(The following story by Linda Coady, Esq., appeared at FindLaw.com on December 8, 2009.)
A conductor for Union Pacific Railroad can sue her employer for failing to protect her from the West Nile Virus she contracted while working in Wyoming in August 2003, a divided Nebraska appeals Court has ruled.
In a 2-1 vote the Court of Appeals reversed summary judgment granted to Union Pacific, finding evidence that the railroad may have breached its duty to provide a reasonably safe workplace. The panel said a jury must decide whether the injury was foreseeable given conditions at the rail yard where plaintiff Vivika Deviney worked.
The appeals court also said a claim brought under the Federal Employers’ Liability Act could be adjudicated in Nebraska state court as well as in federal court.
Deviney worked a late shift in August 2003 during which she was required to perform a roll-by inspection of a train as part of her job as a conductor. After she got off the train for the roll-by, she encountered swarms of mosquitoes that bit her nearly 25 times, according to the opinion. She said she was wearing long pants, a sweater and insect repellent.
Near the junction where the inspection took place was a pond that “always had water in it,” Deviney said. Her last day of work was Aug. 4, 2003, as she had developed headaches, diarrhea, vomiting and nausea as a result of the mosquito bites.
She was diagnosed with West Nile Virus and admitted to a hospital, and then rehabilitation facility for four days.
The effects of the West Nile Virus include partial hearing loss, fatigue, vertigo, reduced vision and left-side weakness, Deviney said.
She sued Union Pacific under FELA in the Douglas County District Court, alleging her permanent injuries and disability were caused by the railroad’s negligence.
The railroad moved for summary judgment, contending there is no fact issue to be resolved.
The trial court granted the motion, finding no specific information indicated the railroad knew about or should have known about the large concentration of mosquitoes where Deviney was working and said she was bitten.
Deviney appealed, and the majority reversed and remanded.
The panel first established that a railroad has a non-delegable duty to provide employees with a reasonably safe workplace, a duty that extends even to property controlled by third parties. In this case, Deviney met her burden of showing that Union Pacific may have breached that duty.
In 2002 the company published a prevention bulletin concerning the source and danger of West Nile and begun using larvicide for mosquito control in the 1990s, the panel noted.
Given the testimony about the standing water in several places where Deviney was required to get off of the train, a reasonable jury could infer that Union Pacific breached its duty to provide her with a reasonably safe workplace, the appeals court said.
Because the railroad knew about West Nile Virus, that standing, stagnant water is a breeding place for mosquitoes, and that the train yard where Deviney was required to get off the train contained an evaporation pond and nearby creek, the panel found a fact issue as to whether Deviney’s injuries were foreseeable.
Finally, the court found a fact question of regarding causation. The close temporal relationship between Deviney’s being bitten and the onset of her symptoms suggests an inference of a causal relationship between the bites and her West Nile Virus.
The dissenting judge took issue with the majority’s conclusion that Union Pacific had a duty under FELA to prevent Deviney from being bitten by a West Nile mosquito “in the mosquito’s natural habitat.”
“Indeed, the very randomness of the risk involved would effectively impose strict liability upon FELA employers for a mosquito bite resulting in WNV,” the judge said.
“The majority’s decision effectively makes the employer an insurer for a random risk beyond human control,” the judge emphasized.
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Deviney v. Union Pacific Railroad Co., No. A-08-1259, 2009 WL 3818217 (Neb. Ct. App. Nov. 17, 2009).