Case Name: Vivika A. Deviney v. Union Pacific Railroad Company
Date Decided: November 17, 2009
Court: Court of Appeals of Nebraska
Judge: Judge Sievers

Background:
Vivika A. Deviney (“Deviney”) brought an action under the Federal Employers’ Liability Act (“FELA”) against defendant, Union Pacific Railroad Company (“UP”) alleging that she contracted West Nile virus while employed as a conductor by UP.

Deviney sought to recover damages for severe injuries resulting from the contraction of the virus. As a result of the virus, Deviney suffered 84% hearing loss in her right ear and 20% in her left and also suffers from fatigue, vertigo, reduced vision, and left-side weakness.

Deviney alleged that when she got off a train to perform an inspection, the mosquitoes were thick and estimated that she was bit almost 25 times while performing her inspection. Deviney radioed the dispatcher to complain about the bugs but stated that the only response was laughter.

Deviney stated that mosquitoes were bad around the UP train yard. Within a week after her last day, Deviney developed headaches, vomiting, and nausea eventually being diagnosed with the West Nile virus.

Deviney filed a complaint against UP alleging that she was bitten by mosquitoes while in the course and scope of her employment, resulting in the diagnosis of the virus and alleged that she suffered severe and permanent injuries and disability caused by UP’s negligence in violation of FELA.

UP filed a motion a motion for summary judgment and the district court granted it.

Issue:
Did this court affirm the district court’s granting of UP’s motion for summary judgment?

Held:
First, this Court found that Deviney had introduced evidence that UP breached its duty to provide Deviney with a reasonably safe place to work. UP knew of the dangers associated with the virus and that it was a “mosquito-born disease”. Moreover, the general manager of safety for UP stated that he became aware of the virus through the news and information.

Also, next to the train yard, UP’s treatment plant and operations manager stated that he had a duty to treat UP’s property for insects like mosquitoes.

Moreover, UP knew that the virus posed a significant threat, as evidenced by posting an accident prevention bulletin. UP knew that the virus was a “mosquito-borne disease” and knew or should have known that even a small amount of stagnant water can lead to a significant amount of mosquitoes.

Accordingly, this Court found that the granting of summary judgment in favor of UP was improper and reversed.

Comment:
Two elements under a FELA cause of action are that the plaintiff must show a (1) Breach of duty and (2) that the injury was a foreseeable result of breaching that duty.

Here, the defendant did not provide the plaintiff with a reasonably safe work place, in allowing the mosquitoes to accumulate without properly treating them. Moreover, as evidenced by general safety bulletins issued by UP, they knew or should have known that failure to take care of the mosquitoes (provide a reasonably safe workplace) would lead to the injuries suffered by the plaintiff.

Steve Gordon