After nearly five years of hearings, evidence gathering and healing, a lawsuit against BNSF by employee Gary Moeller came to its conclusion late Wednesday evening with the jury ruling in favor of BNSF.
The lawsuit was the result of a fall Moeller took as he was walking down a hill to the BNSF parking lot after work on Feb. 11, 2014. The fall led to an emergency room visit, physical therapy and resulted in a total knee replacement for Moeller, as well as roughly six months where he was unable to return to work.
A civil lawsuit was filed against BNSF in 2017, with the complaint claiming that BNSF failed to provide reasonably safe work conditions by not applying salt and sand to a path used by employees to get to their vehicles, causing a dangerous condition.
Almost two years passed since the initial filing of the case, with a jury being impaneled on Monday morning. After selecting a jury, comprised of two men and 11 women, the attorneys began the trial with opening statements.
James Zimmerman, who represented Moeller, addressed the jury, explaining that his client suffered damages and financial loss due to BNSF’s failure to ensure the safety of their employees.
“I have the distinct impression that the railroad prides itself on all the rules they create and expect their employees to follow as safety procedures. But do they take responsibility when an employee is injured? The answer is no,” said Zimmerman.
Zimmerman went on to describe cables that rested at the top of the hill used to pull railcars, and the steep grade of the hill employees, such as Moeller, used day in and day out to access a portion of the parking lot.
“On Feb. 11, 2014, Mr. Moeller encountered two hazards. On Feb. 11, it snowed, and when he got to the hill, it had snowed so much he wasn’t sure where the cables were, so he stepped far enough to avoid the cables, and when he brought his foot down, he slipped and fell, bashed his head, injured his knee and slid down the hill,” Zimmerman said.
Moeller, Zimmerman told the jury, was out of work from the date of the accident until Aug. 6, 2014, leading to lost wages as he treated his injury. Zimmerman reiterated BNSF was negligent in the case because the company had the cables at the top of the hill used by employees and because it failed to clear the ice and snow from the path.
Tyler Spahn, one of the attorneys who represented BNSF, spoke to the jury, refuting Zimmerman’s claims as a distraction from the real issue.
“This case isn’t about cables or a hill; it’s about an osteoarthritic knee,” said Spahn. “Mr. Moeller has experienced issues with his right knee throughout his life. His fall in 2014 didn’t cause his knee replacement. His knee replacement was medically necessary years before.”
Spahn told the jury that Moeller had a safer alternative to the hill, in the form of an underground tunnel that led from the facility to the parking lot.
“The fall wasn’t caused by an unsafe hill, but an osteoarthritic knee. He didn’t trip over cables — he stepped over them and slid down the hill. Mr. Moeller chose to take the hill that day. The only thing unsafe about that hill that day was Mr. Moeller’s right knee,” said Spahn.
Moeller testified in the case on Monday morning. He explained that he had been employed through the railroad for 41 years. He said he, and employees, frequently chose to use the hill route to access the buildings where they worked rather than take the tunnel because it was, “… about 200 yards shorter than going through the tunnel.”
Moeller said he had been using the route for approximately 36 years, noting a staircase had at one time existed, crossing over the cables at the top of the hill. He said the staircase was later removed.
On that day, Moeller recounted the fall during his testimony.
“I took a big step over the cables, and I put my foot down. Immediately I went shooting down the hill for about seven, eight or nine feet and my right knee hit the ice,” said Moeller. “My right leg felt like it was on fire — it just burned. I was dazed when I was laying there. I was out of it. I was flopping like a fish figuring out how to get up.”
After being helped up by other employees who witnessed the fall, Moeller said he made it to his car and went to Bomgaars and in the parking lot he vomited. He then returned home where he noticed his leg began to swell.
“I couldn’t get my pants off because my leg was swollen. I stayed up all night until I went to the emergency room. I figured I would be fired if I didn’t report [the fall] before going to the emergency room. I had to wear shorts because I couldn’t put pants on, and it was 2 degrees below zero out,” Moeller said.
Fluid was drained from his leg in the emergency room and an X-ray was taken. Moeller later saw an orthopedic surgeon in Fort Collins, Colo. who recommended physical therapy and, eventually, a total knee replacement. The surgery was performed and Moeller underwent physical therapy again, returning to work at BNSF in August.
Zimmerman asked Moeller if a prompt investigation of the accident had taken place per BNSF rules, and Moeller said the investigation was completed 10 days after the fall, showing no tripping hazards.
During the cross examination, Spahn recounted a history of knee and leg injuries for Moeller, dating back to a football injury in high school, a surgery in 1984, being kicked by a calf in the right shin in 2006, being knocked down by a cow in 2008 and also falling down the stairs at home.
Spahn asked Moeller why he chose to take the hill that day, and Moeller reiterated he made the choice because it was the shorter route to his vehicle. Spahn then asked Moeller about parking closer to the tunnel, and Moeller responded that it came down to the availability of parking spaces.
Moeller’s testimony resumed on Tuesday morning, with Spahn asking him more questions about the hill and why he hadn’t worn anti-slip shoes or crampons as required by BNSF. Moeller responded that he had not worn crampons because it wasn’t required during non-working hours, and because they were hard to put on and take off, noting he would have to remove them before entering his vehicle.
Moeller’s testimony ended on Tuesday morning. Throughout the rest of the trial, the jury heard from other employees who witnessed the fall, doctors and medical experts who testified about the condition of Moeller’s knee.
On Wednesday afternoon, the attorneys made their closing arguments to the jury.
“There are rules and rules, and I’m sure everybody has them all right there in the back of their head,” Zimmerman said. “When you work for the railroad, they give you a book with a gazillion rules in it. The most important part of that book is the safety vision statement, in which they say that all accidents are preventable and that hazards would be eliminated.
“They’re saying Mr. Moeller is negligent, because he failed to exercise caution. Everybody knew that the hill and the cables were there and that people used it daily, what hazard did he fail to report? The salt and sander was there, they just didn’t use it.”
Zimmerman addressed Spahn’s claim about the issue being about Moeller’s prior knee injuries.
“You heard so much about his prior health,” said Zimmerman. “You heard about prior degenerative changes. Nobody said the changes didn’t exist. They’re ignoring the fall. There was trauma to his knee. His knee wasn’t symptomatic. He wasn’t calling in to work saying his knee hurt. He had an exacerbation of the condition from the fall on Feb. 11, 2014. There’s no evidence he would have had to have a knee replacement. It was caused by this fall.
“Gary was able to do everything that was required of him at work. Outside of work, he farmed. The fall precipitated the need for the knee replacement then. I don’t know what the plaintiff could have done that would have minimized those damages,” Zimmerman said.
Imploring the jury to give a verdict in favor of his client, Zimmerman said that while Moeller was out of work, he lost out on over $21,000 in wages and about $2,000 in travel expenses to receive treatment in Fort Collins. He also mentioned the pain and suffering endured by Moeller as a result of the fall.
“How are you supposed to enjoy life if you can’t do anything because of the excruciating physical pain?” Zimmerman asked.
In Spahn’s closing arguments, he reiterated that this case came down to the prior condition of Moeller’s knee.
“As I told you at the beginning of the trial, this case isn’t about a hill, it isn’t about cables, it’s about a knee. Mr. Moeller’s history shows prior flare-ups in his knee. Mr. Moeller decided not to undergo the conservative treatments but instead decided to have the knee replacement that he was a candidate for before this fall. I don’t believe BNSF should be held responsible for that decision.
“The cables, the hill and everything like that are just distractions from his bad knee. The only reason he chose to take that hill that day was it was the shorter route—convenience. This case is about two decisions: Mr. Moeller chose to go down the hill that day instead of using the tunnel, then he decided to undergo a total knee replacement. BNSF should not be held responsible for those decisions.”
Spahn also told the jury that Moeller failed to act reasonably and did not adhere to his training by choosing to use the hill rather than the tunnel. He implored the jury to rule in favor of BNSF.
The case was submitted to the jury at 2:40 p.m. Wednesday. They returned with a verdict at 6:07 p.m. They presented their unanimous verdict, ruling in favor of BNSF, stating the plantiff had not met the burden of proof.