Arthur Chapman Defense Verdict for Canadian Pacific

March 13, 2015

Kim Poole v. Soo Line Railroad Company d/b/a Canadian Pacific was a FELA case tried to a defense verdict on January 15, 2015 in Minneapolis, Hennepin County, Minnesota state court before Judge Susan Burke.  Randal LeNeave of Hunegs, LeNeave & Kvas represented the Plaintiff.  Sally Ferguson and Noelle Schubert of Arthur Chapman in Minneapolis represented Canadian Pacific.
Kim Poole, a signal maintainer, alleged negligence against Canadian Pacific for an incident occurring on May 3, 2012, when a section foreman hit him over the hard hat with a shovel.  At the time of the incident, the section crew was changing out a piece of rail at a busy crossing in Minneapolis.  The track block for completing the work was cut short because of a sudden downpour of rain.  Mr. Poole and the section foreman were arguing about work procedures when the incident occurred.  The section foreman testified that he swung the shovel as a joke, and did not intend to make contact with Mr. Poole’s hard hat.  He apologized to Mr. Poole.  Several witnesses corroborated the section foreman’s testimony that he acted jokingly when he swung the shovel.  Canadian Pacific conducted a formal investigation of the section foreman, and assessed discipline.  Canadian Pacific did not terminate the section foreman because he had no prior history of physical altercations with employees.  
Mr. Poole did not seek medical treatment or complete an injury report until 12 days after the incident.  He continued to work as a signal maintainer for Canadian Pacific for nearly a year, until his treating doctor restricted him from wearing a hard hat.  As a result of the incident, Mr. Poole claimed that he sustained a mild traumatic brain injury and permanent neck injury.  He claimed that he could not return to his job as a signal maintainer for Canadian Pacific because of the permanent hard hat restriction.
Mr. Poole initially alleged direct negligence theories against Canadian Pacific for not providing a reasonably safe place to work, failing to properly plan out the work and for creating a compressed time schedule.   In addition to the direct negligence claims, Mr. Poole also alleged that Canadian Pacific was vicariously liable for the section foreman’s conduct, arguing that under the FELA, Canadian Pacific is liable because the section foreman acted carelessly (not jokingly) with the shovel.   During argument over the jury instructions, however, Plaintiff withdrew the direct negligence claims and pursued the case solely under a theory of vicarious liability.  The judge submitted a jury instruction on the scope of employment under the FELA, specifying that assaults and horseplay are outside the scope of employment.  The special verdict form asked the jury to determine whether the section foreman was acting within the scope of his employment at the time of the incident.  The jury determined that the act of swinging the shovel was horseplay and outside of the scope of employment, so Canadian Pacific was not vicariously liable under the FELA.