Court of Appeals of Missouri, Western District, Third Division
JERED M. CURL, Respondent,
BNSF RAILWAY CO., Appellant.
FROM THE CIRCUIT COURT OF CLINTON COUNTY, MISSOURI THE
HONORABLE RICHARD BRENT ELLIOTT, JUDGE
Before: Anthony Rex Gabbert, Presiding Judge, Victor C.
Howard, Judge and Cynthia L. Martin, Judge
C. HOWARD, JUDGE
Railway Company appeals the judgment on a jury verdict
awarding Jered Curl damages in the amount of $4, 300, 000 on
his negligence claim under the Federal Employers'
Liability Act (FELA). BNSF raises four points on appeal
challenging the trial court's refusal to permit it to
assert a mitigation of damages defense. The judgment is
December 6, 2013, Mr. Curl filed a petition against BNSF
seeking damages under FELA for injuries he alleged he
sustained on July 12, 2012, while working for BNSF on a
maintenance of way rail-gang RP17 as an operator of a Rail
Heater machine. Mr. Curl alleged that the gang was moving
four machines-a Boxer, the Rail Heater operated by Mr. Curl,
a Spiker machine, and a Crane-in a single file caravan down
the track when Mr. Curl's Rail Heater was struck from
behind by the Spiker machine. He further alleged that the
rear-end collision caused injuries to his neck and back. Mr.
Curl sought damages for, among other things, medical
expenses, physical and mental pain and anguish, and
diminished earnings capacity.
filed its answer, which included several affirmative
defenses. As its FOURTH DEFENSE, BNSF stated, in pertinent
part, that if plaintiff sustained injury or damages as
alleged in his petition, then his negligence or contributory
negligence, specifically his "[f]ailure to take
reasonable steps to avoid consequences to himself and/or
mitigate his damages, " caused such injuries or damages.
Additionally, BNSF generally stated as its NINTH DEFENSE,
"Plaintiff failed to mitigate damages and/or to take
reasonable steps to avoid consequences to himself."
Mr. Curl filed a motion under Rule 55.27(d) for more definite
statements of several of the affirmative defenses including
the fourth and ninth defenses. He argued that Rule 55.08
requires a short and plain statement of the facts showing
that the pleader is entitled to the defense and that the
defendant wholly failed to allege the facts necessary to
allow the plaintiff to adequately frame discovery or prepare
filed suggestions in opposition to the motion arguing that
Missouri law requires that a pleading simply contain
"ultimate facts" and that its defenses met the
requirement. It further asserted that to the extent its
answer lacked specificity, it was due to Mr. Curl's
petition being "entirely devoid of factual specificity
with respect to many of the key allegations of negligence and
damages." Thus, it requested the trial court require Mr.
Curl make his petition more definite and certain before it
was required to make its answer more definite and certain.
BNSF did not argue that any of its affirmative defenses
regarding damages were not subject to Missouri's rules of
trial court sustained Mr. Curl's motion for more definite
statement and instructed BNSF to amend its answer to comport
with the requirements of Rule 55.08. On July 7, 2014, BNSF
filed its first amended answer. As its FIFTH DEFENSE, BNSF
asserted a contributory negligence defense that Mr. Curl
"failed to mitigate damages and/or take reasonable steps
to avoid consequences to himself" by failing to properly
utilize his on-board radio communication system.
Specifically, it asserted:
Upon information and belief, at the time of the incident
alleged in plaintiff's Petition, Plaintiff failed to
properly utilize his on-board radio communication system by
improperly reducing the volume on the system and/or by not
heeding communications transmitted on the system, and/or by
failing to act upon communications transmitted on the system.
did not assert any other failure to mitigate damages defense
in its first amended answer.
was eventually set for December 14-18, 2015. On September 9,
2015, BNSF filed Defendant's Admission of Negligence
admitting that it was solely responsible for causing the July
12, 2012 accident in which plaintiff was injured. It reserved
the right to submit evidence on issues relating to the
medical causation of plaintiff's injuries and to the
nature and extent of all injuries and damages. At a pre-trial
conference held on November 4, 2015, forty days before trial,
BNSF requested to file an amended answer "to kind of
clean up my answer and meld that pleading" since it had
admitted negligence. Counsel for Mr. Curl stated that he had
no objection "so long as it doesn't change anything
else. We've been operating under that [pleading] on all
issues." The trial court granted leave to amend.
days later, BNSF filed its second amended answer, which
eliminated the contributory negligence/mitigation of damages
defense from its first amended answer since it had admitted
negligence. BNSF asserted as its SEVENTH DEFENSE in the
second amended answer, "Defendant alleges that plaintiff
failed to mitigate damages." On November 18, 2015, Mr.
Curl filed a motion to strike the SEVENTH DEFENSE asserted in
BNSF's second amended answer. He argued that the SEVENTH
DEFENSE was an attempt to reassert a failure to mitigate
economic damages defense that was improperly pleaded in its
original answer as its NINTH DEFENSE. Mr. Curl explained that
after the trial court ordered BNSF to amend its original
answer to comply with Rule 55.08, BNSF filed its first
amended answer stating only a contributory
negligence/mitigation of damages defense-by failing to
properly utilize his on-board radio. BNSF did not state a
failure to mitigate economic damages defense in its first
amended answer. Mr. Curl further argued that the SEVENTH
DEFENSE is contrary to BNSF's motion to amend on November
4 and the agreement of counsel. Specifically, BNSF moved to
amend its answer for the sole purpose to comport with its
admission of negligence and Mr. Curl did not object to the
amendment "so long as it doesn't change anything
response to Mr. Curl's motion to strike the SEVENTH
DEFENSE, BNSF moved to amend its answer to add a short plain
statement of fact. The trial court denied BNSF's motion
to file an amended answer containing additional affirmative
on November 23, 2015, twenty-one days before trial, BNSF
filed a motion for leave to file a third amended answer. In
its proposed third amended answer, BNSF asserted as its
Defendant alleges that plaintiff failed to reasonably
mitigate his damages in the ...