(The following story by Joe Ruff appeared on the Omaha World-Herald website on August 6, 2010.)
OMAHA, Neb. — The Nebraska Supreme Court ruled Friday that a Wyoming woman should have her day in court as she accuses Omaha-based Union Pacific Railroad of not doing enough to protect her against mosquito bites.
The high court said Vivika A. Deviney presented enough evidence to bring the case to a jury, and not be simply be dismissed.
Deviney says the railroad failed to adequately warn employees about the danger of West Nile virus in mosquitos and failed to treat standing water that was on or near U.P. properties in Wyoming when she contracted West Nile virus in 2003.
In November last year, a three-judge panel of the Nebraska Court of Appeals, with one judge dissenting, overturned Douglas County District Judge W. Russell Bowie III, who ruled that the lawsuit should be dismissed. Bowie said it was not realistic to expect the railroad to protect employees against mosquito bites. Union Pacific appealed to the State Supreme Court.
An attorney for Deviney said he was pleased with the high court’s unanimous decision, which sends the case back to trial.
Union Pacific spokeswoman Donna Kush said she was not prepared to immediately comment on the ruling.
Deviney’s attorney said she has not worked since contracting the virus because she continues to suffer severe hearing loss, fatigue, vertigo, reduced vision and weakness in her left side.
Deviney’s case falls under the 1908 Federal Employers’ Liability Act, or FELA, which requires workers to prove that their railroads were negligent before they can receive compensation for job-related injuries. That is separate from workers’ compensation laws, which generally ignore liability and pay injured workers for lost wages and medical expenses.