Railroad argues FELA complaint should be dismissed for defects

Steve Gonzalez Nov. 21, 2008, 4:30am

Norfolk Southern Railway Company is asking a judge to dismiss a Federal Employers' Liability Act (FELA) claim pursuant to Section 2-615 of the Illinois Code of Civil Procedure.

In a Nov. 6 motion, Norfolk argues that a suit filed by Anthony Cavalier should be dismissed because it is uncertain what claims are being asserted against which defendant or defendants.

Norfolk argues Cavalier's two-count complaint sets forth causes of actions against "what appears to be some type of joint claim against all defendants named in the caption."

Cavalier filed suit on Oct. 2 against Norfolk and Consolidated Rail Corporation alleging he suffered ear damage because the companies failed to provide adequate equipment in violation of FELA.

Cavalier worked for Norfolk Southern Railway Company and Conrail for several years beginning in June 1969.

Norfolk argues that the Illinois Code of Civil Procedure requires that each cause of action shall be separately designated and numbered and if it is not done correctly, a 2-615 motion to dismiss may be filed when the pleading contains defects such as failing to assert a separate cause of action.

In addition, Norfolk also filed a motion to strike paragraph 14 of the complaint. That paragraph deals with allegations of "willful, wanton and in reckless disregard of the safety of Plaintiff."

Norfolk argues allegations relating to willful and wanton conduct are not allowed under the FELA.

Citing a 1971 Sixth Circuit opinion in Kozar v. Chesapeake & O. Ry. Co.,, Norfolk argues damages sought in FELA cases "are solely compensatory in nature, and punitive damages are not recoverable."

Norfolk also argues Cavalier failed to comport with the proper procedures under Illinois law to assert punitive damages.

Norfolk is represented by Kurt Reitz of Thompson Coburn in Belleville.

Cavalier's complaint alleges throughout the course of his employment, he suffered injuries to his ears, inner ears, nerve endings in the head, tympanic membrane, eardrums and the tissues of the inner ears.

He also claims the defendants were negligent by intimidating employees from using hearing protection or seeking medical determination of hearing levels, failed to take steps to reduce excessive noises, delayed following a consultant's regulations, failed to form a system hearing loss prevention program, failed to conduct decibel testing, failed to reduce noise levels and by requiring employees to work in G.E. engines that caused excessive noise.

Cavalier is represented by Ryan Furniss of Holland, Groves, Schneller & Stolze of St. Louis. He is seeking damages in excess of $100,000.

The case is currently assigned to Circuit Judge Nicholas Byron, however he will be retiring on Nov. 30.

His cases will automatically pass to Circuit Judge-elect Dennis Ruth, who will set a hearing date for sometime after Dec. 1.

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