Union Pacific Railroad Company v. Barber, 03-57

CourtSupreme Court of Arkansas
PartiesUNION PACIFIC RAILROAD COMPANY, Appellant, v. Chris BARBER and Claudette Barber, Allied Waste Industries, Inc., Appellees
Docket Number03-57
Decision Date01 January 2004

Page 1

Chris BARBER and Claudette Barber, Allied Waste Industries, Inc., Appellees
Supreme Court of Arkansas
February 26, 2004.

Appeal from the St. Francis County Circuit Court, No. CIV-98-312, Hon. Harvey L. Yates, Judge, Affirmed.


This case arises from a collision between a train owned and operated by Appellant Union Pacific Railroad Company (Union Pacific) and a garbage truck occupied by Appellee Chris Barber. A jury returned a verdict that found Union Pacific negligent and awarded Mr. Barber and his wife $5.1 million in compensatory damages. In addition, the jury concluded that Union Pacific acted with malice or reckless disregard and awarded the Barbers $25 million in punitive damages. We affirm the judgment.

At about 9:15 a.m, on January 19, 1998, a garbage truck owned by Browning-Ferris, Inc., was struck in St. Francis County by one of Union Pacific's freight trains. The garbage truck was traveling north over the railroad crossing as the train was traveling eastbound on the track. At the time of the accident, Charles Rolfe was driving the garbage truck while appellee Chris Barber sat in the passenger seat. The train struck the rear portion of the garbage truck on the driver's side, killing Mr. Rolfe and injuring Mr. Barber.

On October 19, 1998, Mr. Barber and his wife, Claudette Barber (hereinafter "the Barbers"), filed a complaint against Union Pacific Railroad Company, L.E. Piper, Jr., the train engineer at the time of the accident (hereinafter referred to collectively as "Union Pacific"), and Asplundh Brush Control Company. The complaint alleged that the accident was caused by Union Pacific's failure to control vegetation within its right-of-way in violation of Ark. Code Ann. § 23-12-201, failure to properly sound audible warning devices, failure to keep a proper lookout, and operating the train at an excessive speed for the conditions. In addition, the Barbers alleged that the crossing was abnormally dangerous. The Barbers later nonsuited the case against Asplundh pursuant to Arkansas Rule of Civil Procedure 41(a).

Meanwhile, Mr. Barber filed a workers' compensation claim against his employer, Allied Waste Industries, Inc.1 In response to that claim, Mr. Barber was compensated in an amount exceeding $200,000.

Union Pacific answered the Barbers' complaint, denying the material allegations, and affirmatively asserting that the claim of excessive speed was preempted by federal law. Soon thereafter, the parties entered into settlement negotiations. After mediation, Union Pacific and the Barbers agreed to "settle around" Allied's workers' compensation lien.2 The settlement called for Union Pacific to pay the Barbers $ 290,000 on or before February 18, 2000, and was contingent upon a court or the Workers' Compensation Commission approving the "settle around" provision.

A notice of intent to settle was forwarded to Allied, and on February 10, 2000, the parties filed a joint petition to approve settlement around the workers' compensation carrier. On February 28, 2000, Allied filed an objection to the parties settling around Allied's statutory lien pursuant to Ark. Code Ann. § 11-9-410 (Repl. 2002), and asserted that it was entitled to a lien on the proceeds of any settlement. In addition, Allied sought to intervene in the matter pursuant to Ark. R. Civ. P. 24 and Ark. Code Ann. § 11-9-410. A hearing by telephone conference on the settlement was set for February 28, 2000. Prior to the hearing, the Barbers sent a proposed order by facsimile to Union Pacific. According to the facsimile, counsel for the Barbers intended to submit the proposed order to the court after the telephone hearing. The record does not indicate whether the order was ever presented to the court; but, on March 3, 2000, the court filed a letter order that stated as follows:

The court having considered Allied Waste Industries, Inc's objection to petition to approve settlement around workers' compensation carrier and all matters finds:

That in accordance with Ark. Code Ann. § 11-9-410 and Arkansas case law that the Plaintiffs can settle around the W.C.C. carrier if the settlement is approved by the court. However, the W.C.C. carrier will have a lien on the proceeds of the settlement.

In response to that letter order, the Barbers notified Union Pacific via facsimile of their intent to appeal the court's order.

At that point, and without an appeal, the parties continued to litigate the matter in the circuit court. Allied filed a complaint in intervention, which was answered by Union Pacific and the Barbers. The Barbers continued with discovery, requesting a second set of admissions, which request elicited an objection by Union Pacific in a conjunctive-motion seeking a protective order. On June 23, 2000, the court set May 29, 2001, as the trial date.

On February 12, 2001, the Barbers filed an amended complaint. In their amended complaint, the Barbers alleged that Union Pacific failed to maintain the track at the crossing to the Federal Railroad Administration's Class 4 standards, failed to issue a "slow order" calling for a speed restriction over that rail crossing, and requested punitive damages. Union Pacific filed a joint answer and motion to dismiss, denying the material allegations, and affirmatively pleading that the Barbers' claims on track maintenance and "slow orders" were preempted by federal law.

In a letter dated March 13, 2001, counsel for the Barbers proposed to start deposing witnesses after acknowledging that "[s]ince March 12th has come and gone, it appears we will be trying this case." On March 27, 2001, Union Pacific filed a motion to approve the settlement agreement procured on February 2, 2000. The Barbers responded by filing an opposing motion to withdraw their previous joint petition to settle around the workers' compensation carrier. The circuit court set a new trial date for January 7, 2002, and, by order dated August 6, 2001, denied Union Pacific's motion to approve the settlement agreement. On December 13, 2001, the court concluded that the case was not ready for trial because the case "had turned into, not an issue of what happened to whoever (sic) the poor party out there was, it's turned into a fuss between the lawyers on evidentiary issues." As a result, the trial was reset to begin on April 30, 2002.

Following several discovery disputes, the circuit court ruled on April 29, 2002, that the Barbers would be entitled to a jury instruction on spoliation of evidence. On April 30, 2002, the circuit court ruled on Union Pacific's various motions in limine, including a request that the court prohibit any evidence or argument that the train was traveling at an excessive speed. The court granted the motion in limine as to the Barbers' excessive-speed claim on grounds of federal preemption, but denied the motion as to their claim of negligent failure to issue a "slow order."

At the close of the Barbers' case-in-chief, and again at the close of all the evidence, Union Pacific moved for a directed verdict on the Barbers' claims that the crossing was abnormally dangerous, that Union Pacific negligently failed to issue or to disclose a "slow order," and on the request for punitive damages. The court denied Union Pacific's directed-verdict motions. The case was bifurcated with the jury first deciding the issues of liability for negligence, compensatory damages, and liability for punitive damages. The matter of negligence was submitted to the jury on a general verdict form.

While the jury was deliberating on the issues of negligence liability, punitive liability, and compensatory damages, counsel for Union Pacific observed Attorney B. Michael Easley, counsel for the Barbers, pressing his ear against the deliberation room. Although Union Pacific's counsel promptly confronted Attorney Easley, causing him to remove his ear from the jury-room door, neither counsel for Union Pacific nor counsel for the Barbers brought the incident to the court's attention at that time.

The jury returned a verdict in favor of L. E. Piper, the locomotive engineer, but found for the Barbers on their complaint against Union Pacific and awarded compensatory damages in the amount of $5,000,000 to Mr. Barber and $100,000 to his wife. In response to a special interrogatory, the jury found that Union Pacific acted with malice or in reckless disregard of the consequences, thereby establishing liability for a punitive damages award. The amount of punitive damages was set to be determined by the jury in the second phase of the bifurcated trial.

Once the jury verdict was returned and read by the court, Union Pacific informed the court of Attorney Easley's conduct during jury deliberations and moved for a mistrial. The circuit court denied the request for a mistrial, but ruled that the only additional proof it would allow the Barbers to present during the second phase of the trial would be evidence of Union Pacific's net worth. Without presenting argument of any kind, the parties stipulated to the net worth of Union Pacific at $9.6 billion. That figure was written on a board and displayed to the jury at which time the jury retired to deliberate on the amount of the punitive damages award.

While the jury deliberated, the trial judge called the attorneys into his chamber for a discussion off the record. Following that discussion, the court went on the record under a conditional seal, whereupon Attorney Easley expressed remorse for his conduct in pressing his ear to the jury-room door during deliberations and submitted himself to sanctions. After considering the events and the manner in which the punitive damages portion of the case had been handled, the court concluded that Union Pacific suffered no prejudice in the matter. Defense counsel made no comments on the record. The court reiterated that there would be no basis for granting a...

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