State Appellate Court Affirms Punitive Damages, Stating Evidence Supported Reckless Indifference

BNSF Railway Co. (BNSF) appealed the denial of its motion for summary judgment notwithstanding the verdict (JNOV) following a jury trial and judgment, which granted Thomas and Dana Tubbs $2,598,000 in actual damages and $1,231,000 in punitive damages. The jury verdict and judgment were for BNSF’s negligence in choosing not to provide adequate drainage for a portion of railroad track that bisected the Tubbses’ farm.

The verdict was affirmed in this case by the Missouri Appellate Court. “The Tubbses own and operate a farm in a floodplain near the Missouri River in Holt County, Mo.”

. . . BNSF, an interstate freight railroad, owns and operates a track that runs east and west along the floodplain and bisects the Tubbses’ farm. The track sits atop an earthen embankment, which was originally rebuilt in 1887.

The embankment blocked the free flow of occasional flood waters from the Missouri River. In response to recurrent flooding over the years, BNSF incrementally raised the height of the track and added more ballast (crushed rock) between the embankment and the track to prevent water from spilling over the track and interrupting rail service. But, as the height of the track increased, BNSF did not provide additional drainage capacity (e.g., bridges or culverts) to address the increased volume of dammed water.

In the opinion, it was stated that “ordinarily punitive damages are not recoverable in actions for negligence, because negligence, a mere omission of the duty to exercise care, is antithesis of willful or intentional conduct.” Blanks v. Fluor Corp., 450 S.W.3d 308, 401 (Mo. App. E.D. 2014).

“But an act or omission, though properly characterizes negligent, may manifest such reckless indifference to the rights of others that the law will imply than an injury resulting from it was intentionally inflicted.” Hoover’s Dairy, Inc. v. Mid-Am. Dairymen, Inc./Special Prods., Inc., 700 S.W.2d 426, 435 (Mo. Banc 1985).

Viewed in the light most favorable to the Tubbses, the evidence in this case was sufficient to permit the jury to conclude that BNSF acted with “conscious negligence tantamount to intentional wrongdoing” where BNSF knew that its track was located in an area that frequently flooded, that the embankment under its track acted as a dam, that the existing drainage facility in the embankment was inadequate to allow water to pass from one side of the embankment to the other, and that the differential in water levels caused by the damming effect of the embankment caused pressure on the embankment.

The evidence was sufficient for a reasonable jury to conclude that BNSF was indifferent to the risks associated with the lack of adequate drainage through the embankment.

BNSF argued that there was insufficient evidence to support the jury’s award of punitive damages because the Tubbses had to show that the railroad’s conduct was “tantamount to intentional wrongdoing,” and they failed to do so. Lopez v. Three Rivers Elc. Co-op, 26 S.W.3d 151, 160 (Mo. Banc 2000).

The Missouri Appellate Court finding that the Eastern District’s recently elaborated meaning of “tantamount to intentional wrongdoing,” was persuasive. That case is Koon v. Walden, 539 S.W. 752, 773-74 (Mo. App. E.D. 2017).

Accordingly, based on the facts of the case and court precedent, viewing the evidence most favorable to the Tubbses supports a finding that BNSF was aware – from its knowledge of surrounding circumstances – that its conduct, coupled with the expectations of increased water flow, would probably result in collapse of the track embankment which is what took place. The appeals panel found support for affirming the punitive damages based on the evidence in this case.

Tubbs v. BNSF Railway Co., WD80749 (Mo. App. W.D. Sept. 4, 2018).

Kreisman Law Offices has been handling catastrophic injury lawsuits, civil jury trials and truck accident lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Berwyn, Bolingbrook, Brookfield, Cicero, Downers Grove, Franklin Park, Glen Ellyn, LaGrange, Lisle, Lombard, West Chicago, Woodridge, Bloomingdale, Aurora, Alsip, Arlington Heights, Schiller Park, Glenview, Chicago Heights, Crest Hill, Minooka, Oswego, Plainfield, Chicago (Belmont Cragin, Irving Park, Avalon Park, Archer Heights, Back of the Yards, Bucktown, Buena Park, Canaryville, Chatham, Edgewater, East Garfield Park, Ford City, Fulton River District, Grand Boulevard, Grand Crossing, Homan Square, Little Village, Lithuanian Plaza), Chicago Ridge, Park Ridge, Park Forest and Prospect Heights, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.