Carter v. BNSF Railway Co., No. 2 CA-CV 2025-0286 (App. Div. II, November 3, 2026) (J. O'Neil) https://www.appeals2.az.gov/serveFile.php?type=DE&file=CV20250286Memo.pdf

WHERE DEFENSE OF ASSUMPTION OF THE RISK IS BARRED IN FELA ACTION, DEFENSE OF CONTRIBUTORY NEGLIGENCE MAY STILL PREVAIL/RULE 68 OFFER OF JUDGMENT SANCTIONS ARE SUBSTANTIVE AND NOT PROCEDURAL AND THEREFORE NOT RECOVERABLE IN AN FELA CLAIM

Plaintiff sued his employer BNSF Railway Company [BNSF] under the Federal Employers' Liability Act [FELA] for a knee injury sustained when he slipped and fell while walking through oil on a catwalk trying to get to locomotives that needed to be moved and serviced. He testified he could not reach the locomotives without walking through the oil which he did five times. BNSF presented evidence that he could have performed his work by taking a staircase to avoid the oil. A jury returned a defense verdict after a seven-day trial in Maricopa County Superior court. BNSF's motion for Rule 68 (g) sanctions was denied. Plaintiff appeals alleging BNSF improperly pursued an assumption of risk defense and based upon various evidentiary issues. Defendant appealed the denial of the Rule 68 sanctions. The Arizona Court of Appeals affirmed.

The defense of assumption of the risk is not available in FELA cases. However, contributory negligence is a viable defense and the evidence in this case supports the jury's verdict based upon this defense.

Plaintiff objected to the BNSF showing the jury a time stamped video where the times on the video would be important in establishing when plaintiff reported the spilled oil to his employer. He claimed he had only been provided this video before trial without time stamps. BNSF established they had in fact sent him the time stamped version 5 years earlier. Plaintiff was permitted to dispute the accuracy of the time stamps in his examination of several witnesses.  The court of appeals rejected plaintiff's argument that the time stamped video should not have been shown to the jury.

Plaintiff next claimed error when the trial court allowed his supervisor to testify that he had instigated an investigation of the legitimacy of plaintiff's injury when he received an anonymous letter stating plaintiff was not injured at work but rather was injured at a trampoline park. Following cross-examination of the IME doctor by plaintiff about the letter, the trial court admitted the letter. BNSF presented significant evidence to support a finding it was a trampoline injury and not work related, including plaintiff admitting he visited a trampoline park 3 days before his claimed work injury and that shortly after arriving he texted his mother asking for information regarding an orthopedic surgeon who performed prior surgery on the knee in question and then phoned that surgeon's office. Because there was substantial evidence to support the conclusion this was a trampoline injury and not work related and the fact the anonymous letter played a “limited” role in establishing that defense, any harm in admitting the letter, even if it was hearsay, was harmless.

Next, plaintiff argued it was prejudicial error for the court to admit evidence of his prior disciplinary history at work. BNSF argued the evidence established a motive for plaintiff to fake the knee injury and the court agreed allowing admission of evidence that plaintiff was on probation and subject to potential termination at the time of the claimed injury but precluding evidence of the reason for the probation.   Despite this ruling BNSF elicited testimony from the superintendent of operations that plaintiff was on probation for a “serious rule violation that could cause injury and damage to equipment. “ When this testimony was elicited the trial court intervened and stated the testimony “had begun to reach beyond the scope of the question.”  The trial court has “inherent authority over the enforcement of its own rulings” which this intervention accomplished, not to mention the fact the evidence was probative of a claimed motive for plaintiff to fabricate the work injury.

It was also permissible for BNSF to ask plaintiff on examination if he had perjured himself in Mohave County Superior court, where even though plaintiff testified “no” to the question he later admitted to the court the Mohave court had made such a finding.

Finally, the court of appeals rejected BNSF's cross-appeal finding that FELA claims must apply federal substantive law. “We conclude Rule 68 sanctions are ‘too substantial a part of a [party's] potential liability' to be classified as a procedural rule.” Hence, the trial court properly ruled that the Rule 68 sanctions were not permitted in this FELA action.