$719,000 GROSS VERDICT - FEDERAL EMPLOYERS' LIABILITY ACT - INADEQUATE LIGHTING AT WEYERHAEUSER YARD - UNEVEN WALKING SURFACE - TRIP AND FALL OVER DEBRIS - MEDICAL MENISCUS TEAR WITH ARTHOSCOPIC SURGERY - 20% COMPARTIVE NEGLIGENCE FOUND.

U.S. District Court, Eastern District of PA.

This action was initially brought under the Federal Employers' Liability Act by the plaintiff freight conductor against his employer, Norfolk Southern Railroad. The railroad named the owner of the yard where the plaintiff fell, Weyerhaeuser Company, as a third party defendant in the case. The plaintiff subsequently amended the complaint to assert a direct claim against Weyerhaeuser. The defendant railroad settled the plaintiff’s claims for $200,000 during the trial and the case proceed to jury against Weyerhaeuser only for alleged failure to maintain its premises in a safe condition. The defendant argued that the fall was caused solely by the negligence of the plaintiff in failing to watch where he was walking.

Evidence showed that on April 22, 2003, the plaintiff was 54 years old and had been employed with the railroad for 29 years as a freight conductor . The plaintiff was working as the conductor on a two-man crew and was in the process of walking through the defendant Weyerhaeuser’s yard, which contained a single railroad track, when he tripped and fell over debris.

The plaintiff testified he could not see the debris due to the lack of light as well as the uneven walking surface. The plaintiff contended that the light fixtures in the vicinity of the yard did not contain light bulbs. Railroad supervisors testified they had complained to the defendant Weyerhaeuser about various conditions of its yard prior to the plaintiff’s fall. One of the complaints was that Weyerhaeuser employees sometimes left dunnage (material used to keep loads from shifting) on the ground in the yard, according to testimony offered. However, witnesses testified that whenever they complained about the condition, Weyerhaeuser would remove dunnage.

The plaintiff’s medical expert testified that as the result of stepping on the debris and falling to the ground, the plaintiff suffered a tear in the posterior horn of the medical meniscus. The plaintiff initially sought physical therapy and eventually underwent arthroscopic knee surgery. After completing a functional capacity evolution, the plaintiff’s treating physician determined the plaintiff was unable to return to his prior job as a railroad freight conductor.

The plaintiff’s economist estimated the plaintiff’s total wage loss to be between $719,000 to $900,000.

The defendant argued that the plaintiff was the sole cause of the accident and, alternatively, was comparatively negligent in failing to watch where he was walking. The defense maintained that the railroad’s primary complaint, prior to the date of the plaintiff’s fall, concerned material being stored too close to the track and no one complained about debris. Whenever it was notified of a problem, the defendant content ended it took action to correct the condition. The defense also disputed the plaintiff’s claim for future loss of wages, arguing that he was capable of returning to work in an alternative field.

The jury found the defendant 80% negligent and the plaintiff 20% comparatively negligent and the plaintiff 20% comparatively negligent. The plaintiff was awarded damages of $719,000 reduced to a net award of $575,200. The prior $200,000 settlement from the railroad increased the plaintiff’s total recovery to $775,200. post trial motions are expected.

REFERENCE:
Plaintiff’s orthopedic surgeon: Roy T. Lefkoe from Bala Cynwyd. Plaintiff’s economist: Andrew Verzilli from Kintnersville. Defendant’s orthopedic surgeon: Stuart Gordon from Ridley.

Dignetti vs. Norfolk Southern Corporation and Weyerhaeuser Company. Case no. 03-CV-5872; Judge n/a, 10-21-04.

Attorney for plaintiff: Michael J. Olley of Coffey Kaye Myers & Olley in Bala Cynwyd. Attorney for defendant Weyerhaeuser: Thomas P. Wagner of Rawle & Henderson in Philadelphia. Attorney for defendant Norfolk Southern Railroad: Paul F.X. Gallagher of Gallagher Rowan & Egbert in Philadelphia.

COMMENTARY:
The plaintiff was able to obtain a significant recovery totaling $775,200 for medical meniscus tear requiring arthroscopic knee surgery after he fell in the defendant’s yard. The case included a significant wage loss claim as both the plaintiff’s treating physician and the railroad agreed the plaintiff was unable to return to his former position as a freight conductor. Evidence also established that, after 29 years as a freight conductor, there were no alternative positions with the railroad which the plaintiff could perform.

The dynamics of the case were altered mid-trial when the railroad was dismissed after tendering a settlement of $200,000. Plaintiff’s counsel then focused completely on establishing the liability of the remaining defendant, Weyerhaeuser. Crucial evidence was presented by railroad supervisors who testified they had complained about conditions at the defendant’s yard including debris or dunnage left on the ground prior to the plaintiff’s fall. additionally, evidence showed that the yard was equipped with light fixtures, which simply did not contain light bulbs.

The case was tried over a period of four days before the jury awarded the plaintiff $719,000 in damages, reduced by 20% comparative negligence.

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