina Fontenot Crozier, Kent G. Rutter, William A. Feldman, Haynes and Boone, LLP, Houston TX, Meggan S. Crow, Robert B. Burns Jr., Burns Anderson Jury & Brenner, LLP, Austin TX, for Petitioner.

Mark A. Zito, Jones & Granger, Houston TX, Cynthia T. Sheppard, Law Office of Cynthia T. Sheppard, Cuero TX, Michael A. Sheppard, District Attorney, Cuero TX, for Respondent.

CHIEF JUSTICE HECHT delivered the opinion of the Court, in which JUSTICE GREEN, JUSTICE WILLETT

, JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE BOYD, JUSTICE DEVINE, and JUSTICE BROWN joined.

A railroad employee who contracted West Nile virus

from a mosquito bite contends that his employer is liable for damages under the Federal Employers' Liability Act (“FELA”),¹ which requires railroads to provide their employees reasonably safe places to work. FELA liability is generally based on common-law negligence principles. One well-established principle, part of the doctrine of ferae naturae, limits a property owner's liability for harm from indigenous animals that he has not attracted to the property. In the circumstances presented, we conclude that the doctrine applies and precludes the railroad's liability. We reverse the judgment of the court of appeals² and render judgment for petitioner.

I

In September and October 2008, William Nami, age 58, a 32–year employee of Union Pacific Railroad, was operating a tamping machine in Brazoria County. The tamper was a very large, complex piece of equipment, similar in size to a railroad boxcar, and weighing many tons. It was parked on a siding off the main track near Sweeny, a small town in Brazoria County about 55 miles west of Galveston and about 20 miles from the Gulf of Mexico. Nami lived in Cuero, a small town in DeWitt County about 140 miles west of Galveston and about 50 miles north of the Gulf. Each morning he would drive some 45 miles south to Union Pacific offices in Bloomington, where he attended meetings, including safety meetings. His crew would then drive some 85 miles east, roughly parallel to the coast, to Sweeny, arriving around 10:00 a.m. He and the crew would do maintenance work on the tamper on the siding until directed to move it to the main track and drive it to the area where it was needed. When the tamper arrived at the appointed worksite, Nami would move it very slowly down the railroad tracks, lifting up the track to level it, packing the ballast beneath the crossties, and tamping each tie to firm support for the tracks. Nami operated the tamper from inside a large cab on the machine while another worker outside the machine watched to make sure the track stayed level, and the two took turns. A skilled operator could repair about a mile of track in a workday. Nami would finish each day in time to return to Bloomington with his crew by 3:30 p.m., and then drive home.

Sweeny swarmed with mosquitoes. Driving to work there, Nami passed a sign calling Sweeny the “mosquito capital of the world.”³ And Hurricane Ike, which made landfall over Galveston on September 13, 2008, drenching Brazoria County and all of South Texas, only made matters worse. Nami did not notice mosquitoes at his home in Cuero, but he did at work. The railroad right-of-way at the Sweeny siding was narrow and covered in weeds and high grass and sometimes pools of water. Nami was regularly bitten repeatedly as he worked on the tamper.⁴ He was also bitten by mosquitoes inside the tamper cab. The cab had holes in its walls and floor, its door did not close properly, and its air conditioner did not work. Nami complained to his superiors of these conditions to no avail.

Union Pacific knew about the mosquito problem and knew that mosquitoes could carry the West Nile virus

. The main transmitters, the Culex genus, are usually most active at dawn and dusk. Most people infected with the virus experience no symptoms or only minor ones, but some suffer serious symptoms including headaches and fever. Fewer than 1% develop a life-threatening neurological infection leading to encephalitis

and meningitis.⁵ Union Pacific had warned its employees, beginning in 2002, about the risk of West Nile virus. In May 2008, it issued a bulletin explaining the nature of the virus, the fact that it was spread by mosquitoes, the risk and symptoms of infection, and warning employees to use mosquito repellent. Union Pacific did not furnish mosquito repellent to its employees and did not mow the right-of-way or spray it with pesticide. Because the right-of-way is so narrow, it is doubtful such measures would have helped, as mosquitoes could have flown onto the siding from the surrounding area.

Nami did not see the bulletin, never received the warnings, was unaware of the risks the West Nile virus

posed, and took no steps to avoid being mosquito-bitten. In late September 2008, Nami began suffering flu-like symptoms, and after several weeks, as his condition steadily worsened, he was diagnosed with West Nile virus and encephalitis. Complications from the virus prevented Nami from returning to work and resulted in long-term health problems.

Nami sued Union Pacific under FELA for failing to provide a safe workplace. Union Pacific denied that it was negligent in failing to provide a safe workplace and that Nami had been bitten at work. Nami's trial expert testified that in Brazoria County in 2008, 15 pools of mosquitoes tested positive for the West Nile virus

, adding that it was hard to say whether that number was high or low. Brazoria County comprises 1,597 square miles. She also testified that the Health Department reported only one other person in the county (population 301,228 in July 2008) tested positive that year.

The jury was instructed that they could find Union Pacific negligent only “in the manner or extent it provided [Nami] warnings/instructions about mosquitos or made available to [Nami] mosquito spray”. The jury was also instructed that Union Pacific's negligence need only have been “a cause, in whole or in part” of Nami's disease. A jury found that both Union Pacific and Nami negligently caused his disease, attributing 80% responsibility to Union Pacific and 20% to Nami. The trial court rendered judgment on the verdict, awarding Nami $752,000 in damages.

On appeal, Union Pacific argued that under the common-law doctrine of ferae naturae, it owed Nami no legal duty to protect him from mosquitoes.⁶ The court of appeals held that even if the doctrine applied, a matter it did not decide, Union Pacific was still liable for negligence because it had “created the conditions that attracted the mosquitoes to Nami's Sweeny worksite” by not repairing the tamper cab and not mowing the right-of-way.⁷ Accordingly, the court affirmed the judgment for Nami.

We granted Union Pacific's petition for review.⁸

II

FELA provides in pertinent part that “[e]very common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... resulting in whole or in part from the negligence ... of such carrier....”⁹ FELA thus imposes on railroads the duty to use reasonable care in providing their employees a safe workplace.¹⁰

The causation element of a FELA action is a sharp departure from the common-law requirement of proximate cause. The United States Supreme Court in CSX Transportation, Inc. v. McBride

recently explained:

FELA's language on causation ... is as broad as could be framed. Given the breadth of the phrase “resulting in whole or in part from the [railroad's] negligence,” and Congress' humanitarian and remedial goals, ... in comparison to tort litigation at common law, a relaxed standard of causation applies under FELA.... Under FELA the test of a jury case is simply 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.¹¹

But with respect to FELA's liability element, the Supreme Court explained in Consolidated Rail Corp. v. Gottshall

that while “Congress' goal in enacting [FELA was] alleviating the physical dangers of railroading”,¹²

FELA is ... not ... a workers' compensation statute.... FELA does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur. And while what constitutes negligence for the statute's purposes is a federal question, we have made clear that this federal question generally turns on principles of common law: [FELA] is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has imported into those terms. Those qualifications ... are the modification or abrogation of several common-law defenses to liability, including contributory negligence and assumption of risk. Only to the extent of these explicit statutory alterations is FELA an avowed departure from the rules of the common law. Thus, although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis.¹³

In Gottshall,

a railroad employee sued under FELA for negligent infliction of emotional distress for having witnessed a coworker and friend die from heat, humidity, and heavy exertion on the job.¹⁴ In defining the cause of action of negligent infliction of emotional distress, the court of appeals had refused to follow common-law principles and instead developed its own.¹⁵ The Supreme Court squarely rejected this approach.¹⁶ “Because FELA is silent on the issue of negligent infliction of emotional distress”, the Supreme Court wrote, “common-law principles must play a significant role in our decision.”¹⁷ The Supreme Court...