Nebraska Court: West Nile Virus Suit Against Union Pacific Can Continue

November 19, 2009

A Nebraska appeals court has reinstated a lawsuit from a former Union Pacific Railroad worker who claims the company should have better protected her from West Nile virus.

Vivika Deviney contracted the disease in 2003 after being bitten by mosquitoes while working along tracks in Wyoming. She has hearing loss, reduced vision and left-side weakness among other symptoms, said her lawyer, Richard Carlson of Minneapolis.

Deviney’s lawsuit claims the Omaha-based railroad should have done more to control mosquitoes along the tracks. West Nile is transmitted by mosquitoes that have bitten infected birds. It can cause flulike symptoms and serious illness in some people.

The Nebraska Court of Appeals said Nov. 17 that a lower court judge wrongly dismissed Deviney’s complaint last year and the case should have gone to a jury.

Carlson said the decision showed the lower court “got the law wrong.”

The railroad’s attorneys didn’t immediately return a call for comment. Company spokesman Mark Davis said attorneys are reviewing the opinion and considering their options.

Deviney, who lives in Douglas, Wyo., said she was bitten by multiple mosquitoes when she got off a train to inspect a passing train while en route from Bill, Wyo., to coal mines near Gillette, Wyo. She said she was wearing long pants, a sweater and insect repellant but was overwhelmed by swarms of the insects.

“You couldn’t stand still because the mosquito(e)s were so bad. I had to … walk and watch the train as it went by and wave my arms,” she said in court documents.

She developed headaches, diarrhea and vomiting within a week and soon after was diagnosed with West Nile virus.

Her lawsuit claims Union Pacific Railroad Co. violated the Federal Employers’ Liability Act. The law makes railroads liable for injuries employees suffer on the job because of the companies’ negligence. Railroads must take reasonable steps to ensure their employees are safe.

In dismissing the lawsuit, a Douglas County district judge said Union Pacific tried to kill mosquito larvae and warn its employees of the risks posed by the virus. There was no way the company could reasonably foresee or prevent Deviney’s injuries, the judge said.

Deviney appealed.

A Union Pacific employee responsible for controlling mosquitoes on the company’s property said he couldn’t remember if he treated an evaporation pond near the train yard office in Bill in 2003, according to court documents.

“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 on behalf of the three-judge panel that heard the case.

Judge William Cassel submitted a dissenting opinion, saying the railroad didn’t owe Deviney protection from being bitten by mosquitoes.

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

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