View this article online: https://www.claimsjournal.com/news/midwest/2010/08/09/112292.htm
The Nebraska Supreme Court has reinstated a lawsuit by a former Union Pacific Railroad worker who says the company should have better protected her from contracting the West Nile virus.
Vivika Deviney got the disease in 2003 after being bitten by mosquitoes while working along tracks in Wyoming. Her lawyer, Richard Carlson of Minneapolis, said Deviney experienced hearing loss, reduced vision and left-side weakness, among other symptoms.
Deviney’s lawsuit argues 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 lawsuit also says the railroad violated the Federal Employers’ Liability Act, which makes railroads liable for injuries employees suffer on the job because of a company’s negligence.
In a ruling issued Aug. 5, the high court affirmed a Nebraska Appeals Court ruling that last year found a lower court judge wrongly dismissed Deviney’s complaint and that the case should have gone to a jury. The Douglas County district judge had ruled that Union Pacific tried to kill mosquito larvae and warn its employees of the risks posed by the virus but that there was no way the company could have reasonably foreseen or prevented Deviney’s injuries.
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.
Carlson, Deviney’s attorney, said his client looks forward to bringing the case to trial.
“The opinion is based on followed law, so we’re just very happy with the court’s decision,” Carlson said.
A message seeking comment was left for the attorneys for Union Pacific by The Associated Press.