My Former colleague, appellate judge Karen King Mitchell, issued an extremely detailed 30-page opinion last fall in the case of Tubbs, et al. v. BNSF Railway Company, WD 80749 (Mo. App. September 4, 2018).  One of the two issues Judge Mitchell addresses is whether or not the plaintiffs could hold on to the jury’s $1,231,000 punitive damages award for the defendant’s negligence.  Joined by judged Ardini, another former colleague, and Hardwick, Judge Mitchell concluded they could do so.

I’ll quote from the opinion to give you a taste of the facts:

            “The Tubbses own and operate a farm in a floodplain near the Missouri River in Holt County, Missouri. The farm is located just southeast of Big Lake and about three-and-a-half miles east of the Missouri River. BNSF, an interstate freight railroad, owns and operates a track that runs east to west across the floodplain and bisects the Tubbses’ farm. The track sits atop an earthen embankment, which was originally built in 1887. The embankment blocked the free flow of occasional floodwaters from the Missouri River. In response to recurrent flooding over the years, BNSF incrementally raised the height of the track and added more ballast (crushed rock) between the embankment and the track to prevent water from spilling over the track and interrupting rail service. But, as the height of the track increased, BNSF did not provide additional drainage capacity (e.g., bridges or culverts) to address the increased volume of dammed water. Record-setting floodwaters from the Missouri River breached the embankment in July 2011 and damaged the Tubbses’ farm…”

Prior to trail, “[T]he Tubbses filed a Second Amended Petition relying on the same factual assertions but consolidating their allegations into a single claim of negligence based on two FRSA regulations—the drainage regulation in 49 C.F.R § 213.33 and the ballast regulation in 49 C.F.R. § 213.103.6”

At trial, “the Tubbses did not pursue their negligence claim based on the ballast rule in § 213.103, but instead proceeded solely on their claim under the drainage rule in § 213.33. The verdict-directing instruction given to the jury paraphrased the language of § 213.33, which states, in full, “[e]ach drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned.”

Over BNSF’s objection, the court also instructed the jury to decide whether punitive damages should be awarded against BNSF.

How could such a claim possibly entitle the plaintiff to punitive damages, let alone sustain such an award of appeal?  Judge Mitchell reasoned, in part, as follows:

Punitive Damages

            “[A]n act or omission, though properly characterized as negligent, may manifest such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted.” Id. (quoting Hoover’s, 700 S.W.2d at 435). “In this context, ‘reckless’ connotes an indifference to whether or not wrong or injury is done.” Oyler v. Hy-Vee, Inc., 539 S.W.3d 742, 746 (Mo. App. W.D. 2017) (quoting Poage v. Crane Co., 523 S.W.3d 496, 516 (Mo. App. E.D. 2017)). Alternatively, there may be conscious negligence tantamount to intentional wrongdoing . . . where the person . . . act[ing] or failing to act must be conscious of his conduct, and, though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury. Blanks, 450 S.W.3d at 401 (quoting Hoover’s, 700 S.W.2d at 435). To begin, the standard for determining whether the plaintiffs made a submissible case for punitive damages applies somewhat differently in the context of the present case where the standard of care is provided by a regulation, the purpose of which is not to prevent the type of injury the plaintiffs claim to have suffered…”

            “In such cases, whether punitive damages can be awarded in a negligence action depends on whether the “defendant knew or had reason to know a high degree of probability existed that the action would result in injury.” Oyler, 539 24 S.W.3d at 746 (quoting Poage, 523 S.W.3d at 515 (emphasis in original omitted)).” 

Tubbs v. BNSF, WD 80749 (September 4, 2018.)

So, if you are representing someone in a negligence case, do not immediately dismiss the prospect of obtaining punitive damages.  Food for thought!