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Railroad not at fault for not protecting worker from West Nile virus


A Texas railroad worker who claims he was bitten by a mosquito carrying West Nile virus while performing his job can't hold the railroad liable for not protecting him, said a divided Texas Supreme Court.

The high court on Friday ruled 5-1 to reverse a Texas Court of Appeals decision that the Union Pacific Railroad Co. had failed to provide a safe workplace under the Federal Employers Liability Act, which protects and compensates railroad workers injured on the job.

Alleging that he contracted West Nile and encephalitis on the job in 2008, William R. Nami sued Union Pacific under FELA for failing to provide a safe workplace. Mr. Nami testified during a jury trial in August 2012 in DeWitt County, Texas, court that, had he known about the threat of West Nile, he would have worn long sleeves and bug spray while working outside, court records show. He also testified that he rarely spent time outdoors when he was away from work.

The jury found both Union Pacific and Mr. Nami negligent, apportioning 80% of the responsibility to Union Pacific and 20% to Mr. Nami, with damages totaling $752,000 against the railroad, according to records. The verdict was affirmed by Texas' 13th District Court of Appeals in Edinburg in August 2014.

The Texas high court found the railroad company not negligent based on the “ferae naturae” doctrine, which frees property owners of liability due to harm caused by native animals that are on their property, and mosquitoes, indigenous to the state of Texas, are prevalent in South Texas, where Mr. Nami worked.

“Union Pacific did nothing to attract mosquitoes, indigenous to Brazoria County and all South Texas, to its small right-of-way, and it could do nothing to keep them out,” the Supreme Court said in its ruling.

In a dissenting opinion, Texas Supreme Court's Justice Phil Johnson said that he would have preferred to use “the comparative negligence balancing entrusted to the jury,” which is allowed under FELA. Instead, he said, the court “completely negated Union Pacific's duty to use reasonable care to provide a safe workplace.”

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