JACOB M. WILLIAMS v. BNSF RAILWAY COMPANY
NO. 32,379
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
JULY 29, 2015
Raymond Z. Ortiz, District Judge
Opinion Number: ____________
Raymond Z. Ortiz, District Judge
Caren I. Friedman
Santa Fe, NM
Heard Robins Cloud LLP
Bill Robins III
Justin R. Kaufman
Santa Fe, NM
Jones, Granger, Tramuto & Halstead
Robert M. Tramuto
Houston, TX
for Appellee
Tim L. Fields
Jeremy K. Harrison
Albuquerque, NM
BNSF Railway Company
Wayne L. Robbins, Jr.
Fort Worth, TX
for Appellant
ZAMORA, Judge.
{1} BNSF Rаilway Company (BNSF) appeals from a district court judgment in favor of Jacob Williams (Plaintiff) on Plaintiff‘s claims brought under the Federal Employers’ Liability Act (the Act),
BACKGROUND
{2} Plaintiff worked for BNSF as a locomotive engineer. On July 30, 2009, Plaintiff was working at a mechanical facility for locomotive railcars in Belen. One of Plaintiff‘s duties was to secure the locomotives by tying or setting handbrakes on each locomotive. A handbrake is a component of a locomotive railcar that is operatеd manually and that helps to secure a stopped train. Setting the handbrakes involves cranking a wheel on the catwalk of each locomotive. The wheel pulls a chain, which is attached to the brake. When the wheel is turned, the brake is pulled up against the wheels of the locomotive.
{3} As Plaintiff tied a handbrake on July 30, 2009, he felt a “pop and a stretch” in his lеft shoulder. Plaintiff finished his shift. Over the next two days Plaintiff
{4} Plaintiff filed a personal injury complaint against BNSF alleging that he injured his shoulder as a result of BNSF‘s nеgligent training and unsafe equipment relating to handbrake use. Plaintiff claimed to have suffered a permanent disability and sought recovery for medical expenses, lost wages, and pain and suffering. A jury returned a special verdict, finding damages in the amount of $80,000, and apportioning fault at seventy-five percent to BNSF and twenty-five percent to Plaintiff. This appeal fоllowed.
DISCUSSION
{5} On appeal BNSF argues that the district court erred in admitting evidence concerning a specialized “handbrake trailer” used in safety training after Plaintiff‘s injury. BNSF also challenges the admissibility of injury reports made by other BNSF employees after unrelated events.
Standard of Review
{6} “We review the admission or exclusion of evidence for abuse of discretion.” Progressive Cas. Ins. Co. v. Vigil, 2015-NMCA-031, ¶ 13, 345 P.3d 1096 (internal
Evidence of the Handbrake Trailer
{7} Prior to trial, BNSF filed a motion in limine seeking to exclude evidence that after Plaintiff‘s injury, BNSF began using a handbrake trailer in safety training programs in its Southwest Division, including the Belen yard, where Plaintiff was injured. The handbrake trailer is a small portable trailer, with simulations of different types of handbrakes. Each handbrake on the trailer is equipped with a pressure gauge. As employees tighten the simulated handbrakes on the trailer, the gauges show the pressure being applied to the brake in pounds per square inch. A red line on the gauge indicates the pressure at which sufficient tension has been placed on the brake. This helps employees to get a sense for the amount of force needed to properly set each handbrake.
{9}
{11} A review of the record in this case reveals that BNSF developed the handbrake trailer prior to Plaintiff‘s injury in July 2009. Julia Stoll, who became BNSF‘s safety manager for the Southwest Division between 2009 and 2011 testified that the trailer was developеd and first used by BNSF‘s Montana Division. Stoll further testified that she was aware of the trailer‘s existence and use in handbrake safety training before she was transferred to the Southwest Division in April 2009. Because the handbrake trailer was developed and used for safety training prior to Plaintiff‘s injury, we conclude that it was not a subsequent remedial measure as contemplated by
{13} BNSF further argues that the district court abused its discretion when it concluded that the trailer evidence was admissible under the
{14} Because evidence concerning the handbrake trailer is relevant to Plaintiff‘s claim, and because use of the trailer was not a subsequent remedial measure, we affirm the district court‘s admission of the evidence without considering
Evidence of Other Injuries
{15} BNSF makes a number of arguments challenging the admissibility of injury reports filed by other BNSF employees. BNSF‘s primary argument is that Plaintiff
{16} In Ohlson v. Kent Nowlin Construction Co., 1983-NMCA-008, ¶ 34, 99 N.M. 539, 660 P.2d 1021, we relied on McCormick‘s Handbook of the Law of Evidence, § 200, at 475 (Edward W. Cleary ed., 2d ed. 1972), for the general rule regarding the admissibility of prior accidents or injuries in negligence cases. Ohlson, 1983-NMCA-008, ¶ 34 (citing McCormick‘s, supra, § 200, at 475). Then, as now, the rule is that evidence of prior accidents or injuries is not relevant to prove a specific act of negligence, but may be relevant to show either the existence of a danger or hazard or a defendant‘s knowledge of the danger. 1 George E. Dix, McCormick on Evidence, § 200, at 1106-07, 1112-13 (Kenneth S. Broun ed., 7th ed. 2013). Evidence of prior accidents or injuries is relevant wherе the circumstances surrounding the prior incidents are substantially similar to the circumstances surrounding the incident at issue. Id. at 1107. The burden of demonstrating substantial similarity lies with the proponent of the evidence. Id. at 1107-08. The degree of similarity required will depend on the nature of the allegedly dangerous condition in each case. Id. at 1111-14. When evidence of previous accidents or injuries is offered to show a defendant‘s knowledge or notice of a danger, a lesser degree of similarity may establish relevance
{17} This is consistent with the general rule in the Tenth Circuit. In Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987) the court noted:
Generally, . . . аdmission of evidence regarding prior accidents or complaints is predicated upon a showing that the circumstances surrounding them were substantially similar to those involved in the present case[,] . . . how substantial the similarity must be is in part a function of the proponent‘s theory of proof. . . . If the accident is offered to prove notice, a lack of exаct similarity of conditions will not cause exclusion provided the accident was of a kind which should have served to warn the defendant. When evidence of other accidents is used to prove notice or awareness of a dangerous condition, the rule requiring substantial similarity of those accidents to the one at issue should be relaxed. Once a court has determined that accidents are substantially similar, any differences in the circumstances surrounding those occurrences go merely to the weight to be given the evidence.
(alterations, internal quotation marks, and citations omitted).
{18} This is consistent with the general rule in other jurisdictions as well. See, e.g., Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 297-98 (6th Cir. 2007) (“Only prior incidents that are substantially similar to the one at issue will be admissible in evidence. This is so in large part because all evidence deemed admissible by the district court must meet the minimal standards of relevancy articulated in
{19} In the present case, BNSF filed a motion in limine seeking to exclude evidence concerning other BNSF employees on the basis that such evidence was irrelevant to BNSF‘s negligence, and that its probative value was substantially outweighed by the danger of unfair prejudice to BNSF and confusion of the issues. Plaintiff argued that the injury reports would show that BNSF was on notice that its employees were sustaining injuries while handling handbrakes, which was relevant to the issue of adequate training. At a hearing on BNSF‘s motion, the parties explained that they were still conducting discovery on the issue. The district court deferred ruling on the motion until discovery was complete.
{20} After hearing arguments on the motion, the district court entered an order limiting the admissibility of the injury reports. The district court ruled that evidence of accident repоrts or injury information produced by BNSF would be admissible to the extent that it related to injuries sustained while applying handbrakes, the setting and releasing of handbrakes, and exertion or pressure during the use of handbrakes,
{21} However, the district court did review the injury reports prior to trial. Addressing preliminary matters prior to jury selection, the district court heard from the parties regarding their objections to the trial exhibits. Plaintiff‘s exhibits included injury reports of other BNSF employees. The reports contained the date of each incident, the physical act and event which led to the injury, a description of the injury, and a short narrative explaining how the injury occurred. BNSF acknowledged that the injury reports were being offered only to demonstrate BNSF‘s notice of handbrake injuries, and did not object to the reports on the basis that they were irrelevant to its negligence. Instead, BNSF objected to one report because it was a duplicate, one report based on the relevant time period, and five reports based on an alleged lack of similarity between the reported incidents and Plaintiff‘s. The district court individually considered each of the reports to which BNSF objected. The duplicate reports and the report outside the relevant time frame were excluded. As to BNSF‘s objection to the other five reports, the district сourt concluded that because the injuries or incidents involved overexertion or repetitive motion in the handling of handbrakes, they were substantially similar to Plaintiff‘s injury and the reports were admitted.
{23} BNSF‘s first three assertions are simply not supported by the record. First, Plaintiff offered the injury reports to show that BNSF had notice of a pattern of exertion injuries related to the operation of handbrakes, not to prove negligence, а fact that BNSF acknowledged prior to trial. Thus, whether the reports were relevant to prove negligence has never been an issue in this case. Second, the district court reviewed each injury report with the parties before jury selection and made specific rulings as to each report. And third, the reports detailed when each injury occurred, whаt task the employee was performing when each injury occurred, what equipment was involved in the injury, descriptions of each injury, and narratives explaining how each injury occurred. The district court correctly determined that the reports contained sufficient detail to establish substantial similarity.
{24} BNSF argues that admitting the injury reports was unfairly prejudicial because it рermitted the jury to infer that BNSF knew its employees were being injured operating handbrakes. According to BNSF, the prejudice was compounded by the fact
{25} Under
{26} “The purpose of
CONCLUSION
{27} For the foregoing reasons, we affirm.
{28} IT IS SO ORDERED
M. MONICA ZAMORA, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Judge