Railroad Law Gives Remedy for Mosquito Bites
In an unusual employment law case, a railroad
worker who claims she got West Nile virus from on-the-job mosquito
bites is seeking at least $102,000 in damages from
Union Pacific Railroad Co.
Vivika Deviney is suing under a law
that applies only to railroad employee injuries. Union Pacific, she
alleges, violated the Federal Employers' Liability Act because her
mosquito bites resulted from its failure to provide a reasonably
safe workplace.
The
complaint, filed in Douglas County
(Neb.) District Court, states that Deviney, a conductor, was bitten
while inspecting trains near Bill, Wyo., in August 2003. "[T]he
injuries and damages sustained by Plaintiff were caused by the
negligence of Defendant," it says.
The alleged negligence is not detailed in the suit, but one of
Deviney's lawyers told the Omaha World-Herald that Union
Pacific can be held liable if it knew of a mosquito problem in the
area, such as swampy breeding grounds, and did not remedy it.
A U.S. Supreme Court case -- which
upheld a jury award to a railroad crew foreman who lost both of his
legs after suffering an insect bite -- suggests Deviney has at least
a triable claim.
"[T]he evidence present was sufficient to raise an issue for the
jury's determination as to whether the insect emanated from" a
stagnant, vermin-infested pool near where the foreman had been
working, the court said in
Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108
(1963).
The 3rd U.S. Circuit Court of Appeals,
moreover, reversed summary dismissal of a bee-sting case, finding
that a "jury could reasonably conclude that the defendant's omission
to mitigate [overgrown brush beside railroad tracks] was a breach of
its duty to provide its employees with a reasonably safe place to
work." Pehowic v. Erie Lackawanna Railroad Co., 430 F.2d 697
(1970).
2/5/06