Vallejo v. Bnsf Ry. Co.

• Decision Date: 16 September 2011
• Docket Number: No. 104,553.,104,553.
• Citation: 263 P.3d 208,46 Kan.App.2d 498
• Parties: Luis VALLEJO, Appellee,v.BNSF RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

46 Kan.App.2d 498

263 P.3d 208

Luis VALLEJO, Appellee,

v.BNSF RAILWAY COMPANY, Appellant.

No. 104,553.

Court of Appeals of Kansas.

Sept. 16, 2011.

Syllabus by the Court

1. The notice of appeal shall specify the parties taking the appeal, shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken. K.S.A. 60–2103(b).

2. When an appellate court is determining the sufficiency of a notice of appeal, K.S.A. 60–2103(b) is to be liberally construed to secure the just, speedy, and inexpensive determination of every action or proceeding.

3. An order granting partial summary judgment, leaving other issues to be resolved, is not an appealable order without a court's interlocutory certification under K.S.A. 60–254(b).

4. Under the Federal Employers' Liability Act, an employee is entitled to recover damages if the employer's negligence played any part in producing the injury, no matter how slight.

5. Under the Federal Employers' Liability Act, an employer is entitled to an instruction on contributory negligence if there is any evidence to support that theory.

6. Under the Federal Employers' Liability Act, when an employee is guilty of contributory negligence, the employee is not barred from recovering damages from the employer; however, the damages should be reduced in proportion to the amount of negligence attributable to the employee.

7. Under the Federal Employers' Liability Act, contributory negligence is the doing of some act or an omission by the employee which amounts to a want of ordinary care for his or her own safety, which is the proximate cause of his or her injury, though concurrent with some negligent act of the employer.

8. A plaintiff is contributorily negligent if he or she fails to exercise due care, which is measured by the reasonable person standard.

9. A reasonable person may fully comply with rules established by an employer to promote safety at the workplace and, under a reasonableness standard, still be expected to take other precautions in performing work duties.

10. The defense of assumption of risk is not a permissible defense in any case arising under the Federal Employers' Liability Act.

William P. Coates, Jr., and David M. Druten, of Coates & Logan, LLC, of Overland Park, for appellant.Daniel J. Cohen, of Law Offices of Daniel J. Cohen, of St. Louis, Missouri, and Davy C. Walker, of Law Offices of Davy C. Walker, of Kansas City, for appellee.Before HILL, P.J., GREEN and BRUNS, JJ.GREEN, J.

BNSF Railway Company (BNSF) challenges a jury verdict in favor of Luis Vallejo, who injured his back while working for BNSF. On appeal, Vallejo contends that this court does not have jurisdiction to hear this case. We disagree. In challenging the jury verdict, BNSF alleges that the trial court erred in failing to give a jury instruction on contributory negligence. We agree. Accordingly, we reverse and remand for a new trial. BNSF also argues that the trial court erred in giving a jury instruction on future damages. Because we have reversed the jury's verdict and remanded for a new trial on the contributory negligence instruction issue, we need not address the future damages issue.

Luis Vallejo works as a carman for Burlington Northern Santa Fe Railway Company (BNSF). Vallejo works at the Murray Yard, but often works overtime at other locations. On August 4, 2006, Vallejo worked overtime at the Argentine Yard. Vallejo's assignment was to fabricate a sill step. Vallejo had fabricated a sill step many times before.

At the Argentine Yard, Vallejo did not have the proper tools in his truck so he went to the material department to find more tools. The material man was not in the material department so Vallejo took what tools he could find and went back to the job site. Vallejo knew he did not have adequate tools for the job, but he completed the job with the tools he had.

Vallejo did not feel any pain when he was welding the metal for the sill step. Because Vallejo did not have adequate tools, Vallejo had to exert more force than normal to bend the metal. It was not until Vallejo knelt down to pick up some pieces of metal that he felt the sharp pain in his back. Vallejo waited a few hours before reporting the injury to his supervisor. In his injury report, Vallejo did not report any problems with the tools or equipment. In fact, Vallejo left the tools in his truck for the next carman to use. Vallejo returned to work the day after his injury but only performed light duties.

After being injured, Vallejo went to see BNSF's doctor. That doctor referred him to Dr. Ebelke, a neurosurgeon, who diagnosed Vallejo with a herniated disc. After conservative treatment failed, Dr. Ebelke performed surgery on January 11, 2007. Vallejo recovered from the surgery and returned to work.

When Vallejo's back and leg pain returned, Vallejo then saw Dr. Amundson, an orthopedic surgeon. Dr. Amundson told Vallejo that he had suffered a recurrent herniation and again performed surgery after conservative treatments failed. The second surgery was performed on March 30, 2009. After recovering a second time, Vallejo returned to work.

On August 28, 2008, almost 2 years after the injury occurred, Vallejo filed a FELA action against BNSF. In his petition, Vallejo contends that the equipment caused his injury and that BNSF was negligent for failing to provide proper equipment.

Before trial, the trial court granted Vallejo's motion for partial summary judgment on the affirmative defense of contributory negligence. At the instruction conference, BNSF requested an instruction on contributory negligence which the trial judge denied.

The jury trial began on April 6, 2010, and lasted 3 days. The jury returned a verdict in favor of Vallejo and awarded him $1,121,909 in damages. The jury award is apportioned as follows:

$60,000 for economic loss to date;

$665,909 for future economic loss;

$95,000 for noneconomic loss to date;

$225,000 for future noneconomic loss; and

$86,000 for future medical expenses.

BNSF moved to set aside the verdict and for a new trial. BNSF again argued that a contributory negligence instruction should have been given. The trial court denied BNSF's motion. BNSF timely appealed.

Does this Court Have Jurisdiction to Consider this Appeal on the Contributory Negligence Claim?

On appeal, Vallejo argues that this court does not have jurisdiction to consider BNSF's appeal regarding the contributory negligence claim because BNSF failed to appeal the partial summary judgment granted by the trial court on this issue. Vallejo maintains that this court does not have jurisdiction because BNSF's notice of appeal does not comply with K.S.A. 60–2103(b).

The controlling statute, K.S.A. 60–2103(b), provides: “The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.” Failure to properly designate the judgment being appealed “can lead to a dismissal of part or all of an appeal.” Walker v. Regehr, 41 Kan.App.2d 352, 355, 202 P.3d 712 (2009).

Here, BNSF's notice of appeal states the following:

“[BNSF] intends to and does hereby appeal from the jury verdict entered in the above matter by the jury on April 8, 2010, the trial court's denial of defendant's motion for summary judgment, and the subsequent denial of defendant's post-trial motions in the court's rulings of May 17, 2010 (Journal entry of May 20, 2010).”

It is important to note that this is a specific notice of appeal, because it does not include any of the “catch-all” language this court has seen used in other notices.

The May 20, 2010, journal entry indicates the following rulings were made: (1) BNSF's motion for new trial; and (2) BNSF's request for judgment notwithstanding the verdict.

Vallejo argues that the notice of appeal fails to give this court jurisdiction to hear the issue regarding contributory negligence. Vallejo points out that the May 20, 2010, journal entry refers only to the motion for new trial and request for judgment notwithstanding the verdict. According to Vallejo, the bench ruling on the partial motion for summary judgment on the defense of contributory negligence was made on March 12, 2010. Vallejo further argues that BNSF never sought reconsideration of the partial summary judgment and failed to allege error in that ruling as a basis for its motion for new trial. Therefore, Vallejo contends that this court lacks jurisdiction to review that partial summary judgment ruling on contributory negligence.

We are guided in this inquiry by several past precedents that have considered what the requirements for a notice of appeal should be. For example, our Supreme Court in Key v. Hein, Ebert & Weir, Chtd., 265 Kan. 124, 129, 960 P.2d 746 (1998), held that when we consider discrepancies between a notice of appeal and the issues briefed, we should reject requests to make the requirements of the notice of appeal technical or burdensome. In fact, our Supreme Court's approach has been to use a broad or “liberal construction to secure the just, speedy, and inexpensive determination of every action or proceeding” as required by the Kansas Code of Civil Procedure. See K.S.A. 60–102; Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 720, 869 P.2d 598 (1994).

Moreover, in State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000), our Supreme Court applied a list of factors to determine what issues the Court of Appeals had jurisdiction over based on the notice of appeal. In applying those factors, our Supreme Court held the following:

“Given that the notice of appeal ‘should not be overly technical or detailed’; that the ‘State does not generally take any significant action when receiving a notice of appeal’; that the typographical error in this case ‘does not harm or even affect the State in any appreciable way’; that the State has not shown surprise or prejudice; that...