McCarthy v. Union Pacific R.R. Co.
209 N.E.3d 984
Ill. App. Ct.2022Background
- John McCarthy (plaintiff), a Union Pacific foreman, had preexisting neck/back injuries from a June 2015 auto accident and treated with specialists prior to 2016.
- Between Feb–May 2016 plaintiff alleges supervisor Glen Elliot repeatedly grabbed/rubbed his head/neck and on May 24, 2016 Elliot threw a small box at him; plaintiff reported the incidents to a supervisor (Christianson) after the box incident.
- Plaintiff sued Union Pacific under FELA (asserting both vicarious and direct negligence theories) and sued Elliot for common-law negligence; plaintiff sought compensatory (not punitive) damages at trial.
- A jury awarded $3.14 million against Union Pacific and $10,000 against Elliot. Defendants moved for JNOV or a new trial; trial court denied relief.
- On appeal the majority reversed and remanded for a new trial, holding plaintiff’s counsel repeatedly violated an in limine order during closing (urging jurors to be “safety advocates”/"send a message") and that those statements prejudiced the defendants; the court also found direct-liability theories lacked notice/foreseeability support on this record. Justice Welch dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for FELA liability | McCarthy argued FELA liability established via Elliot’s acts (vicarious) and Union Pacific’s failures (direct). | Union Pacific argued plaintiff failed to prove foreseeability/notice for direct liability and thus FELA recovery should fail. | JNOV denied as to FELA generally because plaintiff presented sufficient evidence to support vicarious-liability theory; Union Pacific forfeited a full JNOV attack by not addressing vicarious theory on appeal. |
| Prejudicial closing argument / violation of motion in limine | Plaintiff urged jury to enforce safety rules, make community safer, and "send a message"; counsel argued deterrence. | Union Pacific argued counsel appealed to juror passion, violated the in limine order (no "safety advocate"/"send a message" themes), prejudiced the jury, and warranted a new trial. | Majority: new trial warranted — counsel repeatedly violated the in limine order and sustained objections; cumulative effect prejudiced defendants. Dissent: trial court’s admonitions cured any prejudice and reversal not required. |
| Inconsistent verdicts (large award against Union Pacific; small award against Elliot) | McCarthy relied on the evidence of injury and both defendants’ liability. | Union Pacific argued the disparity suggests the jury was improperly swayed by the improper closing and produced irreconcilable/compromised verdicts. | Majority found the inconsistency supported that improper argument likely influenced the verdict and weighed in favor of granting a new trial. Dissent viewed verdicts as legally consistent and supported by evidence. |
| Notice/foreseeability for direct FELA claims (negligent training/retention) | McCarthy argued Union Pacific failed to maintain an effective system and negligently retained Elliot, creating risk of harm. | Union Pacific argued no actual or constructive notice before the fourth incident; plaintiff delayed reporting and company took action once told. | Majority: on this record direct-liability theories lacked evidence of notice/foreseeability prior to the last incident; such theories may be precluded on retrial absent new evidence. |
Key Cases Cited
- McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102 (1999) (standard for reviewing motions for judgment n.o.v.)
- Holton v. Memorial Hospital, 176 Ill. 2d 95 (1997) (JNOV entry requires evidence so overwhelmingly favors movant that no contrary verdict could stand)
- Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494 (1967) (foundational standard for directed verdict/JNOV review)
- York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147 (2006) (distinguishing JNOV from new trial and standards for each)
- Lancaster v. Norfolk & Western Ry. Co., 773 F.2d 807 (7th Cir. 1985) (FELA liability includes employer negligence and vicarious liability for employees)
- Jamison v. Encarnacion, 281 U.S. 635 (1930) (intentional acts may be treated as negligence under FELA)
- LeDure v. Union Pacific R.R. Co., 962 F.3d 907 (7th Cir. 2020) (foreseeability/notice requirement for direct FELA claims)
- Holbrook v. Norfolk Southern Ry. Co., 414 F.3d 739 (7th Cir. 2005) (discussing foreseeability and notice in FELA context)
- McGinn v. Burlington Northern R.R. Co., 102 F.3d 295 (7th Cir. 1996) (foreseeability as element of direct FELA claims)
- Harrison v. Missouri Pacific R.R. Co., 372 U.S. 248 (1963) (railroad negligent retention/need to show notice of assailant’s propensities)
- Redmond v. Socha, 216 Ill. 2d 622 (2005) (legal standard for assessing whether multiple verdicts are irreconcilably inconsistent)