Cook County Record

Sunday, March 29, 2020

Appeals court: Ex-rail worker can keep $21M judgment for foot severely injured in accident on job

By Scott Holland | Aug 30, 2017

Law money 08

A state appeals court has upheld a $21 million judgment for a railroad worker who hurt his foot on the job.

Michael Parsons started working as a conductor for Norfolk Southern Railway Company in September 2010, and on Sept. 2, 2011, his left foot was crushed between the railcar on which he was riding and a car he’d recently left on an adjacent track at the 51st/55th Street railway in Chicago.

Parsons sued the company for negligence under the Federal Employers’ Liability Act, and on Nov. 19, 2015, a Cook County jury determined Parsons was not at all negligent, awarding him $1.5 million for lost earnings and $19 million in damages. Norfolk Southern filed a post-trial motion seeking either judgment in its favor, a new trial or to have the judge reduce or eliminate the verdict.

On April 21, 2016, the court denied almost all the relief Norfolk Southern sought, though now retired Cook County Circuit Judge Donald J. Suriano did remove $1 million from the lost earnings award. Parsons accepted those terms May 4, 2016, lowering the final judgment to $21.4 million. The company appealed in May 2016.

In an opinion issued Aug. 25, the Illinois First District Appellate Court upheld Suriano’s ruling. Justice Joy V. Cunningham wrote the opinion; justices Mark K. Rochford and Mathias W. Delort concurred.

Norfolk Southern, in appealing, argued the jury erred in saying Parsons was not negligent in the incident that caused his injury; said the jury got an improper instruction regarding assumption of risk; argued certain trial proceedings deprived it of a fair trial; and argued the jury should not have been allowed to award damages for disability in addition to pain and suffering. It asked for a new trial or a remittur on the $19 million award.

Cunningham’s analysis opened by noting the 1960 Illinois Second District Appellate Court ruling in Finley v. New York Central Railraod Co., which established “the sole question is whether there is any evidence, considered in the light most favorable to the plaintiff, that defendant was guilty of negligence which contributed in whole or in part to the injury.”

Revisiting testimony from the jury trial, the panel determined the jury could find Parsons’ conduct was reasonable owing to testimony supporting claims his conduct leading up to the accident was customary for many rail yard workers.

Norfolk Southern took issue with the jury being told Parsons “shall not be held to have assumed the risks of his employment,” but the justices said that even if they assumed that instruction was improper, the company didn’t “show any resulting prejudice … the jury’s ability to reduce any damages in proportion to (Parsons’) contributory negligence was thoroughly argued by the parties and repeatedly explained by the trial court.”

The justices likewise said the rail company was not unfairly prejudiced based on conflicting evidence about if the tracks at the accident site were parallel, affirming that the jury was properly instructed on Parsons’ theory of his argument.

The railroad company also strongly opposed the comments Parsons’ lawyer made during closing arguments, but the panel again rejected that argument, writing: “Viewing the trial as a whole, we cannot say that the challenged comments, individually or cumulatively, constituted substantial prejudice.” Specifically, they said the remarks were either too vague to result in prejudice or material enough to the underlying argument to not be deemed incendiary.

The panel said Norfolk Southern failed to cite federal precedent to support its claim a disability award was improper for a FELA claim. Finally, in rejecting the motion to reduce the damages by $10 million, the panel pointed out Parsons, who was 34 at the time of the trial, may need surgery every four or five years for the rest of his life and that his pain and suffering will only increase.

“We cannot say that the jury’s award was unreasonable, resulted from passion or prejudice, or shocks the conscience,” Cunningham wrote.

According to Cook County court records, Parsons was represented by the firm of Cogan & Power, of Chicago.

Norfolk Southern was defended by the firm of Daley Mohan Groble P.C., of Chicago.

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Organizations in this Story

Daley Mohan Groble, P.C.Cogan & Power PCNorfolk Southern Railway CompanyIllinois First District Appellate Court