Curl v. BNSF Railway Co.
526 S.W.3d 215
Mo. Ct. App.2017Background
- On July 12, 2012, Jered Curl was injured in a rear-end collision while operating a Rail Heater for BNSF and sued under the Federal Employers’ Liability Act (FELA) for damages including lost earning capacity.
- BNSF’s original answer asserted multiple affirmative defenses including two general failure-to-mitigate/failure-to-take-reasonable-steps defenses; plaintiff moved for a more definite statement under Mo. R. Civ. P. 55.08.
- The court ordered BNSF to amend; its first amended answer narrowed mitigation-related assertions to a contributory-negligence theory that Curl mishandled his onboard radio. That pleading governed discovery and trial preparation.
- Months later BNSF admitted negligence but sought to reassert a general failure-to-mitigate (economic) defense and, three weeks before trial, moved to add a detailed mitigation-by-job-placement defense; the trial court denied leave to amend and excluded the mitigation instruction/evidence.
- At trial, Curl presented medical and economic experts establishing substantial lost earning capacity; the jury awarded $4.3 million. BNSF appealed, arguing the court improperly barred its mitigation defense and related evidence.
Issues
| Issue | Curl's Argument | BNSF's Argument | Held |
|---|---|---|---|
| 1. Whether state pleading rule (Mo. R. Civ. P. 55.08) could bar BNSF’s FELA mitigation defense | BNSF waived mitigation by failing to plead it sufficiently under Rule 55.08; Curl argued proper application of the rule meant waiver | BNSF argued federal law governs FELA substantive defenses and permits general pleading of mitigation, so state rule cannot defeat the defense | Court: Federal substantive law governs FELA but state pleading rules apply; BNSF waived mitigation by failing to plead it after being ordered to amend, so exclusion was proper |
| 2. Whether trial court abused discretion by denying leave to file a third amended answer shortly before trial | Curl: Denial proper because BNSF had opportunity earlier and the late amendment would prejudice Curl | BNSF: Amendment merely added specificity; discovery had covered the topic and Curl would not be prejudiced | Court: No abuse of discretion; BNSF had prior opportunity and late change would unfairly prejudice Curl |
| 3. Whether Curl “opened the door” to mitigation evidence via his experts | Curl: Expert testimony was limited to ability to continue in his maintenance-of-way job; did not open topic of other BNSF positions | BNSF: Expert’s testimony that Curl could have worked for BNSF indefinitely opened door to evidence of available alternate positions | Court: No opened-door; cross-examiner misstated the scope and the trial court properly sustained Curl’s objection |
| 4. Whether BNSF could introduce mitigation-related evidence as impeachment/contradiction despite pleading deficiency | Curl: Exclusion appropriate; BNSF didn’t preserve an argument that evidence was for impeachment rather than mitigation | BNSF: Evidence of job offers and contact letters impeached Curl’s damage claims regardless of affirmative-defense label | Court: Point not preserved — BNSF never offered that evidence at trial for impeachment (only as mitigation); exclusion review denied |
Key Cases Cited
- St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409 (federal substantive law governs FELA claims tried in state court)
- Norfolk & Western Ry. Co. v. Liepelt, 444 U.S. 490 (issues of measure and mitigation of damages in FELA are federal substantive law)
- Brown v. Western Railway of Alabama, 338 U.S. 294 (state procedural rules cannot defeat federal rights via over-exacting local pleading requirements)
- Felder v. Casey, 487 U.S. 131 (state court procedural rules ordinarily apply, but may not impair federal substantive rights)
- Bissett v. Burlington N. R.R. Co., 969 F.2d 727 (failure to mitigate is an affirmative defense in FELA; pleading omission waives defense)
- Kauzlarich v. Atchison, Topeka & Santa Fe Ry. Co., 910 S.W.2d 254 (Mo. banc) (FELA mitigation instruction governed by federal law; state procedure still applies)