| Supreme Court Upholds Award
By David Robinson
Arkansas News Bureau drobinson@arkansasnews.com
LITTLE ROCK — The Arkansas Supreme Court upheld a record $25 million jury award to a Wynne man injured at a Union Pacific Railroad crossing.
The amount is the highest punitive damage award approved by the Supreme Court, which concluded that the railroad company had acted with “a high degree of reprehensibility.”
Chris Barber, 38, and his wife, Claudette, 35, brought the suit after Chris Barber was injured in 1998 while riding in a Browning-Ferris garbage truck that was crossing railroad tracks in St. Francis County. The truck’s driver was killed.
Claudette Barber said she’s thankful the Supreme Court is holding Union Pacific accountable.
“It’s not the money; it’s the fact that the railroad is actually now being forced to change their policy,” said Barber, who added that her husband can walk with a cane but still suffers from head, spinal cord and lung injuries. “God’s hand was there, and we know it.”
The Barbers alleged that overgrown vegetation made the crossing unsafe, that the railroad company knew of the danger from a variety of sources, including its own employees, and destroyed evidence after the 1998 accident.
Besides the $25 million in punitive damages, a St. Francis jury in 2002 awarded compensatory damages of $5 million to Chris Barber and $100,000 to his wife.
In the 5-2 decision, the Supreme Court concluded that the jury’s penalty was reasonable given the evidence and Union Pacific’s $9.5 billion net worth.
Associate Justice Annabelle Clinton Imber wrote for the majority: “... Union Pacific likely knew or ought to have known, in light of the surrounding circumstances, that allowing the vegetation to remain overgrown and allowing trains to pass through Crossing 123 at close to 60 mph would naturally or probably result in injury, and that Union Pacific continued such conduct in reckless disregard of the consequences from which malice could be inferred.” The 43-page decision also states that evidence showed that visibility was impaired so that “drivers had to inch forward to a point where their vehicles were almost touching the track in order to get a clear view down the track. Moreover, by the time a person was able to adequately check the track for trains, he or she was in the zone of danger.”
Testimony came from drivers who had experienced near-misses with trains at the crossing, railroad track maintenance workers who feared for their own safety and Palestine Mayor Willetta Carroll. Carroll named three Union Pacific officials she said she spoke with in 1997 about the overgrown and unsafe crossing.
The Supreme Court also said evidence showed that Union Pacific attempted to conceal or destroyed voice tapes and “slow orders” for trains on that section of track.
“Taken together under all the circumstances, including that Union Pacific intentionally destroyed unfavorable evidence, we conclude that an award of punitive damages was appropriate in this case,” Imber writes.
In a dissent, Associate Justice Ray Thornton, joined by Chief Justice Betty Dickey, said the $25 million is excessive.
Thornton recalled that the Supreme Court had reduced a $63 million punitive damages award in a nursing home abuse case to $21 million. That was in 2001 and stemmed from the death of an elderly woman in a Mena nursing home.
Prior to that case, Thornton said, the highest punitive damages award affirmed by the Supreme Court was $3 million in 1982.
“The facts in this case reflect a non-fatal injury to (Barber),” Thornton wrote.
He also noted that Union Pacific had entered into a contract to clear the vegetation four months prior to the accident, “thereby demonstrating a lack of malice.”
The majority opinion states that, while a contract had been entered, the company “did not allot money for the contract.”
Michael Easley, an attorney for the Barbers, said Union Pacific’s only options are to ask the state Supreme Court to reverse itself and to appeal to the U.S. Supreme Court. Such appeals, he said, are rarely taken up by the Supreme Court.
Mark Davis, a Union Pacific spokesman, said company attorneys are reviewing the ruling and had no comment. | 
