The Nebraska Court of Appeals has stung the railroad industry by reinstating the case of a train conductor who claims she got West Nile disease because her employer did not take reasonable steps to protect her from mosquitoes.

Vivika Deviney alleged that a mosquito infected with West Nile virus (WNV) bit her while she was working in Wyoming more than six years ago. She sued Union Pacific Railroad Co. for negligence under the Federal Employers' Liability Act (FELA), which requires railroads to provide their employees with “a reasonably safe place to work.”

Evidence that, among other things, a UP manager only sprayed an evaporation pond in the Bill, Wyo., trainyard with insecticide when mosquitoes were a “noticeable problem” convinced a 2-1 majority of the appeals court to reverse a trial judge who had summarily dismissed the case.

“[T]here is certainly some evidence that Union Pacific breached its duty to provide Deviney with a reasonably safe place to work,” Judge Richard D. Sievers wrote in a recent opinion. The insecticide, he said, should have been used on mosquito larvae before the mosquitoes hatched and became noticeable.

In a dissent, Judge William B. Cassel said the risk of being bitten by a mosquito is so random that the majority had

effectively impose[d] strict liability upon FELA employers for a mosquito bite resulting in WNV. While the majority opinion correctly notes that a FELA employer has a duty to furnish its employees a “reasonably safe place to work,” the majority’s decision effectively makes the employer an insurer for a random risk beyond human control.

Deviney developed symptoms of West Nile virus shortly after she worked a late shift in August 2003 taking a coal train from Bill to mines near Gillette, Wyo. As she got off the train to perform a roll-by inspection of a passing train near East Cadaro Junction, she was bitten on her hands and neck by mosquitoes.

“You couldn’t stand still because the mosquito[e]s were so bad,” she has testified. “I had to ... walk and watch the train as it went by and wave my arms.” She also said there were mosquitoes in the Bill trainyard.

In dismissing the case, a Douglas County District Court judge found “the risk of harm to ... Deviney was not reasonably foreseeable to, or preventable by, [Union Pacific],” pointing to the railroad's lack of specific knowledge about large concentrations of mosquitoes at either East Cadaro Junction or the Bill yard.

But in Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108 (1963), the U.S. Supreme Court said a railroad could be held liable for an employee's insect bite if there was evidence that it knew the accumulation of water in a stagnant pool would attract bugs.

“Gallick looks specifically at whether an employer has to take reasonable steps to protect its employees from bug bites,” Deviney attorney Richard L. Carlson said in oral arguments.

Judge Sievers ruled that a jury should decide whether it was reasonable for UP operations manager Bernie Boersma to treat the evaporation pond only when he noticed mosquitoes. “The information in evidence about the larvicide states that it 'kills mosquitoes before they are old enough to bite,'” he noted, concluding that

it could be inferred that [Boersma] was not properly using the larvicide to treat the property for mosquitoes, because proper treatment with the larvicide would have occurred before the mosquitoes hatched.

Union Pacific attorney William M. Lamson argued to the court that Gallick “did not address the issue that's addressed here -– which is, when you have mosquitoes that are ubiquitous, what is the duty of the employer or the landlord in that situation?”

“If it's not to eradicate all the mosquitoes, what is the duty?” he asked. “... The plaintiff is really proposing that the court adopt strict liability ... What they're really saying is if you have a bug bite and if you get sick and the bug bite might have taken place in the course of your employment, then there's strict liability.”

That argument, however, convinced only Judge Cassel. “It is not reasonable to impose upon Union Pacific a duty to eradicate mosquitoes that may fly into the area in which an employee happens to be working,” he said.

By Matthew Heller
11/30/09