Williams v. BNSF Railway Company , 2015 IL App (1st) 121901-B ( 2015 )

Illinois Official Reports
Appellate Court
Williams v. BNSF Ry. Co., 2015 IL App (1st) 121901-BAppellate Court ANTHONY WILLIAMS, Plaintiff-Appellee, v. BNSF RAILWAY
Caption COMPANY, f/k/a Burlington Northern Railway Company, f/k/a The
Burlington Northern and Santa Fe Railway Company, d/b/a The
Burlington Northern Santa Fe Railway Company, Defendant-
Appellant and Third-Party Plaintiff-Appellant (Quality Terminal
Services, LLC, Third-Party Defendant-Appellee).
District & No. First District, Third Division
Docket No. 1-12-1901
Filed March 18, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 06-L-8509; the
Review Hon. Clare E. McWilliams, Judge, presiding.
Judgment Affirmed.
Counsel on Daley Mohan Groble PC, of Chicago (Raymond H. Groble III, Sean
Appeal M. Sullivan, and Jeffrey J. Scolaro, of counsel), for appellant.
Cochran, Cherry, Givens, Smith & Montgomery, LLC, of Chicago
(James D. Montgomery, Jr., and John K. Kennedy, of counsel), for
appellee Anthony Williams.
Fletcher & Sippel LLC, of Chicago (James A. Fletcher and Peter C.
McLeod, of counsel), for appellee Quality Terminal Services, LLC.
Panel JUSTICE MASON delivered the judgment of the court, with opinion.
Justices Neville and Hyman concurred in the judgment and opinion.
OPINION
¶1 Plaintiff-appellee Anthony Williams filed suit against defendant-appellant BNSF Railway
Company (BNSF) pursuant to the Federal Employers Liability Act (FELA) (45 U.S.C. § 51(2006)), for an employment-related injury. BNSF filed a third-party complaint for contribution
and contractual indemnification against third-party defendant-appellee Quality Terminal
Services (QTS). The jury returned a verdict in favor of Williams and awarded total damages in
the amount of $2,676,960. The jury assessed 50% of the negligence involved in the injury to
Williams, 37.5% to BNSF and 12.5% to QTS. The jury also returned a verdict in favor of QTS
on BNSF’s contractual indemnity claim.
¶2 On September 25, 2013, this court dismissed the appeal for lack of jurisdiction, concluding
that because the only issue remaining after the trial court’s oral ruling denying BNSF’s
posttrial motion was a tax setoff issue that did not toll the time for filing an appeal, BNSF’s
appeal was not timely filed. Williams v. BNSF Ry. Co., 2013 IL App (1st) 121901, ¶ 20. The
supreme court reversed and remanded, holding that the judgment was not final until the trial
court issued its ruling on the setoff issue, because the trial court’s prior oral ruling was not
entered in the law record book until that date. Williams v. BNSF Ry. Co., 2015 IL 117444, ¶ 45.
Thus, we now address the merits of BNSF’s appeal.
¶3 On appeal, BNSF contends that the circuit court erred in denying its motion for a directed
verdict on the contractual indemnity claim where the evidence established that BNSF gave
reasonable notice to QTS. BNSF further contends that the circuit court erred in refusing to
allow evidence related to Williams’ termination of employment with BNSF. Finally, BNSF
contends that the circuit court erred in allowing evidence of the loss of household services,
including unsupported opinion testimony regarding the value of those services. We are not
persuaded by BNSF’s arguments and affirm the judgment of the circuit court of Cook County.
¶4 BACKGROUND
¶5 On August 21, 2003, Williams was working as a crane operator for BNSF and sustained an
injury to his back for which he obtained immediate medical attention. The incident occurred at
an intermodal rail facility located in Cicero, Illinois, that is owned and operated by BNSF.
Williams’ employment with BNSF was scheduled to be terminated at the end of his shift, an
event that was related to prior disciplinary violations.
¶6 The BNSF Cicero yard is a hub for shipping and receiving freight in containers that are
placed on and removed from railcar chassis or delivery trucks by the use of a crane operated by
an employee, the crane operator, assisted from the ground by another employee, the crane
director. The crane operators and directors are BNSF employees but at the time of the incident,
the loading and unloading operations at the facility were managed and supervised by QTS
pursuant to an “Intermodal Facilities Services Agreement” (Agreement) between QTS and
BNSF. The Agreement contained an indemnification clause that required BNSF to give
reasonable notice to QTS of any claim that could trigger the indemnification provision.
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¶7 Following the incident, BNSF initiated an investigation into the circumstances surrounding
Williams’ injury. In December 2003, BNSF received written notice of an attorney’s lien from a
law firm retained by Williams to pursue a personal injury claim. BNSF received a second
notice of an attorney’s lien from a different law firm in March 2005.
¶8 Williams filed his complaint against BNSF on August 20, 2006. One of the acts of
negligence alleged in the complaint was BNSF’s failure to provide Williams with “sufficient
manpower” to perform his duties on the date of the accident.
¶9 Williams was deposed in May 2007. Williams testified that on the night he was injured he
was working alone and that Frank Stephenson, the QTS supervisor on duty, directed him to do
so. Pursuant to the Agreement, BNSF submitted a written demand for indemnity to QTS in
August 2007, predicated on information BNSF claimed it first learned from Williams’
deposition testimony. QTS rejected the demand and BNSF filed a third-party complaint
against QTS for contribution and indemnity on August 26, 2008. In response to BNSF’s claim
for indemnification, QTS raised the affirmative defense that BNSF had not submitted its
written demand for indemnification within a “reasonable time” as required under the
Agreement.
¶ 10 Prior to trial, Williams filed a motion in limine to bar evidence of his termination by BNSF
on the grounds that it was not relevant to the issues in the case. At the hearing on the motion,
the trial court stated that it did not want a “trial within a trial” where the jurors would concern
themselves with whether or not Williams was properly terminated, a proposition with which
counsel for BNSF agreed. Counsel for BNSF argued, however, that the termination was
relevant to an argument that Williams had a motive to fabricate his injury. During the trial, the
trial court again ruled against the admission of the evidence, particularly because there was no
evidence to suggest that Williams knew he was going to be terminated that day, thus
undermining any motive BNSF could ascribe to him.
¶ 11 Also prior to trial, the trial court denied QTS’ motion for summary judgment on the
timeliness of BNSF’s demand for indemnification under the Agreement. The court found that
there existed genuine issues of material fact regarding when BNSF knew or should have
known that the negligence of a QTS employee caused, in whole or in part, Williams’ injury and
that whether BNSF submitted its demand for indemnification within a “reasonable time”
presented an issue for the jury.
¶ 12 The trial of the case spanned nine days. More than a dozen witnesses testified. Of the 46
assignments of error raised in BNSF’s posttrial motion, BNSF has elected to pursue only 3 of
those on appeal. We summarize only so much of the evidence as is necessary to a discussion of
these issues.
¶ 13 At trial, Williams testified that he was employed by BNSF at the time of the injury and was
working at the Cicero yard as a crane operator. He had previously worked as a crane director.
Williams explained that a crane director needs to be in a position on the ground that allows the
director to see areas that the crane operator cannot see from inside the cab of the crane. The
director lets the operator know whether it is safe to move the crane and if there are any
obstacles. A crane director and a crane operator work as a team, with the operator using the
crane to lift the trailer or container and the director providing direction. It was BNSF’s policy
that any time a crane is in operation, a director must be on the ground providing verbal
directions and hand signals to the operator.
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¶ 14 Williams explained that the team is taken out to the track by the ramp supervisor. Ramp
supervisors are QTS employees. The crane operator-director team performs what are referred
to as “flips.” A flip is performed by taking a container off the ground or off a chassis and
loading it onto another chassis. A “live flip” occurs when a truck driver is in the yard waiting
while the team removes the container from the truck, while an “in-house flip” involves a
container that is already in the yard and needs to be moved to another chassis. For in-house
flips, the crane director unlocks the container from the chassis it is currently on and sets up the
other chassis to receive it. The crane director then indicates to the crane operator that it is safe
to move the container and also indicates whether or not it needs to be adjusted in any way once
it is placed on the chassis. After the container is seated flush on the correct chassis, it is locked
in place by the crane director. Each chassis has front and rear locks and the lock may be a twist
lock or a push/pull pin with a handle.
¶ 15 Williams explained that the tool most often used by a crane director to lock the container in
place is a five-iron. The five-iron is an L-shaped bar with a longer side that is approximately
three feet and a shorter side that is approximately six inches. In order to lock the container in
place using a push/pull pin type of lock, the pin needs to be pulled out before the container is
loaded, and then pushed back through a bolster and into the casting at the base of the container
once it is in place on the chassis. The locks are frequently rusty and the five-iron is used to
either loosen the safety latch when unlocking or to force the pin through the bolster when
locking. Williams stated that at least one pin on each chassis usually had to be locked by
striking the five-iron on the pin to get it to fully insert into the casting.
¶ 16 Williams worked the 11 p.m. to 7 a.m. shift on August 20-21, 2003, and Stephenson was
his supervisor. Williams and Bonnie Deamon, a crane director, were assigned to work together
and Stephenson drove them out to the location of their assignments. They took a lunch break at
approximately 3 a.m. in the yard office, a building that included locker rooms for both men and
women. Williams took his break in the men’s locker room.
¶ 17 At approximately 4 a.m., Stephenson told Williams that he had 12 or 13 in-house flips that
he wanted Williams to do. Williams agreed and asked Stephenson to get Deamon so they could
go out and take care of the flips. Stephenson said everything was lined up in a straight line so it
should not be that difficult and Williams should be able to do it by himself. Despite Williams’
stated preference to have his director with him, Stephenson said he was not going to bother
Deamon and was just going to take Williams out to the yard. When they arrived at the location
where the flips were set up, Williams again said that he preferred to work with his director, but
Stephenson directed Williams to perform the flips himself.
¶ 18 After Stephenson left, Williams checked the crane to make sure everything was in working
order and then went down the line with the five-iron, setting up and unlocking each chassis.
Williams returned to the crane and moved each container onto the correct chassis. Williams
then got out of the crane and walked back with the five-iron to lock down each of the
containers. When he reached the last container, the pin on the final lock would not go in, so he
tapped it with the five-iron and it went in a little but not all the way. Williams then swung the
five-iron to strike the pin with more force. As he did so, he felt a pop in his back and
immediately felt pins and needles shooting down his lower back and buttocks area and
numbness on the outside of his left leg.
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¶ 19 Williams returned to the crane and called Stephenson on the radio to tell him he had been
injured. Stephenson took Williams back to the yard office and Ross Schoepp, a BNSF
manager, took Williams to the hospital.
¶ 20 En route to the hospital, Schoepp first drove Williams to the ramp where he was injured
and asked him to describe what happened. When Williams told Schoepp about striking the pin
with the five-iron, Schoepp asked him if he had used a jabbing motion with the five-iron or a
baseball swing. Williams told Schoepp it was more like a baseball swing.
¶ 21 At trial, Schoepp testified that a baseball swing was not the proper way to use a five-iron.
Schoepp further testified that Williams never told him that Stephenson told him to work alone
and that, if this was true, consistent with BNSF’s policy, Williams should have called the hub
manager or refused to do the flips by himself on the grounds that the conditions were unsafe.
¶ 22 Deamon, the crane director assigned to work with Williams the night of the incident, had
never known a crane operator to go out and perform 12 to 15 flips alone. Deamon received
on-the-job training in the use of the five-iron and said that it was primarily used to unsecure
hitches on flatcars, not to lock pins. After an in-house flip, Deamon would not go back and lock
the pins.
¶ 23 On the night in question, things were slow so Deamon took an extended lunch break. She
explained that when things were slow, she would be placed on lunch break until something
came in and someone would then knock on the locker room door and tell her to come back out.
That night, nobody knocked on the door until someone came to tell her Williams had been
injured. The following day, Fred Jamison, a BNSF supervisor, asked Deamon where she was
during the incident and she told him she was in the locker room having lunch and reading a
book.
¶ 24 Robert Ellman worked for QTS as the superintendent of the Cicero yard at the time of
Williams’ injury. Ellman testified that QTS never conducted an investigation of the incident
involving Williams because it was never notified by BNSF of an incident that required
investigation.
¶ 25 By the time of trial, Williams had been receiving care from an orthopedic surgeon for eight
years and the treatment was ongoing. He received injections in his back for pain for a period of
three to five months beginning in December 2003. Williams also underwent physical therapy
for a period of four years after the incident, during which time he had approximately 80 therapy
sessions. He used an electronic stimulator for pain management and occasionally required the
use of a cane for assistance when walking. Williams had three different braces for his back to
provide different levels of support and continued to take two prescription medications for pain
management. Williams testified that his life activities had changed dramatically since the
injury. He could no longer do chores around the house, either inside or outside. Walking was
more difficult, but resting and sleeping were also difficult because of the pain. He could no
longer enjoy outings and activities with his family.
¶ 26 Stan Smith, a forensic economist, rendered opinions regarding damages attributable to
Williams’ injury. Using standard methodology, Smith calculated Williams’ loss of earnings,
benefits and the loss of the value of household services Williams could no longer perform.
Smith testified that household services typically fall under one of three categories: food
preparation, clothing care, and household maintenance and repair. Smith opined that the loss of
value of household services over Williams’ life expectancy was $657,601. Smith calculated
damages related to Williams’ lost earning capacity to be $1,733,687 assuming he worked until
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the age of 67, and $1,396,821 assuming he retired at age 62. The foregoing totals factored in
Williams’ receipt of a portion of his pension income since the date of his injury.
¶ 27 Kevin Bell, a BNSF claims representative, investigated the incident. Bell was familiar with
the contract between BNSF and QTS, the indemnification clause, and the notice provision.
Bell explained that it was one of the responsibilities of the claims representative to determine
whether BNSF was going to seek indemnification from QTS.
¶ 28 A day or two after the incident, Bell learned of it from Jamison, the BNSF hub manager at
the Cicero yard. Jamison conducted his own investigation into the incident and provided Bell
with a statement from Williams. Bell acknowledged that from the statement he could have
concluded that Williams had been doing the job of both crane operator and crane director at the
time of the injury. Bell learned from Jamison that in the types of flips Williams had been doing,
the pins did not need to be locked and that swinging a five-iron to strike the pins was not the
proper use of the five-iron.1 Bell also spoke with Deamon as part of his investigation. She told
him she was working as Williams’ crane director that night, but did not know anything about
the incident. Bell verified that nobody else was identified as being in the area at the time of the
incident.
¶ 29 In early December 2003, Bell received a notice of attorney’s lien related to the incident
involving Williams. The notice stated that Williams had a potential cause of action stemming
from negligence in the management and maintenance of the Cicero yard. Bell received a
second notice of an attorney’s lien from a different law firm in March 2005.
¶ 30 In September 2006, Bell reviewed the complaint filed by Williams that alleged BNSF
failed to provide him with sufficient manpower to perform his work. Bell confirmed that the
first time he provided written notice to QTS was in August 2007 and explained that he first
learned that Williams was ordered to work alone by the QTS manager at Williams’ deposition
in May 2007.
¶ 31 After the last witness testified, BNSF made an offer of proof of the facts relating to
Williams’ termination. Williams denied that Schoepp told him at the beginning of his shift on
August 21, 2003, that he had to report to Jamison at the end of his shift. BNSF did not supply
any evidence that prior to receipt of the termination letter at the end of his shift on August 21,
2003, Williams had been informed or was otherwise aware that he would be terminated that
day. The trial court accepted BNSF’s offer of proof and denied the motion to reconsider its
prior order barring evidence relating to Williams’ termination.
¶ 32 The trial court denied BNSF’s motion for a directed verdict and Williams’ motion for a
directed finding that Stephenson was an agent of BNSF. The trial court then addressed QTS’
motion for a directed verdict on the issue of indemnification based upon BNSF’s delay in
providing written notice. Counsel for BNSF orally cross-moved for a directed verdict on the
ground that BNSF was not aware prior to Williams’ deposition that QTS was potentially at
fault for the injury. The trial court denied both motions.
¶ 33 As noted, the jury returned a verdict in favor of Williams and against BNSF in the amount
of $2,676,960, consisting of $1,396,821 for past and future lost earning capacity, $328,500 for
lost household services, and $951,639 for pain and suffering. The jury attributed 50% of the
negligence involved in the injury to Williams, 37.5% to BNSF and 12.5% to QTS. After
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The court allowed this testimony, not for the truth of the statements in Jamison’s report, but as
relevant to the notice issue between BNSF and QTS.
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reducing Williams’ damages by the percentage of negligence, the jury awarded recoverable
damages in the amount of $1,338,480. The jury also found in favor of QTS on BNSF’s
indemnification claim.
¶ 34 ANALYSIS
¶ 35 BNSF first argues that it is entitled to judgment against QTS for indemnity as a matter of
law because it was not required to give notice until it learned facts showing that Williams’
injury arose out of QTS’s conduct. We disagree with QTS’ argument that BNSF has waived
this issue. BNSF made an oral motion for a directed verdict and argued in its posttrial motion
that the court erred in sending the indemnification claim to the jury when it should have
decided the issue in favor of BNSF as a matter of law. Although the argument section of the
posttrial motion focused on the denial of BNSF’s summary judgment motion on this issue, it
was sufficient to preserve the issue for review.
¶ 36 A directed verdict is appropriate only in those cases where all of the evidence, when
viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that
no contrary verdict could ever stand. Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 88
(quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967)). We review the
denial of a motion for a directed verdict de novo. Lawlor v. North American Corp. of Illinois,
2012 IL 112530, ¶ 37.
¶ 37 As our supreme court has held in the context of insurance policies, notice provisions
impose valid prerequisites to coverage. West American Insurance Co. v. Yorkville National
Bank, 238 Ill. 2d 177, 185 (2010). The timeliness of the notice given is generally a question of
fact, but it may be properly determined as a matter of law where the material facts are not in
dispute. Northbrook Property & Casualty Insurance Co. v. Applied Systems, Inc., 313 Ill. App.
3d 457, 465 (2000). Factors considered in determining whether notice was reasonable include:
(1) the specific language of the policy’s notice provisions; (2) the degree of the insured’s
sophistication in the world of commerce and insurance; (3) the insured’s awareness that an
occurrence as defined under the terms of the policy has taken place; (4) the insured’s diligence
and reasonable care in ascertaining whether policy coverage is available once the awareness
has occurred; and (5) any prejudice to the insurance company. West American, 238 Ill. 2d at
185-86. We believe similar factors are relevant in the context of reasonable notice required in a
contractual indemnification clause.
¶ 38 The indemnification clause in the Agreement provides, in relevant part, that QTS will
indemnify BNSF from and against any and all claims “which shall arise or result from or in any
manner be connected with” an injury to any person “arising directly or indirectly, in whole or
in part, from the actions or omissions of QTS or its employees, unless such injury *** is
proximately caused by the sole negligence of [BNSF].” The indemnification clause contains
the following notice provision:
“In the event any claim or suit is brought against [BNSF] for which [QTS] is
responsible under this Section 5, or in the event any claim or suit is brought against
[BNSF] arising out of work performed, materials furnished, or other activities
conducted under the terms of this Agreement, for which [QTS] is responsible under the
provisions of this Agreement, [BNSF] shall give [QTS] reasonable notice in writing of
the pendency of such claims or suit, and upon receipt of such notice, [QTS] shall
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forthwith assume the defense of such claim or suit, and shall save and hold harmless
[BNSF] from all loss, cost, expense and liability by reason thereof.”
¶ 39 BNSF focuses on the first clause of the notice provision, and contends that because it did
not know that QTS was responsible until Williams testified in his deposition that he was
ordered to work alone by his QTS supervisor, it was under no obligation to provide notice to
QTS before then. But we note that the notice provision not only covers claims for which QTS
is responsible; it also includes claims arising out of work performed or other activities
conducted under the Agreement. Therefore, BNSF was obligated to provide notice to QTS, at
the latest, as soon as it received notice of the attorneys’ lien in December 2003 because
Williams’ claim arose out of work performed while under the supervision of QTS as per the
Agreement.
¶ 40 But even under the first clause of the notice provision relied on by BNSF, the facts show
that BNSF’s notice to QTS was unreasonable. Shortly after the injury, BNSF was aware that
Williams had been working as a crane operator but was injured while performing the duties of
a crane director. BNSF was also aware that Deamon was working as Williams’ crane director
earlier in the shift, but was not with him at the time of his injury. Bell knew that nobody else
was in the area at the time of the injury and, therefore, that Williams was working alone.
BNSF’s own policy provided that crane operators should not work alone. These facts would
have prompted a reasonable person to investigate why Williams was working alone.
Moreover, Williams’ complaint alleged a “lack of adequate manpower,” something that should
also have alerted BNSF to investigate further. Under these circumstances, we can discern no
justification for BNSF’s four-year delay in providing notice to QTS. Thus, BNSF has not
established that its notice was reasonable as a matter of law and the trial court did not err in
denying BNSF’s motion for a directed verdict on the issue of indemnification.
¶ 41 BNSF next argues that the trial court erred in barring evidence that Williams was
scheduled to be terminated at the end of his shift on the date of the injury. As a threshold
matter, we disagree with Williams’ contention that BNSF waived this argument by failing to
make a sufficient and timely offer of proof. Williams argues that BNSF should not have waited
until the end of trial to submit its offer of proof and alleges that BNSF did not call any
witnesses. While the better practice is to make a contemporaneous offer of proof while the
witness is on the stand, there is no set requirement for when an offer of proof must be made,
and BNSF elicited testimony from Williams and referred to deposition testimony that was part
of the record in its offer of proof. This is sufficient to preserve the issue for appeal.
¶ 42 On the merits, BNSF contends that the evidence regarding the termination of Williams’
employment was relevant because Smith’s calculations of lost earning capacity that the jury
relied on in awarding damages did not take into account the fact that Williams no longer
worked for BNSF. BNSF further contends that Williams’ counsel opened the door to this
evidence by raising the issue of discipline and argues that it was prejudiced when it was not
allowed to explain that the reason Williams was not disciplined for the incident is because he
was terminated, not because he had done nothing wrong. Finally, BNSF contends that this
evidence was relevant because it would have established a motive for Williams to fabricate his
injury.
¶ 43 Evidentiary rulings are within the sound discretion of the trial court and will not be
reversed absent an abuse of that discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001). A trial
court abuses its discretion when its decision is fanciful, arbitrary, or unreasonable, or where no
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reasonable person would take the same view. Id. Although a reviewing court may have ruled
differently, the trial court’s evidentiary rulings may not be reversed absent a clear abuse of
discretion. People v. Hall, 195 Ill. 2d 1, 20 (2000).
¶ 44 Relevant evidence is evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable than it would be without the
evidence. People v. Harvey, 211 Ill. 2d 368, 392 (2004). A trial court may reject evidence on
grounds of irrelevancy if it has little probative value due to its remoteness, uncertainty, or
unfair prejudicial nature. Id.¶ 45 BNSF’s first argument for admission of the termination evidence fails because Smith
testified that Williams’ earning capacity would be unchanged, even if BNSF did not exist.
When calculating his lost earning capacity totals, Smith considered salaries earned by crane
operators in the same geographic area. Thus, evidence of Williams’ termination would have
had no impact on the damages award. BNSF’s argument that because Williams was injured
and unable to work he would not have been able to work for a different company is unavailing.
Because Williams was injured and unable to work, he also would not have been able to work
for BNSF, whether or not he had been terminated. The fact of his termination simply had no
relevance to the damages calculation.
¶ 46 Similarly, BNSF’s second argument also fails. BNSF’s argument that Williams opened the
door to this evidence is not adequately developed in its brief. BNSF cites two isolated
questions that were asked of different witnesses and a general proposition from cited authority
and then simply states that, because it was not allowed to introduce Williams’ termination as
the reason for the lack of disciplinary action, this led to an excessive award of damages.
Counsel for Williams asked Schoepp whether he would have disciplined Williams if he had
seen him using the five-iron in a swinging motion. Counsel for Williams also asked Tony
Marquis, an expert witness for QTS, about a rule that provided an employee would be subject
to discipline if the directions of the employer’s designated representative in charge were not
followed.
¶ 47 We will not speculate regarding the correlation between the two questions relating to
discipline and the fact that Williams was terminated, nor do we see how the failure to introduce
evidence of Williams’ termination in response to these questions led to an excessive award of
damages. Counsel for Williams did not argue to the jury that they should not find Williams
contributorily negligent because Williams was not disciplined for swinging the five-iron in an
improper manner. In fact, the jury found Williams contributorily negligent and the damages
award was reduced accordingly, refuting the argument that the damages award was excessive
because the jury thought Williams had done nothing wrong. Even if the two questions cited by
BNSF had opened the door, which we do not believe they did, BNSF has not shown that it was
prejudiced by not being allowed to introduce evidence of Williams’ termination.
¶ 48 BNSF’s third argument in support of evidence of Williams’ termination regarding motive
fails because, as the trial court correctly noted, BNSF did not present any evidence in its offer
of proof that Williams knew he was going to be terminated at the end of his shift. Williams
testified that Schoepp did not tell him that he needed to report to Jamison at the end of his shift.
Moreover, BNSF acknowledged that, although Schoepp would testify, if called, that he
advised Williams that he had to see Jamison before he went home, Schoepp did not know why
the instruction was given. Thus, the trial court did not abuse its discretion in barring evidence
of Williams’ termination.
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¶ 49 BNSF’s final argument is that the trial court erred in allowing the claim for loss of
household services. BNSF first argues that loss of household services is equivalent to loss of
consortium, and because loss of consortium is not recoverable in a FELA claim, Williams’
claim is an attempted “end-run” around this prohibition. However, damages for loss of
household services are allowed in FELA actions. See, e.g., Rachel v. Consolidated R. Corp.,
891 F. Supp. 428 (N.D. Ohio 1995) (allowing a claim for loss of household services after
noting the defendant did not cite any authority for the proposition that loss of household
services are not allowed in FELA actions). Further, the aspect of Williams’ damages claim
seeking compensation for the value of household services he can no longer perform is not, as
BNSF contends, a disguised damages associated with loss of consortium claim. The loss of
household services has nothing to do with Williams’ relationship with his wife and the effect
Williams’ injuries had on that relationship was not the subject of proof at trial.
¶ 50 We also reject BNSF’s argument that Dr. Smith’s testimony regarding the value of the loss
of household services should have been barred because it was based on Williams’ estimate of
the time he spent per week on household services. BNSF relies on Davis v. Rocor
International, 226 F. Supp. 2d 839, 842 (S.D. Miss. 2002) in which the court barred expert
testimony on the value of household services that it said appeared to be based on speculation or
conjecture. However, we note that Smith is an economist, not an occupational therapist, and
could only provide a value for this aspect of Williams’ claim that corresponded to the
information he had been provided by Williams, i.e., what chores Williams typically performed
around the house prior to his injury and what costs are associated with having those services
performed by a third party. The weight and credibility given to Smith’s testimony was a matter
for the jury. BNSF had ample opportunity to cross-examine both Smith and Williams on the
purported value of the loss of household services. Thus, the trial court did not err in allowing
this testimony.
¶ 51 CONCLUSION
¶ 52 We have carefully examined the claimed errors raised by BNSF in this appeal and find that
none of them warrants judgment notwithstanding the verdict (QTS) or a new trial (Williams).
Accordingly, we affirm the judgment of the circuit court of Cook County.
¶ 53 Affirmed.
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