BNSF Railway Beats Wrongful Death Claim.

On October 19, 2007, an employee of BNSF Railway was driving a vehicle during the course of his employment which collided with a vehicle driven by Kenneth Lough. Lough died 22 months later, on August 11, 2009, and the executor of his estate brought a wrongful death lawsuit against BNSF.

Lough’s death certificate listed the cause of death as congestive heart failure, with an onset of two months, secondary to chronic obstructive pulmonary disease (COPD). Kenneth was first treated for COPD in 1979. The trial court granted the defendants’ joint motion for summary judgment because plaintiff failed to present sufficient evidence that the car crash caused Kenneth’s death. Plaintiff appealed to the Illinois Appellate Court for the Third District.

The plaintiff asserted that the car crash may have aggravated the plaintiff’s COPD or brought “a dormant disease or condition into activity,” resulting in death. But the plaintiff did not present any expert testimony to support that assertion. Therefore, the appellate court affirmed the decision of the trial court.

To state a cause of action under the Wrongful Death Act (the Act), a plaintiff must show that: (1) defendant owed a duty to the deceased; (2) defendant breached the duty; (3) the breach proximately caused the decedent’s death; and (4) monetary damages resulted to persons designated under the Act. Proximate cause requires the plaintiff to prove that the defendant’s negligence “more probably than not” caused plaintiff’s death. The appellate court found that liability cannot be premised merely upon surmise or conjecture as to the cause of the death.

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