Union Pacific Railroad Company v. William R. Nami
499 S.W.3d 452
Tex. App.2014Background
- Nami sued Union Pacific under FELA for West Nile virus encephalitis attributed to mosquitoes at a Brazoria County worksite.
- Evidence showed tamper cab was damp, replete with holes, and unrepaired; tall grass and weeds at the site were never mowed.
- Nami testified mosquitoes swarmed immediately after exiting the truck and entering the tamper cab; he wore short sleeves and did not use bug spray.
- Dr. Murray linked West Nile virus to Culex mosquitoes and described their habitat and activity; she tied the Brazoria County outbreak to 2008 surveillance data.
- Surveillance in Brazoria County showed positive West Nile virus in mid-2008; DeWitt County reportedly had no local West Nile cases in 2008.
- Jury found Union Pacific 80% responsible and Nami 20%; trial court entered judgment consistent with the verdict; Union Pacific appealed on duty and causation questions
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty owed to employee re mosquitoes under ferae naturae | Union Pacific owed a duty to warn due to created conditions | Mosquitoes are indigenous; no duty to warn under ferae naturae | Duty not precluded; evidence supported warning duty |
| Common-law duty to warn of commonly-known hazards | Mosquito-borne disease risks were not commonly known | Hazards typically obvious; mosquitoes a commonly known risk | Not barred by common-law rule; duty to warn remained |
| Causation under FELA—worksite exposure caused West Nile virus | Evidence shows likely bite at Brazoria County site during work | Bitten could have occurred elsewhere; insufficient nexus | Evidence sufficient to support probable causal link |
| Evidence sufficiency for trial verdict | Record supported jury’s findings on duty and causation | ||
| Apportionment and damages under FELA | Jury damages affirmed consistent with apportionment |
Key Cases Cited
- Nicholson v. Smith, 986 S.W.2d 54 (Tex. App.—San Antonio 1999) (landowner duty for indigenous animals; warning when bring creatures onto premises)
- Mintzer, 417 S.W.3d 691 (Tex. App.—Houston [14th Dist.] 2013) (legal principle precludes recovery when liability theory barred as law)
- Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (proof of causation required under high burden standard; standard for sufficiency)
- Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) (no duty to warn for commonly-known hazards absent unusual risk)
- Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566 (Tex. App.—Houston [1st Dist.] 2007) (no duty to warn for obvious hazards in some contexts)
- Brookshire Grocery Co. v. Goss, 262 S.W.3d 793 (Tex. 2008) (obvious hazards ordinarily do not require warnings)
- Barzingus v. Wilheim, 306 F.3d 17 (10th Cir. 2010) (arbitration/summary judgment standards cited in relation to duty)