BNSF Worker Reaches $2.3 Million Settlement

by Kelly Wiese, Missouri Lawyers Weekly

Case was filed four days before tort reform took effect

An injured railroad worker has reached a nearly $2.3 million settlement with Burlington Northern Santa Fe Railway Co. in St. Louis City Circuit Court.

Thomas Joe Carney sued BNSF in August 2005 over injuries he suffered while working as a railroad engineer.

According to an amended version of the lawsuit, filed in February, Carney was operating a train on Aug. 16, 2005, when the train ran over rough track, injuring the Thayer man. The suit alleges the track had problems because of a slope failure that occurred during construction of a side track.

Carney said in the suit that his back, neck and spine were injured, and he has severe pain and suffering and continues to have medical treatment for the injuries. He also suffered psychological injury and mental anguish, according to the suit, along with lost wages and benefits.

The lawsuit argued the company was liable under the Federal Employers' Liability Act, "failed to provide the plaintiff with a reasonably safe place to work" and failed to maintain its track in safe condition. The suit also alleges the railroad should have ensured that contractor Ralph Whitehead Associates properly designed the side track.

The suit claims Burlington Northern and Ralph Whitehead should have halted construction once a slope failure was possible, and that they failed to properly monitor the construction project.

St. Louis Circuit Judge David Dowd approved a settlement last month providing Carney $2.26 million and giving the railroad the ability to seek payment from Ralph Whitehead. Dowd, after hearing Carney's testimony, found the settlement "is reasonable and represents a good-faith compromise." The judge said that under the federal law, the railroad has a duty to provide a "reasonably safe" workplace and can be held liable for potentially negligent acts by third parties.

Roger Denton, of Schlichter Bogard & Denton in St. Louis, represented Carney. Denton did not return a message seeking comment while he was out of town.

The railroad's attorney was William Brasher, of the Brasher Law Firm in St. Louis. He also could not be reached for comment.

The railroad has moved several lawsuits it's defending to St. Louis County Circuit Court under changes in state tort laws approved in 2005.

But Carney's lawsuit was filed in the city court four days before those changes took effect and just eight days after the accident. That means the old standards governed this case, and it was allowed because the railroad does business in the city.

Under the revamped tort laws, venue is where an injury occurred, or for out-of-state injuries, where corporate defendants have a registered agent or where a plaintiff lives. The railroad's agent is in St. Louis County.

The company has moved seven railroad personal injury cases to the county since 2006, Brasher said recently, with more to come.

Facts of the Case

Type of Action: workplace injury/FELA
Court: St. Louis City Circuit Court
Case Number/Date: 22052-09273/March 18, 2008
Judge: David Dowd
Verdict or Settlement: $ 2.26 settlement
Caption: Thomas Joe Carney v. BNSF Railway
Plaintiff's Attorneys: Roger Denton and Richard Zalasky, Schlichter Bogard & Denton, St. Louis
Defendant's Attorneys: William Brasher, Brasher Law Firm, St. Louis

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