By Lee Dryden
BridgeTower Media Newswires
DETROIT—A train conductor who sued his employer after suffering frostbite during the January 2014 “polar vortex” fell short in his appeal to a Michigan Court of Appeals panel.
In Hawkins v. Norfolk Southern Railway Company, the panel affirmed a Wayne County Circuit Court jury’s verdict in favor of the defendant. Plaintiff Zachary Hawkins argues that the trial court improperly instructed the jury on the applicable law and that the improper instructions warrant a new trial.
“Although the trial court’s instructions might have been imperfect, we conclude that the instructions adequately stated the law,” the panel stated.
The unpublished opinion was issued by Judges Amy Ronayne Krause, Patrick M. Meter, and Cynthia Diane Stephens.
The case
On Jan. 6, 2014, Hawkins reported to a Norfolk Southern railyard to prepare for a train’s departure. There was no trainmaster present, which Hawkins believed was unusual as the temperature was 14 degrees below zero, according to the COA opinion.
The railroad company typically provided hand warmers on cold nights, but Hawkins reported that he could not find any and a request to dispatch went unanswered. The defendant argued that ample supplies of hand warmers were available.
There was no dispute that the main heater in the locomotive to which Hawkins was assigned was not operational, and the defendant admitted that it violated a standard of keeping a temperature of at least 60 degrees, the COA opinion stated.
The plaintiff stated that the weather impeded his ability to clear and align track switches, and that he could not operate some of the switches without removing his gloves. He testified that he requested and received assistance with two of the switches, but he was simply “told that maintenance is currently busy and to do the best that I can” in response to a further request for help.
A Norfolk Southern representative testified that conductors are expected to be able to work independently and solve problems, and are “absolutely not” expected to use their hands to clear switches.
A mechanical supervisor verified that the main heater of the locomotive was not working, but he could not fix it onsite.
“However, there was some evidence that Hawkins and the engineer had cracked open the locomotive cab’s window while they smoked cigarettes throughout the night,” the opinion stated, adding that Hawkins estimated he had been outside for over five hours.
“Hawkins alleged that Norfolk Southern’s negligence caused him to suffer frostbite that resulted in nerve damage,” the opinion stated. “Hawkins testified that he experienced shooting pain in his fingers and toes and poor grip strength. Norfolk Southern disputed whether Hawkins suffered any injury and contended that any injury Hawkins suffered was not caused by Norfolk Southern’s negligence.”
COA analysis
Hawkins first argued that the trial court erred by refusing his request to instruct the jury regarding the inapplicability of “assumption of risk” in this matter.
“In particular, Hawkins contends that Norfolk Southern’s theory of the case was, in relevant part, that Hawkins’s injuries were his own fault for choosing to work that day,” the opinion stated. “Such an argument would be grossly improper, especially considering the evidence Norfolk Southern introduced to the effect that Hawkins had developed some work-attendance problems.
“Although Norfolk Southern did not articulate its arguments as clearly as might be desired, we are unable to conclude that it actually advanced such an impermissible theory to the jury.”
Considering the evidence and arguments, there was no need to instruct the jury that Hawkins did not assume the risk of working in cold temperatures, the opinion stated, as the instructions on contributory and comparative negligence sufficed to allow the jury to consider the issues.
Hawkins argued that Norfolk Southern breached its duty to provide reasonable and safe working equipment and conditions in light of the weather on that night. The defense suggested that Hawkins’s decision to work that night was negligent stating, “So if Mr. Hawkins thought it wasn’t safe to work on January 6-7, 2014, he should’ve said I’m not going to work, this is not safe. He had that right, he had that duty.”
The plaintiff immediately objected, asserting that Norfolk Southern was improperly injecting assumption of the risk. The trial court did not rule on the objection immediately.
“An instruction on assumption of risk does not address the duty owed by the employer; rather, it implicates the employee’s responsibilities and creates a potential that the jury might reduce the plaintiff’s award on the ground that the plaintiff voluntarily assumed the risk of harm associated with the work conditions,” the opinion stated. “In this case, the jury never reached whether Hawkins was negligent because it found that Norfolk Southern was not negligent. When a jury finds that the railroad was not at all negligent, a trial court’s failure to give an instruction on assumption of risk is harmless.”
Hawkins also argued that the trial court erred when it instructed the jury on his claim of negligence per se for the violation of a safety regulation. He took issue with the jury instruction stating, “If the injury resulted from some other cause or as a result solely of Plaintiff’s own conduct you must find for the Defendant.”
The plaintiff argued that the instruction was “vague and improperly invited the jury to consider Hawkins’s contributory negligence, which might be viewed as some ‘other cause.’”
“The instruction as a whole could potentially have been better phrased,” the panel stated. “Additionally, the fourth paragraph was likely unnecessary to a proper understanding of the claim involving negligence per se. However, when read in context, we disagree with Hawkins that the jury was likely to be misled or confused. When the instructions are read as a whole and together with the verdict form, they adequately and fairly presented the applicable theories and law.”
The plaintiff also argued that it is “improper to instruct the jury on sole cause of the injury when there is no evidence that the employee might have negligently caused his or her own injury or where it was undisputed that the railroad’s violation caused in part the employee’s injury.”
But the panel stated there was “there was ample evidence that Hawkins engaged in acts or omissions that might have been the sole cause of any injuries that he might have suffered.”
The panel cited the availability of hard warmers and evidence that Hawkins did not fully avail himself of the services of maintenance workers in clearing switches.
“Additionally, there was evidence that Hawkins chose not to take appropriate breaks, did not utilize his opportunities to take breaks from the weather in the locomotive or other transportation, and might have unnecessarily exposed himself to the elements in order to smoke or allow his coworker to smoke,” the opinion stated. “Taken together, a reasonable jury could have found that Hawkins’s negligent acts or omissions were the sole cause of his injuries. Given the evidentiary dispute, the instruction was not improper.”
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