ZAPP (LARRY) VS. CSX TRANSPORTATION, INC.
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RENDERED: SEPTEMBER 25, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001362-MR
LARRY ZAPP
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NO. 03-CI-011014
CSX TRANSPORTATION, INC.
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Larry Zapp brings this appeal from a June 18, 2008, Order of
the Jefferson Circuit Court which granted a motion for directed verdict by CSX
Transportation, Inc. (CSX) and dismissed Zapp’s claim under the Federal
Employers’ Liability Act as barred by the statute of limitations.1 We reverse and
remand.
1
Federal Employers’ Liability Act is codified at 45 U.S.C. §§ 51-60 (2006).
Zapp is a gentleman in his early seventies who had worked for various
railroads for over thirty years. He retired from a position with CSX in December
2000. More than two years later, in 2003, Zapp was diagnosed with bilateral
carpel tunnel syndrome.
On December 18, 2003, Zapp filed a complaint against CSX in the
Jefferson Circuit Court. He alleged that CSX failed to provide a “reasonably safe
place to work” in violation of the Federal Employers’ Liability Act (FELA), thus
causing him to suffer a work-related injury, bilateral carpel tunnel syndrome.2 A
jury trial ensued. After the close of Zapp’s evidence, CSX moved for a directed
verdict based upon the three-year statute of limitations set forth in FELA. In a
June 18, 2008, order, the circuit court granted CSX’s motion for directed verdict.
The court concluded that Zapp’s FELA claim was untimely filed and dismissed the
action. This appeal follows.
Zapp contends that the circuit court erred by rendering a directed
verdict dismissing his FELA claim based upon the statute of limitations. For the
reasons hereinafter elucidated, we agree.
A directed verdict is proper if a reasonable person could only
conclude that movant was entitled to a verdict.3 Kentucky Rules of Civil
Procedure 50.01; Lee v. Tucker, 365 S.W.2d 849 (Ky. 1963). When reviewing a
2
Federal and state courts have concurrent jurisdiction over claims arising under the Federal
Employers’ Liability Act, 45 U.S.C. § 56 (2006).
3
We point out that a directed verdict is a procedural device, thus mandating use of the Kentucky
Rules of Civil Procedure.
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motion for directed verdict, the court must view the evidence and all reasonable
inferences therefrom in a light most favorable to the nonmoving party. Id.
In our case, the circuit court granted a directed verdict to CSX after
concluding that Zapp’s FELA claim was untimely filed. FELA provides for a
three-year statute of limitations – “[n]o action shall be maintained . . . unless
commenced within three years from the day the cause of action accrued.” 45
U.S.C. § 56 (2006). A cause of action under FELA is said to accrue “when a
plaintiff knows or, in the exercise of reasonable diligence, should know of both the
injury and its cause.” Lipsteuer v. CSX Transp., Inc., 37 S.W.3d 732, 737 (Ky.
2000)(citing United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d
259 (1979); Aparicio v. Norfolk & Western Ry., 84 F. 3d 803 (6th Cir. 1996); Fries
v. Chicago & Northwestern Transp. Co., 909 F.2d 1092 (7th Cir. 1990)); see also,
Heizer v. Cincinnati, New Orleans and Pacific Ry. Co., 172 S.W.3d 796 (Ky.App.
2004). Thus, under FELA, the three-year statute of limitations is triggered or the
cause of action accrues when a claimant knows or reasonably should have known
of both the injury and its cause. And, the issue of when the statute of limitations is
triggered or the cause accrues normally presents a question of fact for the jury.
Lipsteuer, 37 S.W.3d 732. Once this question of fact is determined (the accrual
date), the ultimate issue of whether the action was timely filed then becomes a
question of law for the court. Id.
In the case sub judice, the circuit court rendered a directed verdict
after concluding that Zapp’s testimony at trial constituted a judicial admission.
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Zapp’s testimony was particularly outlined by the circuit court in its June 18, 2008,
order:
[CSX Counsel]:
your
that was
work when
correct?
When you first began to notice
problems with your hands and
numbness and your tingling
something you noticed at
you gripped the throttle,
[Zapp]:
The brakes and the throttle.
[CSX Counsel]:
Brakes and throttle would cause you
numbness and tingling at work,
correct?
[Zapp]:
Occasionally.
[CSX Counsel]:
And that was probably back in 1997,
correct?
[Zapp]:
Yes, sir.
[CSX Counsel]:
And it got worse as time moved
along, correct?
[Zapp]:
Yes, sir.
[CSX Counsel]:
And by 1999 when you were working
for CSX it had become
hadn’t it?
constant,
[Zapp]:
It became constant to where
(inaudible).
[CSX Counsel]:
that
gripped
throttle became
In 1999 when you were working with
CSX the numbness and tingling
you would notice when you
the brakes and the
constant, correct?
[Zapp]:
Yes, sir.
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[CSX Counsel]:
It did? Become constant?
[Zapp]:
Yes.
[CSX Counsel]:
And that numbness and tingling was
made worse by doing things at
like gripping the brakes and the
throttle, correct?
work
[Zapp]:
Yes, sir.
[CSX Counsel]:
tingling –
your work at the
So you knew in 1999 that you had
problems – numbness and
being made worse by
railroad, correct?
[Zapp]:
Yes, sir.
(Re-direct by [Zapp’s] counsel . . . )
[Zapp Counsel]: Mr. Zapp, as far as the dates that were
discussed up there, you’re giving us
your best shot but you didn’t
study up
for a test on dates today, did
you?
[Zapp]:
At my age, you can’t remember.
[Zapp Counsel]:
Okay, so these are all approximations
on your part as far as whether
1997 or 1999 and that sort of
it’s
thing?
[Zapp]:
Yes.
[Zapp Counsel]:
How certain are you of this 1997
date?
[Zapp]:
I’m not certain on any of the dates.
[Zapp Counsel]:
Okay. How certain are you that your
symptoms became more
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problematic
at CSX?
[Zapp]:
witness
[Zapp Counsel]:
after you started working
I went out and bought these.
(Indicating wrist braces on
stand.)
you had
tunnel
Had you at that point . . . . In 1999
and 2000 did you know that
an injury called carpal
syndrome?
[Zapp]:
I didn’t know what carpel tunnel was.
[Zapp Counsel]:
And when was the first time that you
learned you had carpel tunnel
syndrome?
[Zapp]:
St.
[Zapp Counsel]:
That I had carpel tunnel syndrome is
when I went to that doctor in
Louis.
Is that Dr. Hanaway?
[Zapp]:
Yes, sir.
[Zapp Counsel]:
And did you see him in 2003?
[Zapp]:
I believe that was the date.
[Zapp Counsel]:
Okay
(Re-cross by [CSX])
[CSX Counsel]:
Mr. Zapp, I’m not trying to hold you
to exact dates either. That’s
why I
said the whole year 1999 and I
think
you just answered [Zapp’s
Counsel]
question. The reason
you went out
and bought these
things in 1999 when
you were
working for CSX – when
you
went to work for CSX in 1999 –
was because the gripping of the
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throttle and the repetitive work at
CSX was making your hands hurt and
giving you numbness and tingling,
correct?
[Zapp]:
Right.
[CSX Counsel]:
CSX,
And we’re not working on an exact
date but that was in 1999 with
correct?
[Zapp]:
When I got the constant . . . .
[CSX Counsel]:
Yes, sir.
[Zapp]:
Yes, sir.
[CSX Counsel]:
[Zapp]:
When you began to have constant
problems.
Yes, sir.
[CSX Counsel]:
That was in 1999.
[Zapp]:
Yes, sir.
From Zapp’s above testimony, the circuit court concluded that Zapp
“knew, at least as early as 1999, that he had hand problems that were brought about
at work” and that “this testimony . . . [constituted] a judicial admission.” Relying
upon Zapp’s testimony and, more particularly, the “judicial admission,” the circuit
court then found that Zapp “knew or should have known by 1999 that he had a
potential work-related claim.” As Zapp filed his FELA claim on December 18,
2003, the circuit court concluded that Zapp’s claim was filed outside the three-year
statute of limitations period. After reviewing the videotaped trial proceedings and
the June 18, 2008, order, we believe the circuit court erred by deeming Zapp’s
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testimony a judicial admission and by usurping the prerogative of the jury to
decide a disputed issue of fact – when the statute of limitations was triggered.
A judicial admission is a formal statement concerning a disputed fact,
made by a party during a judicial proceeding, that is adverse to that party, and that
is deliberate, clear, and uncontradicted. Sutherland v. Davis, 286 Ky. 743, 151
S.W.2d 1021 (1941); Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d 440
(Ky.App. 2006); see also 32A C.J.S. Evidence § 1649 (2009). A judicial
admission is conclusive as to that fact and has the effect of removing the fact from
“the field of [a] disputed [factual] issue.” Sutherland, 151 S.W.2d at 1024. As a
consequence, the judge is required “to direct the jury to accept the [judicial]
admission as conclusive of the disputed fact.” Id. This concept is more thoroughly
explained as follows:
A party is bound and concluded by his or her own
uncontradicted testimony, whether elicited on direct or
cross-examination. Ordinarily, uncontradicted testimony
remains subject to the scrutiny of the trier of fact as to its
credibility and may be rejected by them where it is not
believed. However, this rule does not apply to
uncontradicted testimony by a party adverse to his or her
interest; his or her adversary is entitled to hold the
testifying party to the testimony given and to demand a
verdict or finding accordingly as a matter of law.
(Footnotes omitted.)
32A C.J.S. Evidence § 1651 (2009). We review de novo a circuit court’s decision
upon a judicial admission. See Sutherland, 151 S.W.2d 1021; Reece, 188 S.W.3d
440.
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In this case, Zapp’s testimony did not constitute a judicial admission
upon the disputed factual issue of when the statute of limitations was triggered
under FELA. According to Zapp’s testimony, he experienced numbness and
tingling in his hands while gripping the brake and throttle, and he also testified that
these work activities caused his symptoms to worsen as early as 1999.
Thus, in 1999, it may be stated that Zapp knew or should have known
that he suffered from a hand injury. However, FELA’s three-year statute of
limitations is only triggered when the claimant knows or reasonably should have
known not only of an injury by also of its cause. Zapp never testified that he knew
that work was the cause of his hand injury in 1999. In fact, it was Zapp’s clear
testimony that he did not know the cause of his hand injury in 1999.
Despite Zapp’s clear testimony, the circuit court found that Zapp
“knew or should have known by 1999 that he had a potential work-related claim.”
From Zapp’s testimony that his hand symptoms worsened while working in 1999,
the circuit court erroneously inferred that Zapp knew or should have known that
his hand injury was caused by work duties in 1999. However, the circuit court was
bound to resolve all inferences from the evidence in a light most favorable to the
nonmoving party (or Zapp) before rendering a directed verdict. A reasonable juror
may well have inferred from the evidence that Zapp did not know or should not
have known of the work-related cause of his hand injury in 1999.
In sum, the circuit court impermissibly invaded the province of the
jury to decide a disputed factual issue – when Zapp knew or should have known of
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the work-related cause of his hand injury. Accordingly, we are of the opinion that
the circuit court improperly dismissed Zapp’s FELA claim by rendering a directed
verdict.
For the foregoing reasons, the Order of the Jefferson Circuit Court is
reversed and this case is remanded for proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Derek Humfleet
Lexington, Kentucky
Linsey W. West
Kara M. Stewart
Lexington, Kentucky
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