50 May 2016 | | Trial JUERGEN BOSSE/GETTY IMAGES

Spotlight

Parsons v. Norfolk S. R.R. Co.No. 2011-L-009265

(Ill. Cir. Ct. Cook Cnty. Nov. 20, 2015)

By Rya n Wat s o n

On Sept. 2, 2011, Michael Par-sons, a 30-year-old conductor for Norfolk Southern Railroad Co., was reorganizing railroad cars. The switches in the area

where he was working had been replaced recently, narrowing the dis-tance between two previously parallel tracks. As Parsons was riding on the side of a rail car, it collided with another car parked on an adjacent track, shear-ing off his left heel.

Parsons received a skin graft, but his heel bone later died and was removed. He  received a larger, bulky skin graft to cover the wound. He was unable to put weight on his foot for two years,

and after he began using it again, the graft tore, resulting in multiple infec-tions. He likely will experience similar problems for the rest of his life. The only permanent solution would be to amputate his leg below the knee.

Chicago attorneys John Power and George Brugess represented Parsons in his suit against Norfolk Southern under the Federal Employers’ Liability Act—the exclusive remedy for railroad workers injured on the job. Brugess argued that the railroad had created a dangerous con-dition in the rail yard, and Power argued that Parsons’s injuries were severe.

After a nine-day trial, the jury awarded the plaintiff $22.47 million. This included $19 million for Parsons’s pain and suff ering, $1.5 million for dis-fi gurement, $1.5 million in lost benefi ts and earnings, and $474,102 for future medical expenses. The railroad initially off ered only $1 million to settle. “They never took us seriously,” said Power.

The key issue at trial was twofold—first, whether Norfolk Southern had “reconstructed” the rail yard when it replaced several track switches in the summer of 2011; and second, what dis-tance was required between the

previously parallel track centers. At the time of Parsons’s injury, only 10 feet and five inches separated the track centers.

The 51st Street yard was built more than a century ago with 12-foot track centers. A state regulation requiring 13 feet and six inches between track cen-ters was later enacted, but the railroad argued that the rail yard was grandfa-thered out of that requirement because it was built earlier. Under Illinois law, however, a rail yard loses that protec-tion if it is reconstructed; then it must comply with the regulation.

As Power and Brugess pointed out, Norfolk Southern’s internal rules require 14-foot track centers after reconstruction, which is more than the

state regulation. “Our goal was to make it clear to the jury that these railroads are putting people in jeopardy by not following their own rules,” said Power.

Much of the expert testimony addressed whether the replacement of track switches constituted reconstruc-tion of the yard. The court put special interrogatories before the jury, asking it to decide whether the replacement of switches required the railroad to bring the yard up to code. The jury answered in the affi rmative.

The railroad also argued that it had designated the area between the two

Our goal was to make it clear to the jury that these railroads are putting people in jeopardy by not following their own rules.

Railroad Ignored Its Own Safety Rule

Reprinted with permission of Trial (June 2016)

Copyright American Association for Justice,

Formerly Association of Trial Lawyers of America (ATLA ®)

https://www.justice.org/publications

Reprinted with permission of Trial (June 2016)

Copyright American Association for Justice,

Formerly Association of Trial Lawyers of America (ATLA ®)

https://www.justice.org/publications

Trial | | May 2016 51

tracks a “no-parking” zone and that Parsons created the dangerous condi-tion by parking rail cars there. If so, his actions would have been the sole cause of his injuries. This argument back-fi red—three other conductors testifi ed that t rains were always left in the claimed no-parking area, and the plain-tiff s presented dash cam footage show-ing several train cars were parked in that area.

On the basis of its no-parking argu-ment, the railroad requested an alloca-tion of fault, but the jury found the railroad 100 percent liable. The video footage was particularly damning, Power said, as it directly contradicted the railroad’s argument and may have angered the jurors.

The damages case was less compli-cated—Power said the railroad called no medical expert and made no serious arguments about the elements of dam-ages. “Lawyers often are so stuck on liability that they push the damages case to the back burner—not because they don’t want to argue damages, but because they really want to establish liability fi rst,” Power said.

Parsons maintained a positive, upbeat attitude throughout trial, and Power is confi dent that his client will succeed despite his injuries. All Par-sons wanted to do was get back to work on the railroad. “This was his dream job, and he loved it,” Power said. Power explained why verdicts like these are so important. “None of the catastrophi-cally injured clients I’ve represented view these jury awards as a win—it’s about making their lives a bit more comfortable. For some of them, it’s the one time in their life they can protect their families and their livelihoods.”

The railroad has appealed, but Power is confi dent that the verdict will sur-vive. “The judge gave us a good trial, and he did it right.”

NEED DIRECTION ON NJ REFERRALS?

Respected, Reliable, Referral Partner

(973) 635-5400 One Main Street • Chatham, NJ 07928

Jersey City • North Bergen • Sea Girt

www.njatty.comTwelve of our nineteen lawyers are Certifi ed by the Supreme Court of New Jersey as Civil Trial Attorneys,

and as such, are able to pay referral fees without the necessity of your participation pursuant to R:1:39-6(d).

Respected, Reliable, Referral Partner

MILLION DOLLAR ADVOCATES FORUM