Free Trial Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

DEFENDANT UNION PACIFIC'S TRIAL BRIEF

COMES NOW, Defendant, Union Pacific Railroad Company ("Union Pacific") by and through its undersigned attorney, and hereby submits the following Trial Brief: I. FACTS On March 29, 2004, Mr. Bull filed his Complaint and Jury Demand against the Union Pacific Railroad Company in the United States District Court for the District of Colorado, Civil Action No. 04-cv-00560-OES-BNB. In paragraph VI of Plaintiff's

Complaint, Plaintiff alleged as follows with regard to his repetitive stress and cumulative trauma claim: "That over the course of his lengthy career as a locomotive conductor with Defendant, Plaintiff has been subjected to excessive repetitive stress and cumulative trauma which has caused chronic and permanent injuries to his spine, due to the negligence of Defendant." In paragraph VII of Plaintiff's Complaint, Plaintiff alleged as follows with regard to his traumatic rough ride claim: "That on February 28, 2003, Plaintiff was thrown about

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the cab of locomotive UP6263, and as a direct result received acute and permanent injuries to his spine, due to the negligence of Defendant." In paragraph VIII of Plaintiff's Complaint, Plaintiff alleged as follows: "That UP, by and through its agents and employees, was negligent and careless, and that these actions violated the Federal Employers' Liability Act, Locomotive Inspection Act, Federal Railroad Administration Regulations and other safety statutes and regulations enacted pursuant to Federal Law for the protection of railroad employees, and that said actions and/or omissions were responsible for Plaintiff's injuries." Mr. Bull, during his deposition, admitted that on February 9, 1987, he was working for the Union Pacific when he was thrown about a caboose and injured his neck. For four months after this accident Mr. Bull could not turn his head. Since the day of this accident Mr. Bull admitted that he has had pain in his neck and upper back. The Union Pacific filed a Motion for Summary Judgment based on the Statute of Limitations for the injuries, pain and structural damage to Mr. Bull's neck and upper back which he sustained in the past and will continue to sustain in the future as a result of the February 9, 1987 injury. Mr. Bull argued that the February 28, 2003, traumatic rough ride caused a new injury to his neck and that he filed his Complaint for this new injury within the Statute of Limitations. The Court granted the Union Pacific's Motion for Summary Judgment and held that the injuries, pain and structural damage which Mr. Bull sustained to his neck and upper back from February 9, 1987 to February 28, 2003 which are attributable to the February 9, 1987 incident are barred by the Statute of Limitations. The Court went

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on to hold that if the traumatic rough ride on February 28, 2003 merely aggravated the pre-existing neck injury caused by the February 9, 1987 incident, this claim for aggravation would also be barred by the Statute of Limitations. Plaintiff can recover for the neck injuries he allegedly sustained as a result of the February 28, 2003 traumatic rough ride, only if he can prove that he sustained a new injury as a result of this traumatic rough ride.

II.

DEFENDANT'S DUTY TO PLAINTIFF UNDER THE FELA Plaintiff has asserted a claim against the Union Pacific under the Federal

Employer's Liability Act, 45 U.S.C. § 51. Under the Federal Employers' Liability Act, it was the continuing duty of the Union Pacific, as Plaintiff's employer, to provide him with a reasonably safe place in which to work and reasonably safe tools and equipment with which to perform his work. Shenker v. Baltimore & O.R. Co., 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed. 2d 709 (1963); New York, N.H. & H.R. Co. v. Henagan, 364 U.S. 441, 81 S.Ct. 198, 5 L.Ed. 2d 183 (1960). In order for Plaintiff to recover on his claim under the FELA he must prove that the Union Pacific was negligent. Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944); Davis v. Burlington Northern Inc., 541 F.2d 182 (8th Cir. 1976), cert. denied, 429 U.S. 1002 (1976); Inman v. Baltimore & Ohio Railroad Co., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959); Nivens v. St. Louis Southwestern Railway Co., 425 F.2d 114 (5th Cir. 1970), cert. denied, 400 U.S. 879 (1970). Without negligence there is no liability since the FELA applies only to negligently caused injuries and does not make the Union Pacific an insurer of the safety of its 3

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employees. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 98 L.Ed. 497 (1949); Terminal Railroad Ass'n. of St. Louis v. Howell, 165 F.2d 135 (8th Cir. 1948). The Union Pacific's duty to Plaintiff under the FELA is summarized in 3A Federal Jury Practice and Instructions, K. O'Malley, J. Grenig and W. Lee, § 155.23 (5th Ed. 2001), as follows: At the time and place in question Defendant, Union Pacific, had a continuing duty as an employer at the time and place in question, to use ordinary care under the circumstances in furnishing the Plaintiff, with a reasonably safe place in which to work. It was also Defendant Union Pacific's continuing duty to use ordinary care under the circumstances to maintain and keep such place of work in a reasonably safe condition. This does not mean that Defendant Union Pacific is a guarantor or insuror of the safety of the place to work. The extent of the Defendant Union Pacific's duty is to exercise ordinary care under the circumstances to see that the place in which the work is to be performed is reasonably safe under the circumstances shown by the evidence. Under the FELA, the Union Pacific had a duty to Plaintiff to exercise reasonable care to provide him a reasonably safe place to work, reasonably safe conditions in which to work, and reasonably safe tools and equipment. Beeber v. Norfolk Southern Corp., 754 F.Supp. 1364 (N.D. Ind. 1990). The test is whether the Union Pacific

exercised reasonable care and diligence to make the tools and place of work reasonably safe. Atlantic Coastline R. Co. v. Chancey, 76 So.2d 871 (Fla. 1954). The Fifth Circuit in Atlantic Coast Line R. Co. v. Dixon, 189 F.2d 525 (5th Cir. 1951), cert. denied, 342 U.S. 830 (1951), set forth the Union Pacific's duty to Plaintiff under the FELA as follows: The Federal Employers' Liability Act does not make the employer an insurer of the safety of its employees while they are on duty. The employer is not held to an absolute responsibility for the reasonably safe 4

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condition of the place, tools and appliances, but only to the duty of exercising reasonable care to that end, the degree of care being commensurate with the danger reasonably to be anticipated. Baltimore & O.S.W.R. Co. v. Carroll, 280 U.S. 491, 50 S.Ct. 182, 74 L.Ed. 566. The basis of the employer's liability is its negligence, not the mere fact that the injury occurred. Except as otherwise provided in the Act, liability is determined by common law principles which define negligence as lack of due care in the circumstances, that is, the doing of acts which a reasonably prudent person would not have done, or the failure to do what a reasonably prudent person would have done in the circumstances, or both. Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Missouri Pac. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; McGivern v. Northern Pac. Ry. Co., 8 Cir., 132 F.2d 213, 217. The employer's duty to its employees is to use reasonable care and prudence to the end that the place in which they are required to work, and the appliances with which they work, are reasonably suitable and safe for the purpose, and in the circumstances, in which they are to be used. The test is not whether the tools to be used and the place in which the work is to be performed are absolutely safe, nor whether the employer knew the same to be unsafe, but whether or not the employer has exercised reasonable care and diligence to make them safe. Missouri Pac. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062; Hough v. Texas & P.R. Co., 100 U.S. 213, 25 L.Ed. 612; Washington & G.R. Co. v. McDade, 135 U.S. 554, 10 S.Ct. 1044, 34 L.Ed. 235; Baltimore & O.S.W.R. Co. v. Carroll, 280 U.S. 491, 50 S.Ct. 182, 74 L.Ed. 566; Yazoo & M.V.R. Co. v. Mullins, 249 U.S. 531, 39 S.Ct. 368, 63 L.Ed. 754; McGivern v. Northern Pac. Ry. Co., 8 Cir., 132 F.2d 213, 217; Aqua System v. Kodakoski, 5 Cir., 88 F.2d 395, 398. **** The employer is not required to furnish the employee the latest, best, or most perfect appliances with which to work, nor to discard standard appliances already in use upon the discovery of later improvements, provided those in use are reasonably safe and suitable. Chicago & N.W.R. Co. v. Bower, 241 U.S. 470, 36 S.Ct. 624, 60 L.Ed. 1107, 1109; Baltimore & O.R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419. Id. at 526-527.

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III.

WORKPLACE SAFETY STANDARDS The FELA does not make the Railroad an insurer of the safety of its employees

while they are on duty. The Railroad is not absolutely responsible for the safe condition of its workplace, tools and appliances, but is only obligated to exercise reasonable care, that degree of care which is commensurate with the danger reasonably to be anticipated. As a general rule, the test is not whether the workplace is absolutely safe, but, whether the Railroad has exercised reasonable care and diligence commensurate with the practical operation of the Railroad. In this regard, the Railroad is not bound to anticipate every possible accident that could occur, since it is impossible to eliminate all danger in the workplace. Atlantic Coast Line R.R. v. Dixon, 189 F.2d 525 (5th Cir. 1951), cert. denied, 342 U.S. 830 (1951); Isgett v. Seaboard Coast Line R.R., 332 F.Supp. 1127, 1139 (1971); Chicago R. I. & P. R. R. v. Lint, 217 F.2d 279, 286 (1954); Anderson v. Elgin, Joliet & Eastern Ry., 227 F.2d 91 (7th Cir. 1955).

IV.

NORMAL CONDITIONS OF WORK Under the FELA a Railroad cannot be held liable for injuries caused as the result

of conditions which are inherent, normal and usual in the particular occupation of the employee and which cannot be avoided by reasonable care and caution on the Railroad's part. Liability because of an alleged unsafe workplace does not arise if the unsafeness is inherent in the very doing of the work itself. The Plaintiff cannot recover in this case merely by showing that the work involved was difficult or inconvenient in some way. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 501 (1914); Wilkerson v.

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McCarthy, 336 U.S. 53 (1949); Reynolds v. Atlantic Coast Line R.R., 336 U.S. 207 (1949); Elmore v. Missouri Pac. R.R., 301 S.W.2d 776 (Mo. 1957).

V.

NOTICE OF DEFECTS REQUIRED The rule is firmly established that where Plaintiff alleges Railroad liability based

on an unsafe workplace or defective equipment, the Plaintiff must establish by a preponderance of the evidence that: 1. The Railroad either knew or in the exercise of reasonable care should have known that the alleged unsafe conditions or defects existed; and The Railroad knew or in the exercise of reasonable care should have known that the unsafe conditions or defects constituted an unreasonable risk of harm to the Plaintiff. Waller v. Northern Pacific Term. Co., 166 P.2d 488 (Or. 1946), 329 U.S. 742; O'Hara v. Long Island R.R., 665 F. 2d 8 (2nd Cir. 1981); Heywood v. D. & R. G. W. R. R., 307 P.2d 1045 (Utah 1957).

2.

VI.

FORESEEABILITY OF INJURY REQUIRED In order for the Railroad to be guilty of negligence which, in whole or in part,

resulted in the Plaintiff's injuries, it must be shown that the acts of the Railroad were such that a reasonably prudent person would have known that they were likely to produce injuries. In other words, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that the injury ought to have been foreseen in the light of the attendant circumstances. Reynolds v. Atlantic Coastline R.R., 336 U.S. 207 (1948); Reynolds v. Atlantic Coastline R.R., 196 F.2d 643

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(1952); Atlantic Coastline R.R. v. Caraven, 185 F.2d 176 (1950), cert. denied 340 U.S. 952 (1950).

VII.

METHODS OF WORK The fact that there may be other arguably more advanced methods in use for

accomplishing an assigned job is of no significance where the method used at the time of the alleged injury was not an inherently unsafe one. If the task at which the Plaintiff was injured was one that could be done safely by the method which was being used, there can be no negligence. Soto v. Southern Pacific Transportation Company, 644 F. 2d 1147 (5th Cir. 1981).

VIII.

PLAINTIFF'S DUTY OF CARE FOR HIS OWN SAFETY A Railroad cannot be charged with negligence for failing to anticipate that a

Plaintiff would not take the ordinary and proper precautions to protect and safeguard Plaintiff's own health and welfare. Railroad employees must as part of their duties exercise due care for their own safety. In this case, the Railroad had the right to

assume that Plaintiff would exercise reasonable care for Plaintiff's own safety at the time and place of the incident in question. Reading Ry. v. Pope & Talbot, Inc., 192 F. Supp. 663, 667 (E.D. Pa. 1961); Freightways, Inc. v Stafford, 217 F.2d 831, 836 (8th Cir. 1955); Atlantic Coast Line R. Co. v. Dixon, 189 F.2d 525, 527 (5th Cir. 1951), cert. denied 342 U.S. 830 (1951); Cheffey v. Pennsylvania R.R., 79 F. Supp. 252 (E.D. Pa. 1948); Norfolk & Western Ry. v. Hall, 49 F.2d 692, 695 (4th Cir. 1931); Hardie v. N.Y.

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Harbor Dry Dock Corp., 9 F.2d 545, 546 (C.C.A. 2, 1925); Kurn v. Stanfield, 111 F.2d 469, 473 (8th Cir. 1940).

IX.

PLAINTIFF'S FAILURE TO OBEY SAFETY RULES MAY BE CONSIDERED BY THE JURY IN ASSESSING CONTRIBUTORY NEGLIGENCE An employee's failure to obey safety rules may be considered by the jury in

assessing contributory negligence. Plambeck v. Union Pacific R. Co., 232 Neb. 590, 441 N.W.2d 614, 618 (Neb. 1989). The following Union Pacific Safety Rule was in force and effect at the time of the February 28, 2003 incident: 81.7.2 Unexpected Movement When on or in engines, cars, cabooses or other equipment, anticipate and protect yourself from sudden stops, starts, slack action, excessive lateral, or unexpected motions. When duties require moving around in equipment be adequately braced, maintain a firm hand hold (?????) and sit down quickly and safely. Remain seated when stopping, entering or leaving initial or final terminals. Stay out of cars being or about to be switched and notify all occupants before switching cars. When above normal vertical or lateral motion is detected on a locomotive, the train dispatcher should be notified. Engineer will reduce speed to a level that provides a normal ride.

X.

PLAINTIFF'S CONTRIBUTORY NEGLIGENCE AS THE SOLE CAUSE OF HIS ACCIDENT Proof that an employee's contributory negligence was the sole cause of his injury

is a valid defense under the FELA because it eliminates the possibility that the employer's negligence contributed in whole or in part to the injury. Thus, Union Pacific

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is entitled to an instruction that if the Plaintiff's injuries were caused by Plaintiff's own sole negligence, the Plaintiff may not recover. Where the Plaintiff's contributory

negligence is the sole cause of Plaintiff's injuries, Plaintiff may not recover under the FELA. Northern Pac. & Co. v. Mely, 219 P.2d 199 (9th Cir. 1954); Barnett v. Terminal R.R. Assoc. of St Louis, 228 F.2d 756 (8th Cir. 1956), Walden v, Illinois Central R.R., 975 F.2d 361 (7th Cir. 1992); Duron v. Western R.R. Builders Corp., 856 F.Supp. 1538 (D. New Mex. 1994); Chicago, St. P. M. & 0. R. Co. v. Arnold, 160 F. 2d 1002 (8th Cir. 1947).

XI.

THE JURY SHOULD NOT BE GIVEN AN ASSUMPTION OF THE RISK INSTRUCTION The Defendant did not plead assumption of the risk in its Answer or in any other

pleading. The Defendant will not introduce any evidence at trial which will in any way lead the jury to believe that Plaintiff should be denied recovery because Plaintiff assumed the risks of his employment with the Defendant. As such, the defense of assumption of the risk is not an issue in this case. Since the 1939 amendment of the Federal Employers' Liability Act (hereinafter "FELA"), no vestige of the defense of assumption of risk remains. In Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610 (1943), Justice Frankfurter commented in his concurring opinion that juries are likely to be confused if given an assumption of the risk instruction. Numerous courts since the Tiller decision have

echoed Justice Frankfurter's criticism of the assumption of risk instruction. See, e.g., DePascale v. Pennsylvania R. Co., 180 F.2d 825, 827 (3rd Cir. 1950); Texas and 10

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Pacific Ry. Co. v. Buckles, 232 F.2d 257 (5th Cir. 1956), cert. denied, 351 U.S. 984, 76 S. Ct. 1052, 100 L. Ed. 1498 (1956). The court in Casko v. Elgin, Joliet and Eastern Railway Co., 361 F.2d 748, 751 (7th Cir. 1966) agreed with the Defendant that the statutory elimination of the defense of assumption of the risk when read to the jury in FELA cases serves only to obscure the issues in the case. The court in Seaboldt v. Pennsylvania Railroad Co., 290 F.2d 296, 300 (3rd Cir. 1961) went one step further and described the giving of an assumption of the risk instruction in a case arising under the FELA as coming "very close to being grounds for a new trial even though we are not compelled to say it is alone sufficient." Under the FELA, where assumption of the risk is not made an issue by the pleadings or the evidence, an instruction on assumption of the risk should not be given. Auer v. Burlington Northern RR Co., 229 Neb. 504, 428 N.W.2d 152, 158 (1988). In the present case, assumption of the risk has not been made an issue by the pleadings nor will it be made an issue by the evidence at trial. As such, an instruction on assumption of the risk should not be given. It is anticipated that Plaintiff will submit the following proposed jury instruction for the Court's consideration: DEFENDANT'S CLAIM OF CONTRIBUTORY NEGLIGENCE In addition to denying that any negligence of the Defendant caused any injury or damage to the Plaintiff, the Defendant alleges, as a further defense, that some contributory negligence on the part of the Plaintiff himself was a cause of any injuries and consequent damages Plaintiff may have sustained. Contributory negligence is fault on the part of a person injured, which corroborates in some degree with the negligence of another, and so helps to bring about the injury.

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By the defense of contributory negligence, the Defendant in effect alleges that, even though the Defendant may have been guilty of some negligent act or omission which was one of the causes, the Plaintiff himself, by his own failure to use ordinary care under the circumstances for his own safety, at the time and place in question, also contributed one of the causes of any injuries and damages Plaintiff may have suffered. The burden is on a Defendant, alleging the defense of contributory negligence, to establish, by a preponderance of the evidence in the case, the claim that the Plaintiff himself was also at fault, and that such fault contributed one of the causes of any injuries and consequent damages Plaintiff may have sustained. 3 E. Devitt, C. Blackmar and M. Wolff, Federal Jury Practice and Instructions, § 94.16 (4th Ed. 1987). It is anticipated that Plaintiff will request that the Court add the following parenthetical paragraph to the contributory negligence instruction set out above. You may not find contributory negligence on the part of the Plaintiff, however, simply because he acceded to the request or direction of responsible representatives of his employer that he worked at a dangerous job, or in a dangerous place, or under unsafe conditions. This paragraph is the final parenthetical paragraph in the contributory negligence instruction set forth in § 94.16 of 3 E. Devitt, C. Blackmar and M. Wolff, Federal Jury Practice and Instructions, (4th Ed. 1987). In the Notes section which follows this

instruction, it is stated that, "the last parenthetical, paragraph may be indicated to distinguish 'assumption of the risk' from 'contributory negligence.'" In the present case, assumption of the risk was not asserted in the pleadings and will not be argued at trial. As such, it would only serve to confuse the jury if this last parenthetical paragraph is added to the contributory negligence instruction. In

Plambeck v. Union Pacific R. Co., 232 Neb. 590, 441 N.W.2d 614, 619 (Neb. 1989), the

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Nebraska Supreme Court indicated that the last parenthetical paragraph in the contributory negligence instruction set forth in § 94.16 of 3 E. Devitt, C. Blackmar and M. Wolff, Federal Jury Practice and Instructions (4th Ed. 1987) should only be given in a case where the injured employee was directed or requested by the Railroad to work at a dangerous job or in a dangerous place. For example, this parenthetical paragraph would be appropriate if the Plaintiff were required to work in a dusty shop and contracted a lung disease. In Cruz v. Union Pacific Railroad Company, 707 P.2d 360 (Colo. App. 1985), the trial court refused to include the final parenthetical paragraph in the contributory negligence instruction set forth in § 94.16 of 3 E. Devitt, C. Blackmar and M. Wolff, Federal Jury Practice and Instructions (4th Ed. 1987), and the appellate court affirmed, stating as follows: The court gave Plaintiff's requested instruction on contributory negligence with the exception of a cautionary closing paragraph which stated: "You may not find contributory negligence on the part of the Plaintiff, however, simply because he acceded to the request direction of the responsible representatives of his employer that he works at a dangerous job, or in a dangerous place, or under unsafe conditions." And, the court refused to give Plaintiff's tendered instruction on assumption of risk not being a defense. Plaintiff contends that these rulings constituted reversible error. We disagree. In the present case, Plaintiff was aware of two potentially unsafe conditions at his workplace ­ the oil which had accumulated on the floor of the caboose, and the slack action which occurs when the train travels downhill. U.P. did not claim that Plaintiff had assumed the risks created by the slack action or the oil or that he was contributorily negligent for his knowledgeable acceptance of these conditions.

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However, U.P.'s evidence did show that Plaintiff could have avoided the spilled oil when walking through the caboose and failed to do so. Also, he could have cleaned the oil from the soles of his boots each time he reached the cupola, but did not. Finally, Plaintiff knew that slack action #363 was going to occur as the train was traveling downhill, and knew that the U.P. safety rules cautioned employees to remain seated during periods of slack action. Nevertheless, Plaintiff chose to climb down from the cupola knowing that slack action was about to occur, knowing that this action would jostle the caboose, and knowing that he had oil on his shoes. This was evidence on the defense of contributory negligence, not assumption of the risk. Where, as here, the defense of assumption of the risk was not pled, and was not raised or argued at any time prior to or during trial, giving a cautionary instruction that assumption of the risk was not a defense to Plaintiff's claim would only serve to confuse the jury and obscure the issues. Tiller v. Atlantic Coast R.R. Co., supra: Casko v. Elgin, Joliet & Eastern Railway Co., 361 F.2d 748 (7th Cir. 1966). See Seaboldt v. Pennsylvania R.R. Co., 390 F.2d 296 (3d Cir. 1961) (The giving of such an instruction might even be reversible error). Id. at 362-63. In the present case Defendant has not alleged in its pleadings and will not argue at trial that the jury should find Plaintiff contributorily negligent because Plaintiff acceded to the request or direction of the Union Pacific to work at a dangerous job or in a dangerous place or under unsafe conditions. As such, Defendant will present no

evidence or argument at trial regarding assumption of the risk to support the addition of the fourth parenthetical paragraph to the contributory negligence instruction which appears at § 94.16 of 3 E. Devitt, C. Blackmar and M. Wolff, Federal Jury Practice and Instructions (4th Ed. 1987). Finally, Defendant will present no evidence or argument at trial to support a separate assumption of the risk instruction such as the assumption of the risk instruction located at § 155.50 of 3A K. O'Malley, J. Grening and W. Lee, Federal Jury Practice and Instructions (5th Ed. 2001). 14

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Defendant has submitted the contributory negligence jury instruction located at 3 K. O'Malley, J. Grenig and W. Lee, Federal Jury Practice and Instructions, §120.71 (5th Ed. 2001) which states as follows: In addition to denying that any negligence of defendant proximately caused any injury or damage to plaintiff, defendant alleges, as a further defense, that some contributory negligence on the part of plaintiff was a proximate cause of any injuries and consequent damages plaintiff may have sustained. Contributory negligence is fault on the part of a person injured, which cooperates in some degree with the negligence of another, and so helps to bring about the injury. By the defense of contributory negligence, defendant in effect, alleges that, even though plaintiff may have been guilty of some negligent act or omission which was one of the proximate causes, plaintiff, by plaintiff's own failure to use ordinary care under the circumstances for plaintiff's own safety, at the time and place in question, also contributed one of the proximate causes of any injuries and damages plaintiff may have suffered. The burden is on defendant to establish by a preponderance of the evidence that plaintiff was also at fault, and that such fault contributed one of the proximate causes of any injuries and consequent damages plaintiff may have sustained.

XII.

CAUSATION AS IT RELATES TO NEGLIGENCE UNDER FELA The Plaintiff must prove all of the elements of a common law negligence action

including duty, breach of duty, causation in both fact and law and damages. In FELA cases the United States Supreme Court has mandated a relaxation, but not elimination, of the causation element. Under the FELA the Railroad's negligence need not be "the sole, efficient, producing cause of injury" to establish causation, but rather, causation is established if "with reason, the conclusion can be drawn that the negligence of the employer played any part at all in producing the injury...." Rogers v. Missouri Pac. R.

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Co., 532 U.S. 500 (1957); Ambold v. Seaboard Air Line R.R. Co., 345 F.2d 30 (4th Cir. 1965); Dessi v. Penn, R. Co., 251 F.2d 1149 (3rd Cir. 1958).

XIII.

CAUSATION AS IT RELATES TO PLAINTIFF'S CONTRIBUTORY NEGLIGENCE Under the FELA a Railroad's negligence may be considered a cause of an

employee's injury if it played any part in causing the accident. The same rule applies with respect to Plaintiff's contributory negligence. Plaintiff is guilty of contributory

negligence if his conduct played any part in producing the injury. Page v. St. Louis Southwestern Ry., 349 F. 2d 820 (5th Cir. 1965); Caplinger v. Northern Pac. Terminal, 418 P.2d 34 (Or. 1966).

XIV.

THE JURY INSTRUCTION ON CAUSATION SHOULD APPLY EQUALLY TO BOTH UNION PACIFIC'S NEGLIGENCE AND PLAINTIFF'S CONTRIBUTORY NEGLIGENCE Union Pacific will submit a jury instruction which is a modified version of the

instruction which appears at 3A K. O'Malley, J. Grenig and W. Lee, Federal Jury Practice and Instructions, § 155.40 (5th Ed. 2001). This modification makes clear to the jury that it should apply the same standard of causation to both Union Pacific's negligence and Plaintiff's contributory negligence. In Ganotis v. The New York Central RR. Co., 342 F.2d 767, 768-69 (1965), the court found that the FELA did not intend to make a distinction between causation when considered in connection with the railroad's negligence and causation when considered in connection with the employee's contributory negligence. See also, Page v. St. Louis Southwestern Ry. Co., 349 F.2d 16

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820, 822-24 (5th Cir. 1965). As such, the jury instruction on causation should clearly direct the jury to apply the same standard of causation to Defendant's negligence and Plaintiff's contributory negligence.

XV.

APPORTIONMENT FOR PRE-EXISTING CONDITIONS At the time of the February 28, 2003 incident, Plaintiff had pre-existing

degenerative changes in his back and neck. Defendant has tendered a jury instruction, a carrying instruction and a special verdict form covering the issue of aggravation of pre-existing condition and apportionment of damages to the pre-existing condition. Defendant provides the attached copy of the Tenth Circuit's decision in Sauer v. Burlington Northern Railroad Company, 106 F.3d 1490 (10th Cir. 1997) and a copy of the jury instruction and special verdict form that was used by the trial court in the Sauer case and approved by the Tenth Circuit in support of Defendant's argument that the Court should give the jury Defendant's tendered instruction on aggravation of preexisting condition, and the carrying instruction and verdict form covering the issue of aggravation of pre-existing condition and apportionment of damages to that pre-existing condition. Defendant anticipates that Plaintiff may argue that the jury should not be given an instruction on aggravation of pre-existing condition and that the carrying instruction and verdict form should not include the issue of aggravation of pre-existing condition based on the U.S. Supreme Court's decision in Norfolk & Western Ry. Co. v. Ayers, 123 S.Ct. 1210 (2003). However, the issue before the Ayers Court was the apportionment

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of a third-party's concurrent negligence rather than a plaintiff-employee's pre-existing condition. In Myers v. Union Railroad, 865 A.2d 857 (Pa. Super. 2004), the Superior Court of Pennsylvania found that the trial court had committed reversible error when it refused, pursuant to its interpretation of Ayers, to give the railroad's requested jury instruction on aggravation of pre-existing condition. In the Meyer case, Union Railroad's expert medical witnesses testified that Mr. Meyer's accident aggravated pre-existing degenerative disc disease in his back. Therefore, Union Railroad argued that it was entitled to a jury instruction on aggravation of a pre-existing condition. Union Railroad argued that under the FELA, a railroad employer is only required to pay for damages caused by its negligence. Specifically, Union Railroad maintained that the FELA allows damages to be apportioned in instances where the employee's injury was an aggravation of a pre-existing condition. Based on the holding in Ayers, the trial court refused to give Union Railroad's proposed jury instruction on aggravation of a preexisting condition. On appeal Union Railroad argued that the court's charge did not properly instruct the jury on this issue and that the error was fundamentally unfair and prejudicial to the railroad's defense. On appeal, the Superior Court of Pennsylvania overturned the decision of the trial court, stating as follows: "[In Ayers] Justice Ruth Bader Ginsberg concluded that FELA does not sanction apportionment of damages between a railroad employer and a concurrently liable third party." Id. at 865. (Emphasis added). The Superior Court specifically noted that Justice Ginsberg's opinion "did not address whether a plaintiff's

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pre-existing condition was apportionable under FELA..."

Id. at 865.

(Emphasis

added). The Superior Court of Pennsylvania refused to extend the holding in Ayers to support the trial court's refusal to instruct the jury on aggravation of pre-existing condition. As such, any reliance on Ayers by Plaintiff to support his argument that Defendant is not entitled to a jury instruction on aggravation of pre-existing condition is misplaced. In Rust v. Burlington Northern and Santa Fe Railway Co., 308 F.Supp.2d 1230 (D.Colo. 2003), the defendant argued that plaintiff's injuries were caused in part by a "pre-existing degenerative medical condition." 308 F.Supp.2d at 1230. Plaintiff filed a motion in limine to exclude evidence of this condition, arguing that it was inadmissible under Ayers. The district court rejected this argument, finding that "Ayers is by no means dispositive." 308 F.Supp.2d at 1231. Turning to the more relevant authority of Sauer v. Burlington Northern Railroad Co., 106 F.3d 1490 (10th Cir. 1996), and Stevens v. Bangor and Aroostook Railroad Co., 97 F.3d 594 (1st Cir. 1996), the Court found that evidence of the plaintiff's pre-existing medical condition is relevant to the issues of both liability and damages. Id. Thus, contrary to Plaintiff's arguments, Sauer, and not Ayers, controls the issue of the Defendant's right to a jury instruction on aggravation of a preexisting condition.

XVI.

MITIGATION OF DAMAGES A party is entitled to an instruction on its theory of the case whenever it produces

evidence to support it. Wilson v. Union Pac. R.R. Co., 56 F.3d 1226 (10th Cir. 1995). A

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railroad employee has a duty to mitigate damages by returning to gainful employment as soon as reasonably possible. Taylor v. Denver & Rio Grande W.R.R. Co., 438 F.2d 351 (10th Cir. 1971). A railroad employee who is able to look for work does not satisfy his duty to mitigate by waiting passively for employment to be offered. The opportunity to mitigate is not merely the opportunity to accept a job, but the opportunity to seek appropriate work when one is able to do so. If that opportunity is shown to exist, the issue of mitigation should be submitted to the jury. Wilson v. Union Pac. R.R. Co., 56 F.3d 1226 (10th Cir. 1995). Plaintiff has admitted that he has not made any effort to locate employment inside or outside the railroad. In addition, Dr. Beer recommended that Mr. Bull attend a functional restoration program. Mr. Bull refused the Union

Pacific's offer to pay for Mr. Bull to attend a functional restoration program. Dr. Kleiner determined that Mr. Bull's back pain was coming from nerves at his facet joint. Dr. Kleiner recommended a rhysotomy to deaden these nerves. Mr. Bull did not go forward with this surgery. Based on the foregoing there is sufficient evidence for the jury to conclude that Plaintiff was able to work and had an opportunity to seek appropriate work. A

determination of whether Plaintiff's conduct constitutes a reasonable effort to mitigate his damages under the circumstances is a question of fact for the jury. As such,

Defendant requests that the trial court instruct the jury on mitigation of damages. See Trejo v. Denver & Rio Grande W. R.R. Co., 568 F.2d 181 (10th Cir. 1977).

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DATED this 30th day of September, 2005. Respectfully submitted,

_s/Mark C. Hansen_______ MARK C. HANSEN Union Pacific Railroad Company 1331 17TH Street, Suite 406 Denver, CO 80202 (303) 964-4583 FAX: (303) 964-4585

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CERTIFICATE OF SERVICE I hereby certify that on this 30th day of September, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Sabina Y. Chung, Esq. Jack D. Robinson, Esq. SPIES, POWERS & ROBINSON, P.C. 1660 Lincoln Street, Suite 2220 Denver, CO 80264 Fredric A. Bremseth, Esq. Thomas W. Geng, Esq. BREMSETH LAW FIRM 810 East Lake Street Wayzata, MN 55391

[email protected]

I certify that there are no non CM/ECF participants in this case.

_s/Mark C. Hansen_______ MARK C. HANSEN Union Pacific Railroad Company 1331 17TH Street, Suite 406 Denver, CO 80202 [email protected]

G:\DENLAW\MARK HANSEN\OPEN\Bull\TRIAL PREP\TRIAL BRIEFS\Trial Brief - 9-29-05.doc

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