Judges breathe life into Union Pacific FELA lawsuit

Chris Rizo Nov. 19, 2009, 8:00am

Richard Sievers

William Cassel

OMAHA, Neb. (Legal Newsline)-A Nebraska woman's lawsuit against Union Pacific Railroad Company, claiming she should have been better protected from West Nile virus, has been given new life.

The Nebraska Court of Appeals on Tuesday reinstated the lawsuit filed by Vivika Deviney, who contracted West Nile virus in 2003.

A former UP conductor, Deviney claims she contracted the illness after being bitten by mosquitoes while working along tracks in Wyoming.

Deviney's claims that Omaha, Neb.-based Union Pacific specifically violated the Federal Employers' Liability Act, which holds railroads responsible for injuries employees suffer on the job because of the companies' negligence.

Her FELA case seeks damages related to her West Nile illness. Court papers indicate that the illness is blamed for Deviney's 84 percent hearing loss in her right ear and 20 percent hearing loss in her left ear as well as for her fatigue, vertigo, reduced vision and left-side weakness.

The lawsuit was dismissed by a Douglas County district judge who found Union Pacific had taken steps to kill potentially infectious mosquito larvae and warn its employees of the risks of West Nile virus.

Deviney -- who lives in Douglas, Wyo. -- appealed to the state appeals court, which ruled that the case should have gone to trial. A three-judge appeals panel reviewed her case.

"There is certainly some evidence that Union Pacific breached its duty to provide Deviney with a reasonably safe place to work," Judge Richard Sievers wrote for the 2-1 majority.

In a dissenting opinion, Judge William Cassel said the railroad was not responsible for protecting Deviney from mosquitoes.

"The majority's decision effectively makes the employer an insurer for a random risk beyond human control," Cassel wrote.


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