Engineer twists foot in trench left by construction crew: FELA liability: Unsafe workplace: annular fissure: Chronic pain: Verdict

Law Reporter, Mar 2003

RAILROADS

Blount v. CSX Tramp., Inc., U.S. Dist. Ct., WD.N.C., No. 3:99 CV 394-MU, Dec. 11, 2002.

Blount, 38, a locomotive engineer, worked the night shift. Earlier in the day, a construction crew had removed a two-- inch deep section of asphalt along the edge of the sidewalk in front of the railway office. The trench was not marked with cones, tape, or other warning devices. When Blount departed the railway office to inspect the trains, he twisted his foot in the trench and fell, striking his back on the edge of the sidewalk.

Blount suffered a small annular fissure and a bulging disk in his low back. He suffers chronic pain, which has triggered depression. Blount, who earned $50,000 a year, is unable to return to work as an engineer. In the event he is able to return to work, it is estimated that his earnings will be between $7 and $10 an hour. His lost earnings are estimated at $800,000 to $1 million.

Blount brought suit against the railroad under the Federa Employers' Liability Act, 45 U.S.C. secs 51 et seq., alleging failure to provide a reasonably safe workplace by failing to mark the trench or warn of its existence. Defendant contended that plaintiff was negligent in failing to observe the trench on entering the office.

A jury awarded $1.5 million. Defendant has filed a motion to set aside the verdict.

Plaintiffs experts were Alfred Rhymes, orthopedics; Brian O'Malley, psychology; Kern Carlton, pain management; and George Page, vocational rehabilitation, all of Charlotte, N.C.; and Oliver Wood, economics, Columbia, S.C.

Plaintiff's Counsel

*C. Arthur Rutter III, Norfolk, Va.

*Robert L. Mills, Norfolk, Va.

Kent Brown, Charlotte, N.C.