Parsons v. Norfolk Southern Railway Co.
2017 IL App (1st) 161384
| Ill. App. Ct. | 2018Background
- Michael Parsons, a Norfolk Southern conductor, was injured on Sept. 2, 2011 when his left foot was crushed between a car he rode on Track 24 and a car left on adjacent Track 25 after yard track work narrowed the spacing to as little as 10'6".
- Norfolk Southern had issued employee bulletins after 2010 switch/turnout work noting changed clearances; Parsons read the bulletin but claimed he lacked notice tracks were narrowed.
- Parsons left eight cars "in the lead" (between switch and clearance point) on Track 25 during a switching shove; he rode the side of the lead car on Track 24 as the shove approached the foul of Track 25.
- Jury heard conflicting testimony about (1) whether it was customary/allowed to leave cars or ride between switch and clearance points, (2) whether the 2010 work constituted "reconstruction" such that Illinois Commerce Commission track-center regulations applied, and (3) whether the engineer violated the federal "radio rule."
- Jury found Norfolk Southern negligent, answered that ICC track-center regs applied and had been violated, found Parsons 0% negligent, and awarded $22,474,102 (reduced by $1M remittitur to $21,474,102).
- Norfolk Southern appealed, arguing (inter alia) manifest-weight error on contributory negligence, improper assumption-of-risk instruction, improper instruction and interrogatory on ICC regulation, prosecutor argument misconduct, improper damages instruction (disability separate from pain and suffering), and excessive verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether jury verdict finding Parsons not contributorily negligent was against manifest weight | Parsons: conduct was customary and reasonable; company rules were vague/not uniformly enforced | Norfolk Southern: Parsons violated safety rules by leaving cars in foul and riding in body of yard, so contributory negligence should reduce/defeat recovery | Affirmed: conflicting evidence made contributory negligence a jury question; verdict not against manifest weight |
| 2. Whether instruction stating assumption of risk is not a defense was reversible error | Parsons: instruction appropriate in FELA context and did not prejudice Norfolk Southern | Norfolk Southern: instruction confused jury and prevented consideration of contributory negligence | Affirmed: even if erroneous, no prejudice shown; jury was instructed and argued on comparative negligence |
| 3. Whether jury should have been instructed on ICC track-center regulation (92 Ill. Adm. Code 1500.140) and answered interrogatory on applicability | Parsons: evidence supported that tracks at injury site were parallel and that 2010 work was reconstruction; instruction proper | Norfolk Southern: regs apply only to tangent/parallel open track, not between switch and clearance points; tracks there were not parallel; specific language identifying tracks forfeited | Affirmed: applicability was a factual dispute for jury; instruction not erroneous on that ground (specific complaint forfeited) |
| 4. Whether plaintiff counsel’s remarks ("send a message," "railroaded," public-safety references, references to other injuries/greed) deprived Norfolk Southern of fair trial | Parsons: remarks were reasonable inferences from evidence and not prejudicial | Norfolk Southern: comments inflamed jury and introduced improper themes | Affirmed: remarks did not produce substantial prejudice when trial viewed as whole; many objections waived or comments were vague |
| 5. Whether allowing separate "disability" damages (in addition to pain and suffering) was improper | Parsons: disability is a distinct recoverable FELA element; trial court and prior state appellate decisions permit separate disability awards | Norfolk Southern: disability duplicates pain and suffering and should not be separate | Affirmed: Illinois appellate precedent treats disability separate from pain and suffering in FELA cases; no error |
| 6. Whether $19M award for non-economic damages was excessive | Parsons: severe, permanent injuries, recurrent infections, ongoing pain, risk of amputation, unrebutted medical testimony support award | Norfolk Southern: plaintiff functioning relatively well; comparable cases show much lower awards; request remittitur | Affirmed: award within reasonable range given severity and permanency; not the product of passion or prejudice |
Key Cases Cited
- Finley v. New York Cent. R.R. Co., 19 Ill.2d 428 (Illinois Supreme Court) (standard that verdict for plaintiff will be upheld if any evidence, viewed in plaintiff's favor, supports negligence contributing in whole or in part)
- J.L. Simmons Co. v. Firestone Tire & Rubber Co., 108 Ill.2d 106 (Illinois Supreme Court) (no reversal when error did not affect outcome)
- Schultz v. Northeast Ill. Reg. Commuter R.R. Corp., 201 Ill.2d 260 (Illinois Supreme Court) (discussion of assumption-of-risk instruction in FELA cases)
- Hamrock v. Consolidated R. Corp., 151 Ill. App.3d 55 (Ill. App. Ct.) (evidence of custom can negate negligence as matter of law despite rule violations)
- Dixon v. Union Pac. R.R. Co., 383 Ill. App.3d 453 (Ill. App. Ct.) (treating disability damages as separate from pain and suffering in FELA case)
- Donnellan v. First Student, Inc., 383 Ill. App.3d 1040 (Ill. App. Ct.) (standard for reversing/modifying award as excessive)