The Nebraska Supreme Court ruled Friday that a Wyoming woman should have her day in court as she accuses Omaha-based Union Pacific Railroad of not doing enough to protect her against mosquito bites, the Omaha (Neb.) World Herald reports.
The high court said Vivika A. Deviney presented enough evidence to bring the case to a jury, and not be simply be dismissed.
Deviney says the railroad failed to adequately warn employees about the danger of West Nile virus in mosquitos and failed to treat standing water that was on or near U.P. properties in Wyoming when she contracted West Nile virus in 2003.
In November last year, a three-judge panel of the Nebraska Court of Appeals, with one judge dissenting, overturned Douglas County District Judge W. Russell Bowie III, who ruled that the lawsuit should be dismissed. Bowie said it was not realistic to expect the railroad to protect employees against mosquito bites. Union Pacific appealed to the State Supreme Court.
An attorney for Deviney said he was pleased with the high court's unanimous decision, which sends the case back to trial.
Union Pacific spokeswoman Donna Kush said she was not prepared to immediately comment on the ruling.
Deviney has not worked since contracting the virus because she continues to suffer severe hearing loss, fatigue, vertigo, reduced vision and weakness in her left side.
Deviney's case falls under the 1908 Federal Employers' Liability Act, or FELA, which requires workers to prove that their railroads were negligent before they can receive compensation for job-related injuries. That is separate from workers' compensation laws, which generally ignore liability and pay injured workers for lost wages and medical expenses.
(This item appeared Aug. 6, 2010, in the Omaha World-Herald.)
The Nebraska Supreme Court has reinstated a lawsuit by a former Union Pacific worker who says the company should have better protected her from contracting the West Nile virus, reports the Associated Press.
Vivika Deviney of Douglas, Wyo., got the disease in 2003 after being bitten by mosquitoes while working along tracks in Wyoming. Her lawyer 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.
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 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.
(The preceding article was published by the Associated Press.)
