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Curl v. BNSF Railway Co.

Court of Appeals of Missouri, Western District, Third Division

May 16, 2017

JERED M. CURL, Respondent,
v.
BNSF RAILWAY CO., Appellant.

         APPEAL 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

          VICTOR C. HOWARD, JUDGE

         BNSF 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 affirmed.

         Background

         On 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.

         BNSF 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."

         Thereafter, 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 for trial.

         BNSF 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 procedure.

         The 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.

         BNSF did not assert any other failure to mitigate damages defense in its first amended answer.

         Trial 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.

         Five 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 else."

         In 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 defenses.

         Thereafter, 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 EIGHTH DEFENSE:

Defendant alleges that plaintiff failed to reasonably mitigate his damages in the ...

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