Summary 2011 WY 126

Summary of Decision September 9, 2011

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Case Name: Glenn v. Union Pacific Railroad Co.

Citation: 2011 WY 126

Docket Number: S-10-0197

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464331

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge

Representing Appellant (Plaintiff): Frederick J. Harrison, Frederick J. Harrison, Rawlins, Wyoming; Robert T. Moxley, Cheyenne, Wyoming.

Representing Appellee (Defendant): Mark C. Hansen, Union Pacific Railroad Company; George E. Lemich, Lemich Law Center.

Date of Decision: September 9, 2011

Facts: Previously, a grant of summary judgment in favor of Appellee was reversed after finding that the railroad had a duty to exercise ordinary and reasonable care in the operation of its railway. After remand, the jury determined that both parties, as well as two non-party actors, were negligent and awarded damages to Appellant. Appellant appeals, contending that the district court erred in refusing to admit evidence of a prior incident involving Appellee that was the catalyst for a change in his employer’s safety procedures.

Issues: Whether the trial court erred in excluding evidence of a similar “near-miss” that occurred two weeks before Appellant’s accident, even after the Appellee “opened the door.” Whether the trial court erred in refusing Appellant’s proposed instruction about intervening and supervening cause and permitting the jury to consider the fault of two nonparty actors. Whether the doctrine of cumulative error should be applied.

Holdings: In addressing Appellant’s first claim of error, the issues that must be resolved are (1) whether the reason for the change in safety procedures is relevant, and (2) whether the district court abused its discretion in rejecting that evidence.

Appellant contends the evidence of a prior “near miss” incident was relevant because it tended to show why the car-checking procedure was changed. Circumstantial evidence that provides background may be relevant if it throws other evidence into sharper relief, helps clarify or explain it, or makes it more vivid or real. In the present action, at the very least, the prior incident helps explain the decision to change the car-checking procedure. More fundamentally, however, the prior incident was relevant to the question of whether the new procedure was more or less safe than its former procedure, or the procedure suggested by Appellee at trial. The degree of safety of the new procedure had direct implications for the jury’s determination as to degree of fault, one of the ultimate issues in this case. The evidence was relevant.

The district court appears to have determined that, by stipulating to the fact that the balloon track was an unsafe place for Appellant to check the train cars, Appellant purged the prior incident of its potential relevance. The evidence of the prior incident, however, did not become irrelevant merely because Appellant admitted that the balloon track was not a safe place to check the train cars. First, an evidentiary admission is not conclusive but is subject to contradiction or explanation. Second, even if the stipulation had removed from consideration the issue of whether the balloon track was “safe,” Appellant’s admission does not answer the question of whether the new car-checking procedure was more or less safe than other possible car-checking procedures. The prior incident was relevant to a determination as to the degree to which the procedure was safe or unsafe, and it was ultimately the jury’s responsibility to factor that determination into its apportionment of fault. The stipulation that the balloon track was not a safe place to check the train cars did not render the prior incident irrelevant.

Unfairly prejudicial evidence is evidence which will likely stimulate an excessive emotion or awaken a fixed prejudice and thus dominate the mind of the jury and prevent a rational determination of the truth. WRE 403 does not allow the exclusion of evidence simply because it is prejudicial. All of the evidence against an appellant is ‘prejudicial.’ The evidence must be unfairly prejudicial before its prejudicial effect is weighed against its probative value. At the hearing on Appellee’s motion in limine, the district court determined that evidence of the prior incident should be excluded, but stated that its admissibility at trial would depend on whether Appellee “opened the door” to the evidence. Despite the fact that Appellee argued that Black Butte Coal Company was negligent in making Appellant go out there and having that policy of walking the loop and checking these cars,” the court determined that Appellee had not “opened the door” to that evidence. The district court’s refusal to admit evidence of the prior incident allowed Appellee to shift blame to Black Butte by producing testimony that its safety procedures were inadequate, but prevented Appellant from defending against those allegations by presenting the prior incident as the catalyst and justification for its change in procedure. The district court’s evidentiary rulings in this case prevented Appellant from presenting a vital part of his theory of the case, which was that the car-checking procedure in effect at the time of Appellant’s accident arose as a direct result of the prior incident, and that the subsequent procedure was more safe than the former procedure in light of that incident. Further, the district court’s rulings had the unfortunate effect of allowing Appellee to argue repeatedly that Black Butte was negligent in allowing its employees to inspect train cars on the balloon track, while restraining Appellant from responding to those arguments with any concrete justification for Black Butte’s judgment that the new procedure was safer than its former procedure. Although the district court was legitimately concerned with the danger of unfair prejudice, the court’s rulings unduly restricted Appellant from presenting his theory of the case. Because the excluded evidence was essential to Appellant’s defense against the allegations that Black Butte was negligent, and because it was the jury’s prerogative to determine the degree of safety of Black Butte’s car-checking procedure, the district court abused its discretion in applying W.R.E. 403.

The court is not required to allow any and all evidence the parties offer on the subject of mismanagement, but it must allow sufficient, admissible evidence to permit them to argue to the jury whether there was or was not a good faith basis to criticize management. Ultimately, the judge has discretion to control the amount of evidence and the resulting length of the trial. Likewise, the district court has discretion to tailor presentation of the evidence to prevent the jury from hearing unnecessary or inflammatory details of the prior incident. Additionally, the dangers of “unfair prejudice” can be addressed through an appropriate limiting instruction. Managing evidence through proper jury instructions accommodates the receipt by the trier of fact of all relevant evidence and, at the same time, permits the parties to fully litigate their case theories.

Appellant was effectively prevented from defending against argument and inference that Black Butte was at fault for his injury. As Appellant’s employer, Black Butte was immune from suit under Wyoming’s Worker’s Compensation Act. Wyo. Stat. Ann. § 27-14-104. However, under Wyoming’s comparative fault statute, the jury was permitted to allocate fault to actors, including Black Butte, who were not made parties to the action. Wyo. Stat. Ann. § 1-1-109. As a result of this statutory scheme, Appellant was placed in the position of having to defend against allegations relating to Black Butte’s negligence, for any percentage of fault allocated to Black Butte would necessarily diminish his recovery. Absent evidence of the prior incident, however, Appellant was unable to provide the jury with a clear justification for Black Butte’s decision to require its employees to walk the balloon track when checking the train cars. Given that any increase in the allocation of fault to Black Butte had a direct effect on Appellant’s recovery, there is at least a reasonable probability that the verdict would have been different if the error in excluding the evidence had not occurred. Accordingly, the error was prejudicial, and so the decision of the district court is reversed and the action is remanded for a new trial.

A duty of care may arise by contract, statute, common law, or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. In considering whether a duty exists, the following factors have been balanced to aid in that determination: (1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved. Generally a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous. In the present action, the employee of a non-party company testified at trial that it had a responsibility to clean all of the coal out of the train cars. The employee testified that “[a]ny person releasing a car [is] supposed to release it in a safe condition.” He also testified that his company had received complaints from another company “from time to time” that coking coal was left over in the train cars after leaving its plant. Given that this non-party company was aware that leftover material created problems for its shippers, and that it had requested coal from the Black Butte mine, it was reasonably foreseeable that material left in an improperly unloaded car could cause injury to a Black Butte employee. In sum, the district court did not abuse its discretion in finding that the non-party company owed a duty to Appellant and, accordingly, did not err in denying Appellant’s motion for judgment as a matter of law.

An intervening cause is one that comes into being after a negligent act has occurred, and if it is not a foreseeable event, it will insulate the original actor from liability. In the present action, the district court refused to give an intervening cause instruction. However, the instructions given adequately addressed the issues of causation and comparative fault. In the final analysis, the same facts that supported Appellant’s argument for an intervening cause instruction also allowed him to argue that the non-party company’s comparative fault was minimal in relation to the other actors in this case. In light of the rule that trial courts are afforded substantial latitude to tailor the instructions to the facts of the case, the district court did not abuse its discretion in refusing to give the intervening cause instruction.

Finally, because the action is reversed based on the district court’s exclusion of the prior incident at the Black Butte facility, Appellant’s contention that we should remand on the basis of cumulative error was not addressed.

Reversed and remanded for a new trial.



J. Burke delivered the opinion for the court.