Fashauer v. NJ Trans Rail ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
6-29-1995
Fashauer v NJ Trans Rail
Precedential or Non-Precedential:
Docket 94-5523
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Recommended Citation
"Fashauer v NJ Trans Rail" (1995). 1995 Decisions. Paper 179.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/179
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-5523
THOMAS FASHAUER, JR.
Appellant
v.
NEW JERSEY TRANSIT RAIL OPERATIONS, INC.
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 92-cv-3459)
Argued May 23, 1995
BEFORE: GREENBERG, ROTH and ALDISERT, Circuit Judges
(Filed: June 29, 1995)
Marvin I. Barish (argued)
Marvin I. Barish Law Offices
Sixth & Walnut Streets
The Curtis Center, Suite 801
Philadelphia, PA 19106
Attorneys for Appellant
Cheryl A. Maccaroni (argued)
Deputy Attorney General
Joanne Stipick (argued)
Deputy Attorney General
Office of Attorney General of
New Jersey
Richard J. Hughes Justice
Complex
Trenton, NJ 08625
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. Introduction, Factual Background and Procedural History
This appeal arises in a Federal Employers' Liability
Act (FELA) case in which the employer is New Jersey Transit Rail
Operations, Inc. To understand the germane facts one must in the
first instance know a bit about New Jersey Transit train design.
On New Jersey Transit trains, or at least on the one involved
here, cars are connected to each other by vestibules, which are
enclosed areas located just outside the passenger seating
compartments of each car. Thus, each car contains two
vestibules, one at each end. Each vestibule, in turn, contains
three doors -- one leading into the passenger compartment, the
other two leading out of the train onto the station platform.1
Railroad employees and passengers walk through the vestibules to
pass from one car to the next, and to exit from the car to the
platform and vice versa. While anyone may open the doors leading
into the passenger compartments, railroad employees open and
close the doors to the station platform by operating mechanisms
located within the vestibule.
On March 10, 1992, appellant Thomas Fashauer was
performing his usual duties as brakeman on a New Jersey Transit
1
. Of course, depending on which side of the platform the train
arrives, one of the two side doors opens.
train en route from Lindenwold, New Jersey, to Atlantic City, New
Jersey. These duties included entering the vestibule, opening
and closing the doors leading from the train to the station
platform, and signaling the engineer that the platform was clear
and that the train could depart. He began work in Atlantic City
at 1:00 p.m. and made several round trips.
It was raining heavily, and the rug on the vestibule
floor was soaked when the train arrived at the Atco station on
the last run of the day. Fashauer opened the doors, exited the
train, and, after checking the stairs for passengers running
late, returned to the train and signaled the engineer to leave.
Fashauer then shut the doors. The train jerked twice, once upon
leaving the station and once soon after. Fashauer was not
holding on to the handrails at the time, and he slipped on the
wet floor, striking his left shoulder against the wall. He
testified that he was in agony at the time, and he immediately
reported the incident to the conductor. At the conductor's
behest, Fashauer rested for the remainder of the trip. He
suffered serious injuries to his shoulder as a result of the
accident.
On August 21, 1992, Fashauer filed a complaint against
New Jersey Transit in the United States District Court for the
District of New Jersey, alleging that his injury was proximately
caused by New Jersey Transit's negligence. Specifically, the
complaint charged New Jersey Transit with negligently maintaining
certain seals between the cars, and further alleged that the
defective seals allowed rain to seep into the vestibule, creating
a dangerous slippery condition on a rainy day. He sought relief
pursuant to the FELA, which governs actions by railroad employees
against railroads for damages arising out of job-related
injuries.
The case was tried between March 7, 1994, and March 16,
1994. New Jersey Transit defended against Fashauer's claims by
presenting evidence that the seals were not defective, the
slippery condition was purely the result of the rainy weather,
and Fashauer failed to act with due care while walking through
the vestibule. On March 16, the jury returned a verdict finding
that New Jersey Transit was negligent and that its negligence
contributed to the injuries. It awarded Fashauer damages of
$71,320 in past lost earnings and $100,000 for pain and
suffering. However, the jury awarded nothing for future lost
earnings. Finally, the jury determined that Fashauer was 50%
responsible for his injuries. Under FELA's pure comparative
negligence provisions, this finding meant that the district court
reduced Fashauer's damages by 50%. Unhappy with the 50%
reduction and the jury's refusal to award damages for lost future
earnings, Fashauer moved for a new trial. When that motion was
denied on July 18, 1994 (in an Opinion and Order filed the next
day), he timely filed this appeal.
The district court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. §
1291. We will affirm.
II. Discussion
Most of the questions on this appeal involve the
district court's denial of Fashauer's jury charge requests.
Generally, "[t]he standard of review for the district court's
ruling on points for charge is . . . abuse of discretion." Link
v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 922 (3d
Cir. 1986). Where, as here, a party contends that the charge as
given states an incorrect legal standard, "we will review the
charge as a whole in the light of the evidence to determine if it
fairly and adequately submitted the issues to the jury and we
will reverse if the instructions were capable of confusing and
thereby misleading the jury." Griffiths v. CIGNA Corp., 988 F.2d
457, 462 (3d Cir.) (citing Limbach Co. v. Sheet Metal Workers
Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 1991) (in banc)),
cert. denied, ____ U.S. ____, 114 S.Ct. 186 (1993). We address
Fashauer's arguments in turn.
A. Assumption of Risk v. Contributory Negligence
The most significant question raised on this appeal is
whether the district court erred by denying Fashauer's request to
charge the jury that assumption of the risk is not a defense in a
FELA action. Fashauer timely requested such a charge,2 and
objected to the district court's charge, which declined to give
2
. At oral argument before us, a question was raised about
whether Fashauer adequately raised the issue before the district
court. Fashauer proposed the following points for charge:
The railroad cannot avoid liability for
personal injury on the grounds that the
injured party assumed the risk of his
employment. Assumption of risk is not a
defense in a suit by a railroad worker
against a railroad, and the railroad worker
does not assume the risk of being injured
through the negligence of his employer or the
negligence of a fellow employee.
You may not find contributory negligence on
the part of the plaintiff simply because he
acceded to the request or direction of a
supervisor that he work at a dangerous job,
in a dangerous place, or under unsafe
conditions.
The defendant has the burden of proving by a
preponderance of the evidence, contributory
negligence. The plaintiff does not assume
the risk of an unsafe place to work and
cannot be blamed for working in an unsafe
place.
It is the duty of a railroad worker to do the
work assigned. It is not his duty to find
the safest method of doing it, or to devise a
safe[r] method. Therefore, in considering
the defendant's claim that the plaintiff was
guilty of contributory negligence, the jury
will bear in mind that the plaintiff is not
chargeable with any negl[igent] conduct of
his employer. The plaintiff is only
chargeable with his own conduct. So in
connection with the defendant's claim of
contributory negligence, you will consider
only what the plaintiff himself did, or
failed to do, at the time and place in
question as shown by a preponderance of the
it. Fashauer essentially contends that the district court's
instructions inadvertently permitted the jury to reduce his
recovery based on the fact that he continued to perform his job
despite his knowledge that he was encountering a dangerous
condition. He further contends that under the FELA the jury
should not have been allowed to reduce his recovery because he
assumed the risk of injury.
1. Introduction
Congress passed the Federal Employers' Liability Act of
1906 in part to eliminate barriers common law courts erected to
protect railroad companies and other common carriers from
liability for their employees' workplace injuries. See Tiller v.
Atlantic Coast Line R. Co., 318 U.S. 54, 58-59, 63 S.Ct. 444, 447
(1943). The FELA "substituted comparative negligence for the
strict rule of contributory negligence," id. at 62, 63 S.Ct. at
(..continued)
evidence in the case. Thus, plaintiff cannot
be found contributorily negligent based
solely on his knowledge or acceptance of a
dangerous situation or based on the fact that
he was working at a dangerous job. Rather,
you may find the plaintiff contributor[ily]
negligent only if the defendant has proved by
a preponderance of the evidence that
plaintiff did not exercise slight care for
his own protection.
Quoted in Fashauer's brief at 11-12 n.1. Although Fashauer's
proposed instructions do not actually define assumption of the
risk, we believe they adequately conveyed his view that the jury
should not have been permitted to reduce his recovery based on
actions that constitute assumption of the risk.
448-49, but, as interpreted by the Supreme Court, originally
allowed an employer to interpose assumption of the risk as a
complete defense to the employer's liability. See Seaboard Air
Line Ry. v. Horton, 233 U.S. 492, 503, 34 S.Ct. 635, 639 (1915).
The only statutory exception to this occurred "in . . . case[s]
where the violation by [a] common carrier of [a] statute enacted
for the safety of employees contributed to the injury of such
employee." Id. at 502-03, 34 S.Ct. at 639. Following widespread
criticism of its retention of the assumption of risk defense,
Congress amended the FELA in 1939 to eliminate the defense in
cases where the injury "resulted in whole or in part from the
negligence of any of the officers, agents, or employees" of the
employer. 45 U.S.C. § 54. Interpreting the amendments soon
thereafter, the Supreme Court held that "every vestige of the
doctrine of assumption of risk was obliterated from the law by
the 1939 amendment," see Tiller, 318 U.S. at 57, 63 S.Ct. at 446,
and that "cases tried under the Federal Act [are] to be handled
as though no doctrine of assumption of risk had ever existed."
Id. at 64, 63 S.Ct. at 450. The Court warned that "'[u]nless
great care be taken, the servant's rights will be sacrificed by
simply charging him with assumption of the risk under another
name.'" Id. at 58, 63 S.Ct. at 447 (citation omitted).
2. Assuring Assumption of Risk Stays Out
In light of the 1939 amendment and Tiller's
interpretation of it, because contributory negligence on the
plaintiff's part reduces his or her damages, while assumption of
risk does not, courts have the delicate job of separating out
evidence on one theory from evidence on the other. See Victor E.
Schwartz, Comparative Negligence, § 9-4(a)(1) at 202 (3d ed.
1994) ("[F]acts constituting implied assumption of risk have no
materiality except as they might also constitute contributory
negligence."). Some courts have guarded against jury confusion
by doing what Fashauer suggests the court should have done here:
describing assumption of risk to the jury and instructing it not
to reduce the plaintiff's recovery on that basis. See Koshorek
v. Pennsylvania R.R. Co., 318 F.2d 364, 370 (3d Cir. 1963)
(reversible error for district court not to instruct on
assumption of risk); Jenkins v. Union Pacific R.R. Co., 22 F.3d
206, 212 (9th Cir. 1994) (same). But other courts have expressed
wariness about instructing the jury on a legal doctrine not in
the case. As one court has put it, "the statutory elimination of
the defense of assumption of risk, when read to the jury in FELA
cases where that 'defense' has been neither pleaded nor argued,
serves only to obscure the issues in the case." Casko v. Elgin,
Joliet and Eastern Ry. Co., 361 F.2d 748, 751 (7th Cir. 1966).
The Court of Appeals for the Second Circuit, relying on the
proposition that "'it is a mistake to give instructions on
subjects not directly in issue in a case,'" DeChico v. Metro-
North Commuter R.R., 758 F.2d 856, 861 (2d Cir. 1985) (citation
omitted), has cautioned that "[a]n assumption of risk instruction
may be particularly inappropriate in cases where it 'might well
cause such confusion as to water down or even eliminate the issue
of contributory negligence.'" Id. at 861 (quoting Clark v.
Pennsylvania R.R. Co., 328 F.2d 591, 595 (2d Cir.), cert. denied,
377 U.S. 1006, 84 S.Ct. 1943 (1964)); see also Clark v.
Burlington N., Inc., 726 F.2d 448, 452 (8th Cir. 1984) ("Cases
discussing the issue have generally condemned the giving of an
assumption of risk instruction in FELA actions."); Heater v.
Chesapeake and Ohio Ry. Co., 497 F.2d 1243, 1249 (7th Cir.) (an
assumption of the risk "instruction is a confusing negative
statement which refers to issues not involved in a FELA case"),
cert. denied, 419 U.S. 1013, 95 S.Ct. 333 (1974).
These latter cases enunciate a salutary principle:
Whenever possible, courts should spare juries intricate
descriptions of opaque legal doctrines inapplicable to the case.
And indeed, our caselaw, while limited, supports that principle.
For example, in Seaboldt v Pennsylvania R.R. Co., 290 F.2d 296(3d Cir. 1961), the district court at the last minute acceded to
the plaintiff's request and charged the jury that assumption of
risk is not a defense. Id. at 300. We pointed out that "for
this difficult concept to be thrown into the jury's mind at the
last minute without explanation was almost sure to have left it
in confusion." Id. See also De Pascale v. Pennsylvania R.R.
Co., 180 F.2d 825, 827 (3d Cir. 1950) (district court properly
refused to instruct on assumption of risk where "[a]ssumption of
risk was definitely not important in th[e] case [when t]here was
no suggestion regarding it during the course of the trial.").
But in the end, this salutary principle can only be a
starting point. Because assumption of risk and contributory
negligence are similar doctrines, and because only the latter is
a defense under the FELA, we recognize that sometimes the absence
of an explanation of the differences between the doctrines will
confuse the jury as to the governing law. And, following that
logic, we have held that when the facts of the case present a
danger of jury confusion on the issue, an assumption of risk
charge should be given. Thus, in Koshorek v. Pennsylvania R.R.
Co., the only evidence concerning the plaintiff's negligence
consisted of his continuing to work in a dusty shop when he
"either knew or should have known that inhalation of excessive
dust over an extended period of time might cause him harm." 318
F.2d at 369. The district court refused to give an assumption of
risk charge and the jury returned a verdict for the railroad. We
reversed because "[h]ad an adequate distinction between conduct
constituting contributory negligence and that which would have
constituted assumption of risk been pointed to the jurors in the
charge, the jury might well have reached a different verdict."
Id. at 369-70.
Thus, the most we can say as a matter of law is that
when the evidence adduced at trial presents a danger that the
jury might reduce a plaintiff's recovery based on the
impermissible theory of assumption of risk, then the trial judge
should instruct the jury on how that doctrine differs from
contributory negligence. But when the evidence presents no such
danger, then an adequate charge on contributory and comparative
negligence suffices. Of course, the most difficult part of the
inquiry is determining when the facts merit an assumption of the
risk instruction. To answer this question, we must inquire into
what Congress meant by the phrase "assumption of risk." Only
then will we be able to categorize the evidence and determine
whether such a charge should have been given.
3. Assumption of the Risk Generally
At common law an employee's voluntary,
knowledgeable acceptance of a dangerous
condition that is necessary for him to
perform his duties constitutes an assumption
of risk. Contributory negligence, in
contrast, is a careless act or omission on
the plaintiff's part tending to add new
dangers to conditions that the employer
negligently created or permitted to exist.
Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir.
1986) (citations omitted). Despite this seemingly simple
definition, courts have a difficult time distinguishing between
assumption of the risk and contributory negligence. This
difficulty is certainly due in large part to the fact that the
"assumption of risk" concept of voluntarily and knowingly
accepting a dangerous condition often is used as an umbrella term
to describe a number of discrete and dissimilar concepts. See
Schwartz, Comparative Negligence, § 9-1(a) at 187; W. Page
Keeton, et. al., Prosser and Keeton on Torts, § 68 at 480 (5th
ed. 1984). For example, in some cases assumption of risk
describes a party's express contractual agreement to assume a
risk; under this scenario, "the defendant is relieved of a legal
duty to the plaintiff." Prosser and Keeton on Torts, § 68 at
481. Other times the phrase is used as a legal fiction under
which, based on the circumstances, a party is deemed implicitly
to have consented to bear particular kinds of risk. For example,
a railroad worker might be said to have assumed the risks
inherent in working in a dangerous occupation. The umbrella
category of assumptions of risk also divides into the
subcategories of reasonable assumptions of risk and unreasonable
assumptions of risk. See Schwartz, § 9-4(c)(2) at 214; Smith v.
Seven Springs Farm, Inc., 716 F.2d 1002, 1005 (3d Cir. 1983).
Thus, when an expert skier traverses an extremely difficult
slope, he may be said reasonably to have assumed the risk
inherent in skiing a difficult slope. Id. at 1009. But when a
novice consciously chooses the difficult slope, his actions
probably would be characterized as unreasonable. Thus, a
person's implicit consent to undertake a risk can be either
reasonable or unreasonable. As a corollary, an individual who
accepts a dangerous employment at a high wage might be said to be
acting reasonably. But a person who accepts the identical
employment for a lower wage and with minimal safety precautions
might be said to be acting unreasonably.
The subcategory of unreasonable assumption of risk
sounds suspiciously like a negligence concept. In fact, in such
cases -- where the plaintiff unreasonably assumed a known risk --
the difference between assumption of risk and contributory
negligence appears purely semantic. Rather than saying the skier
assumed a risk, we easily could say that he failed to act with
due care. See Prosser and Keeton on Torts, § 68 at 481 (equating
unreasonable assumption of risk with contributory negligence).
The point is crucial, because it means there are times when a
description of the defense of assumption of the risk "overlaps
with [a description of] the defense of contributory negligence."
Smith, 716 F.2d at 1006. In such cases, evidence supporting one
theory also constitutes evidence of the other. Thus, depending
on how courts characterize such evidence, a jury either may be
permitted to reduce the plaintiff's recovery or be barred
completely from considering such evidence. Thus, our next
inquiry must be into just what theory of assumption of risk
Congress sought to prohibit when it barred the defense under the
FELA. To answer the question, we turn first to the history
behind Congress' initial allowing and subsequent elimination of
the assumption of risk defense under FELA, and then we consider
the pertinent interpretative caselaw.
4. Assumption of the Risk Under FELA
During the beginnings of industrial growth in the 19th
century, and prior to the enactment of FELA and other legislation
protecting employees, the common law governing employment
injuries "was heavily stacked against employees." Daniel Saphire,
Two Views on FELA and Railroad Safety, 19 Transp. L. J. 401, 402
(1991). Specifically, the common law courts had devised rules
"to insulate the employer as much as possible from bearing the
'human overhead' which is an inevitable part of the cost -- to
someone -- of the doing of industrialized business." Tiller, 318
U.S. at 59, 63 S.Ct. at 447. Thus, for example, "a plaintiff's
contributory negligence barred any subsequent recovery for
damages, even if the plaintiff was only slightly at fault." Monk
v. Virgin Islands Water & Power Authority, 1995 WL 231637 at * 2
(3d Cir. April 20, 1995). The point, in part, was "to give
maximum freedom to expanding industry," Tiller, 318 U.S. at 59,
63 S.Ct. at 447, in the belief that "optimal economic growth
could occur only when the government did not interfere unduly
with the free workings of the marketplace." Jane P. North,
Comment: Employees' Assumption of Risk: Real or Illusory Choice,
52 Tenn. L. Rev. 35, 39 (1984). The doctrine of assumption of
the risk was one of those barriers erected against this
background. The doctrine, which "prevented recovery when a
plaintiff was deemed to have assumed the risk of a known danger,"
Monk, 1995 WL 231637 at * 2 (citing W. Page Keeton et al.,
Prosser & Keeton on the Law of Torts, § 68, at 495-96 (5th ed.
1984)), really was "a judicially created . . . 'rule of public
policy, [developed because] an opposite doctrine would not only
subject employers to considerable and often ruinous
responsibilities, thereby embarrassing all branches of business,'
but would also encourage carelessness on the part of the
employee." Tiller, 318 U.S. at 58-59, 63 S.Ct. at 447 (citations
and footnotes omitted).
The Supreme Court summed up the meaning of the concept
in the pre-FELA case of Tuttle v. Detroit, G.H. & M. Ry. Co., 122
U.S. 189, 7 S.Ct. 1166 (1887), when it declined to allow a jury
to inquire into the reasonableness of a railroad's choice of
machinery. It explained its decision as follows:
The brakemen and others employed to work in
such situations must decide for themselves
whether they will encounter the hazards
incidental thereto; and, if they decide to do
so, they must be content to assume the risks.
. . . . 'A railroad yard, where trains are
made up, necessarily has a great number of
tracks and switches close to one another, and
any one who enters the service of a railroad
company connected with the moving of trains
assumes the risk of that condition of
things.' It is for those who enter into such
employments to exercise all that care and
caution which the perils of the business in
each case demand.
Id. at 194-95, 7 S.Ct. at 1168 (emphasis added) (citation
omitted). Thus, assumption of risk in the employment context
described the notion of implied consent -- when an employee takes
a job, he or she consents to assume the risk of any danger he or
she knows or should know necessarily is entailed in the job. In
a sense the doctrine estopped the employee from blaming the
employer for an injury resulting from a risk contemplated by the
parties when they fashioned their employment contract. The Court
in fact explicitly relied on this quasi-contract basis for the
doctrine: "'[T]he servant, when he engages in the employment,
does so in view of all the incidental hazards, and . . . he and
his employer, when making their negotiations, -- fixing the terms
and agreeing upon the compensation that shall be paid to him, --
must have contemplated these as having an important bearing upon
their stipulations. As the servant then knows that he will be
exposed to the incidental risk, he must be supposed to have
contracted that, as between himself and the master, he would run
this risk.'" Id. at 195-96, 7 S.Ct. at 1168-69 (citation
omitted). Therefore in an action claiming damages because of
one's employer's negligence, "although an employer may have
violated the duty of care which he owed his employee, he could
nevertheless escape liability for damages resulting from his
negligence if the employee, by accepting or continuing in the
employment with 'notice' of such negligence, 'assumed the risk.'"
Tiller, 318 U.S. at 69, 63 S.Ct. at 452 (Frankfurter, J.,
concurring).
In a case decided after the original FELA was enacted -
- when assumption of the risk remained a complete defense to the
railroad's negligence -- the Supreme Court distinguished
assumption of the risk from contributory negligence and again
described assumption of risk in implied consent terms.
"Contributory negligence involves the notion of some fault or
breach of duty on the part of the employee." Seaboard Air Line
Ry. v. Horton, 233 U.S. at 503, 34 S.Ct. at 639-40. Assumption
of the risk, on the other hand, "may be free from any suggestion
of fault or negligence on the part of the employee." Rather,
"employments [that] are necessarily fraught with danger to the
workman . . . are normally and necessarily incident to the
occupation [and] are presumably taken into account in fixing the
rate of wages." Id. at 504, 34 S.Ct. at 640. Assumption of the
risk again referred to risks to which the plaintiff implicitly
consented in taking the employment; other than that, the
plaintiff was charged with acting as a prudent person under the
circumstances.
Tiller, the seminal case that first interpreted the
1939 FELA amendment, canvassed the history of the assumption of
the risk defense, and explained it in implied consent terms. The
Court noted that assumption of the risk originally was included
in the FELA "because of acceptance of the theory that the
employee's compensation was based upon the added risk to his
position and that he could quit when he pleased." Tiller, 318
U.S. at 61, 63 S.Ct. at 448. But, the Court noted, in adopting
the amendments, "[t]he report of the Senate Judiciary Committee
struck at the basic reasons advanced by common law courts for the
existence of the doctrine, declared it unsuited to present day
activities, and described them as out of harmony with the
equitable principles which should govern determinations of
employer-employee responsibilities." Id. at 64-65, 63 S.Ct. at450 (citing Senate report).
Thus, Supreme Court cases from the pre-FELA, pre-
amendment and post-amendment eras all contemplated that
assumption of risk under the FELA referred to the employee's
implied consent to assume the risks entailed in employment. So
Congress in adopting the 1939 amendments sought to prevent juries
from reducing a plaintiff's recovery because the plaintiff
performed a dangerous task or a dangerous job rather than quit or
find employment elsewhere.
5. Refining the distinctions
Various courts have refined the distinction between
assumption of risk and contributory negligence under the FELA in
the last few decades. In the oft-cited Taylor v. Burlington N.
R.R. Co., 787 F.2d 1309, a case in which the plaintiff claimed
injuries resulting from harassment by his supervisor, the
railroad argued that the plaintiff's failure to "bid off" to
another work area where he would work under a different
supervisor, constituted contributory negligence. The court
disagreed, holding that "[t]he employee who enters the workplace
for a routine assignment in compliance with the orders and
directions of his employer or its supervising agents, who by such
entry incurs risks not extraordinary in scope, is not
contributorily negligent, but rather is engaging in an assumption
of risk." Id. at 1316. Assumption of risk as the court
described it thus was comprised of the plaintiff's implicit
consent to the risks of employment; the employer could not reduce
its liability by arguing that the plaintiff should not have
performed the job.
In Rivera v. Farrell Lines, Inc., 474 F.2d 255 (2d
Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 122 (1973),3 the
Court of Appeals for the Second Circuit also applied the implied
consent theory of assumption of risk. In that case, the
plaintiff slipped and fell on a wet pantry floor while performing
his job of getting ice cream for a crew member. The district
court charged the jury that "appellant might have been
contributorily negligent by not having 'the common sense to go
and say to somebody in charge, "Look, this has got to be cleaned
up; I won't work here until it is done."'" Id. at 258 (quoting
charge). The court of appeals, noting that "unrebutted evidence
. . . established that . . . numerous complaints about the
situation in the pantry had been made to no avail," reasoned that
3
. Rivera arose under the Jones Act, but the standards governing
the parties' conduct generally are the same under both the FELA
and the Jones Act. Kernan v. American Dredging Co., 355 U.S.
426, 439, 78 S.Ct. 394, 401 (1958) (Seaman "was in a position
perfectly analogous to that of the railroad workers . . . and the
principles governing [FELA] cases clearly should apply [under the
Jones Act].").
"[i]t cannot be known whether further complaint by appellant
would have resulted in correction of the drain defect in time to
avoid the accident." Id. Thus, "if . . . contributory
negligence is submitted to the jury on retrial . . . it should be
done so only with a caveat that the appellant was not duty bound
to perform a futile act." Id. In other words, if the employee
could not reasonably expect the employer to correct the defect,
then the employee had no real alternative but to perform the
task, defect or not. But if reasonable safe alternatives were
available -- such as if notification could have resulted in
immediate correction of the problem, then it was not necessary
for the employee to accept the dangerous condition. The employee
could not be said to have implicitly consented to working in an
unsafe work area, and his actions in failing to follow a safer
alternative would constitute contributory negligence. Thus, when
alternatives besides quitting are available to plaintiff, his
actions are reviewed for reasonableness, and unreasonable
assumptions of risk constitute evidence of contributory
negligence. See also Joyce v. Atlantic Richfield Co., 651 F.2d
676, 683 (10th Cir. 1981) (adopting implied consent theory of
assumption of the risk) (person is not guilty of contributory
negligence "'simply because he acceded to the request or
direction of the responsible representatives of his employer that
he work at a dangerous job, or in a dangerous place, or under
unsafe conditions.'") (quoting Devitt and Blackmar, Fed. Jury
Prac. and Instructions, §94.16 (3d ed.)).
The Court of Appeals for the Ninth Circuit recently
applied these principles to the day to day relationships between
supervisor and employee in Jenkins v. Union Pacific R.R. Co., 22
F.3d 206 (9th Cir. 1994). In that case, a railroad engineer was
attempting to "shove a length of nine flatcars to a point where
they would be coupled with other cars." Id. at 208. Because the
engineer's locomotive was pushing (rather than pulling) the cars,
the engineer was unable to observe the point of contact, and the
plaintiff was asked to act as his eyes and ears. The plaintiff
did this by boarding the front car. Because the engineer
believed that the plaintiff was having difficulty boarding the
car, he stepped on the brakes. But the other cars continued to
move forward, and the plaintiff was "caught on the axle, pulled
under the train, and thrown out onto the rail," suffering severe
injuries. Id. at 209.
In making its analysis, the court distinguished between
general orders and specific orders. "'Where a general order is
given, an employee must use ordinary care in its execution, and
the giving of the order does not affect the question whether the
servant has been negligent in his manner of carrying it out,
where there is a choice open to him.'" Id. at 211 (citation
omitted) (emphasis added). In such cases, the plaintiff's
actions are reviewable for contributory negligence. However,
when the employee is given a specific order -- that is, where he
or she is told to perform a specific task in a particular way --
"he is not contributorily negligent; rather his conduct falls
under the abolished doctrine of assumption of risk." Id. In
other words, when a plaintiff has no real choice, his recovery
should not be reduced because he performed the task, regardless
of whether the plaintiff acted reasonably or unreasonably. But
when the plaintiff has reasonable alternatives available to him,
he must act reasonably in performing his job. And if he acts
unreasonably, he is answerable for contributory negligence.
To illustrate, in that case, the employer produced
evidence that the plaintiff violated company safety rules in
performing the job in the manner in which he did. Because this
evidence supported the employer's argument that the plaintiff had
a safer method of performing his job, the court "agree[d] with
Union Pacific that the jury could rationally find that Jenkins
contributed to his own injury by violating the operating rule."
Id. at 212.
Not all courts agree with the proposition that
assumption of risk under the FELA describes the theory that the
plaintiff implicitly has consented to the risks of his
employment, and that when there are alternatives available the
plaintiff must act reasonably. The Court of Appeals for the
Eighth Circuit, for example, took a more expansive view in
Birchem v. Burlington N. R.R. Co., 812 F.2d 1047 (8th Cir. 1987).
There, the plaintiff used a defective "mudjack" despite knowing
of company safety rules "forbidding the use of unsafe or
defective equipment." Id. at 1048-49. In the court's view, the
district court properly rejected the railroad's proffered
instruction that the plaintiff's conduct evidenced negligence on
his part. Rather, according to the court, "[t]he district court
properly admonished the jury during the trial that the Railroad's
theory was an impermissible effort to transfer to Birchem its
nondelegable duty to provide safe equipment and a safe working
environment." Id. at 1049. In so holding, the court necessarily
rejected the proposition that unreasonable assumptions of the
risk entailed in choosing one particular method of performing a
task may constitute contributory negligence. It thus rejected
implied consent as the theory of assumption of risk under FELA.4
We are not persuaded by the Birchem court's analysis.
In our view, the history behind the FELA and the Supreme Court's
pronouncements in pre- and post-FELA cases makes clear that
assumption of risk in the employment context refers to implied
consent. Taylor, Jenkins, and Rivera are in accord with that
principle and we find their analyses persuasive. Thus, we hold
the following: A plaintiff's recovery under the FELA never can
4
. Despite that language in the court's opinion, though, it
approved, without elaborating, the district court's instruction
that "evidence concerning the manner and way in which [plaintiff]
used the equipment was proper for its consideration." Birchem,
812 F.2d at 1049. It is difficult to see how a jury would
reconcile these instructions.
be reduced on the basis that he or she implicitly consented to
the risk by accepting employment with the railroad or by
performing a task in the manner which the employer directed.
This is true regardless of whether the plaintiff acted reasonably
or unreasonably. Thus, even when a jury examining a plaintiff's
position objectively would conclude that he acted unreasonably in
accepting employment, or performing a task at all, such
unreasonable actions for FELA purposes are characterized as
assumption of risk rather than contributory negligence.
But all other actions of plaintiff are "to be handled
as though no doctrine of assumption of risk had ever existed,"
Tiller, 318 U.S. at 64, 63 S.Ct. at 450, and if they are evidence
of negligence they should be admitted to show contributory
negligence. Thus, when reasonable alternatives besides quitting
or refusing to perform the task in an unsafe way are available, a
plaintiff is charged with acting with due care and will be held
responsible for acting unreasonably. In such circumstances
"[w]hen the plaintiff unreasonably assumes a known risk, his
fault in that regard is negligence and his damage award may be
subject to apportionment." See Schwartz at § 9-4(c)(2) at 214;
see also id. at § 9-4(a)(1) at 202 ("The language of the F.E.L.A.
makes it clear that . . . only facts that would constitute
unreasonable implied assumption of risk (as contrasted with
reasonable) can serve to reduce the plaintiff's award.").
Examples of evidence of contributory negligence include failing
to follow specific safety instructions reasonably calculated to
protect the employee from the injury that occurred; failing to
report a defect when the evidence establishes that such reporting
would be productive; and failing to act prudently in performing
the task.
Based on these principles, if no evidence of
impermissible assumption of risk has reached the jury, a correct
instruction on contributory negligence will do. However, if,
either because of evidence introduced at trial or because of
statements made by counsel in opening or closing arguments, there
is a risk that the implied consent theory of assumption of the
risk seeped its way into the case, the jury should be instructed
that it "may not find contributory negligence on the part of the
plaintiff . . . simply because he acceded to the request or
direction of the responsible representatives of his employer that
he work at a dangerous job, or in a dangerous place, or under
unsafe conditions." Joyce, 651 F.2d at 683 (citation omitted).
We now turn to the facts of this case to determine
whether there was a danger that the jury confused assumption of
the risk with contributory negligence, and therefore that an
assumption of risk charge should have been given.
6. Application Of the Law
Fashauer claims that defense counsel made a number of
impermissible references in her opening and closing statements,
the net result of which enabled the jury to reduce his recovery
based on an impermissible version of assumption of the risk. He
first argues that defense counsel's statement in her opening that
"plaintiff is not a newcomer to the railroad," see app. 168,
demonstrates an illicit attempt to bring assumption of risk into
the case. He buttresses the point by quoting counsel's argument
that "[plaintiff] walked in that vestibule back and forth during
the course of that day through the very spot that he later
alleges he slipped in." app. 169.
When counsel's statements are read amidst the
surrounding context, however, it becomes clear that she was not
interjecting assumption of risk into the case but instead
attempting to show that: (1) the vestibule's condition was the
result not of New Jersey Transit's negligence but of normal
conditions during the rain; and (2) Fashauer did not act with due
care in walking through the wet vestibule. For instance, she
argued that "if you add up the total number of stops at the time
this alleged incident happened, [the accident happened on] the
19th stop. As you know on the stops passengers get on and off
the train and it has been continuing to rain the entire day."
App. 169. Moreover, the references to Fashauer going in and out
of the vestibule were intended to point out that despite his
complaint about the soaked vestibule, "plaintiff never reported
any leaking from the tube diaphragm into the vestibule area at
any time before this accident happened." Id. That observation
was a legitimate attempt to rebut Fashauer's argument that the
vestibule was unusually wet that day. Further, defense counsel's
emphasis on the fact that Fashauer "wasn't holding on to any
handholds whatsoever," in violation of company safety rules, see
id. at 170, was a permissible argument advancing the defense of
contributory negligence. If the jury believed the evidence, it
could have found that Fashauer had a safer alternative to the
manner in which he performed his task.
Next, Fashauer points to defense counsel's argument in
her closing that:
[i]t's common sense that plaintiff should
have been expected to know that this floor
was wet. Again I'm going to stress this,
probably until you're sick of hearing that we
know it was raining all day long. He had
been out there for seven hours, at least.
Windy, hurricane, rainy day, stormy. I mean
passengers coming. You know there was two
hundred passengers, the floor has to be wet.
Plaintiff had to have known the floor was wet
and that the rug was wet. He had to know the
exact condition of the floor.
app. 892. But defense counsel did not use these observations to
build an argument that Fashauer should not have performed his
job. Rather, she argued that he acted unreasonably in performing
the task in the manner in which he did, and that the condition
Fashauer encountered was not abnormal and therefore not
proximately caused by New Jersey Transit's negligence. After
making the above-quoted statements, defense counsel segued into a
discussion of the relevant safety rules, and argued that when
Fashauer failed to follow them he contributed to the injury. See
app. 892-93. To say that such an argument should not have been
made would be "to water down or even eliminate the issue of
contributory negligence." DeChico v. Metro-North Commuter R.R.,
758 F.2d at 861. Indeed, if we precluded the argument we
virtually would be preventing the jury from considering whether
there were in fact reasonable safe alternatives for Fashauer to
follow. Id.; see also Jenkins, 22 F.3d at 212 (violating
operating rule constitutes evidence of contributory negligence).
More problematic is the district court's description of
the evidence in the case during its charge. The court instructed
the jury that "defendant . . . alleges that plaintiff contributed
to the happening of the accident by his own negligence in moving
about the vestibule and by failing to follow safety regulations."
App. 956. The first part of the court's statement could be read
to imply that Fashauer was contributorily negligent simply
because he moved about the vestibule in the rain. If the
statement had gone unqualified, we might be inclined to agree
with Fashauer that the charge permitted the jury to reduce his
recovery based simply on the fact that he performed his job. But
the court did not issue its statement in a vacuum as it made the
statement only after thoroughly describing the concepts of
negligence and ordinary prudence. Thus, the court was referring
to the manner in which Fashauer walked through the vestibule,
rather than to the simple fact that he walked through the
vestibule. Moreover, we have found nothing in the record
constituting an impermissible argument on assumption of risk as
we have defined it. As in Seaboldt and De Pascale, "[t]here was
no suggestion regarding [assumption of risk] during the course of
the trial." De Pascale, 180 F.2d at 827. It therefore is
inconceivable to us that the jury would sua sponte have taken it
upon itself to manufacture an additional defense.
To summarize, we do not believe that the charge as a
whole was confusing to the jury on this point. We therefore
reject Fashauer's argument that the district court erred by
failing to instruct the jury that assumption of risk is not a
defense under the FELA.
B. Charge on Contributory Negligence
Fashauer next contends that the district court gave a
defective charge on the standard for contributory negligence. As
indicated above, the question on review is whether the charge,
taken as a whole, correctly stated the applicable law. Here, the
question really is one of law -- defining the concept of
contributory negligence. The district court instructed the jury
as follows:
To determine whether the plaintiff was
contributorily negligent, you apply the same
definition of negligence discussed earlier.
That is did the plaintiff take or fail to
take actions which a reasonably prudent
person would have taken in the circumstances.
You also apply the same rule of causation.
That is did plaintiff's negligence, if any,
play any part in bringing about his injuries.
Although I have instructed you that plaintiff
has the burden of proving its case by a
preponderance of the evidence, it is the
defendant which has the burden of proving
also by a preponderance of the evidence that
plaintiff was contributorily negligent.
App. 960-61 (emphasis added). The court previously defined
negligence as follows:
Negligence is simply the failure to use the
same degree of care which a person of
ordinary prudence would use in the
circumstances of a given situation. It could
be the doing of something which a reasonably
prudent person would not have done, or
failing to do something which a reasonably
prudent person would have done under the
circumstances. The definition of negligence
requires the defendant to guard against those
risks or dangers of which it knew or by the
exercise of due care should have known.
App. 957.
Fashauer contends that the court erred in "impos[ing] a
standard of causation in dealing with the issue of plaintiff's
contributory negligence that is significantly more harsh than the
standard that would be applied under the common law." Br. at 23.
Fashauer also appears to take issue with the court's duty of care
instruction; he contends that under the FELA he has only a slight
duty to protect himself, and thus the court erred in holding him
to the same standard of care as the railroad. The district
court, in its opinion ruling on Fashauer's motion for a new
trial, followed the language of the statute, a Pennsylvania
district court case, and a case from the Sixth Circuit to hold
that the same causation and care standards apply to both employer
and employee. It noted, though, that "I personally find it very
problematic that in a remedial statute designed to protect the
working man and working woman, that you should apply, in effect,
an enhanced contributorily negligent [sic] statute, because
that's the effect. You're putting a heavier burden on the worker
than even the common-law would have put on it." Op. at 68.
In the first place, we are puzzled by Fashauer's
contention and the district court's concern regarding the
causation instruction. It must be remembered that under the pre-
FELA common law, contributory negligence totally barred a
plaintiff from any recovery. Thus, in that scenario, the
proposition that a plaintiff is contributorily negligent if his
negligence played any part at all in causing the injury at times
would have worked draconian consequences. But the FELA modified
the common law; it contains a comparative negligence scheme which
reduces plaintiff's recovery only in proportion to his share of
responsibility for the injury. In short, while the standards of
causation differ, so do the results of a finding of contributory
negligence. As the district court instructed the jury:
"[A]ssuming that you find . . . that plaintiff was negligent and
that his negligence played a part in causing his own injuries,
you must then determine the percentage to which plaintiff's
negligence, if any, contributed to his injuries." App. 961.
Thus, a jury finding of contributory negligence does no harm to
the plaintiff unless it makes a further finding that the
plaintiff's fault contributed to the injury to a particular
degree. In other words, if a plaintiff's negligence contributed
only marginally to the injury, his recovery would be reduced only
marginally. Since the jury found that Fashauer was 50%
responsible for his injury, it obviously found that he was more
than marginally responsible. Therefore, in a pure comparative
negligence scheme such as FELA's, Fashauer's argument is
insubstantial.
We also disagree with Fashauer's contention that a FELA
plaintiff is held to a lesser standard of care than his employer,
notwithstanding the district court's invitation to us to reverse
on this ground. See op. at 68-69 ("I welcome the insight,
guidance, and even reversal from the Third Circuit on this
issue."). In the first place, it is unclear what it means to say
that a plaintiff has only a slight duty to protect himself. It
seems to us that someone acts either with due care or without due
care. The FELA is neither a worker's compensation statute nor a
strict liability statute, and absent explicit direction from
Congress or the Supreme Court, we decline to turn it into one.
More importantly, our interpretation is confirmed by
the language of the statute. By its very terms, the FELA
provides that "the damages shall be diminished by the jury in
proportion to the amount of negligence attributable to such
employee." 45 U.S.C. § 53. The statute does not distinguish
between degrees of negligence; the statute does not say that the
plaintiff only has a slight duty of care. Under the statute, a
plaintiff's recovery is reduced to the extent that he is
negligent and that such negligence is responsible for the injury.
In such a situation, one must assume that Congress intended its
words to mean what they ordinarily are taken to mean -- a person
is negligent if he or she fails to act as an ordinarily prudent
person would act in similar circumstances. Such a reading also
is in accord with the FELA's pure comparative negligence scheme;
and to adopt Fashauer's argument would be to abandon the clear
dictate of the statute in favor of a policy decision to favor
employees over employers.
Our interpretation finds further support in precedents
of this court and others. In the Jones Act case of Mroz v. Dravo
Corp., 429 F.2d 1156 (3d Cir. 1970), the appellant contended that
the district court erred by charging the jury on contributory
negligence. In rejecting the argument, we reasoned:
[C]ontributory negligence is the neglect of
the duty imposed upon a person to exercise
ordinary care for his own protection and
safety which is a legally contributing cause
of an injury. In determining whether an
injured person has been guilty of
contributory negligence the standard of
conduct to which he must conform is that of a
reasonably prudent person under the
circumstances. If a person by his own action
subjects himself unnecessarily to danger
which should have been anticipated and is
injured thereby he is guilty of contributory
negligence.
Id. at 1163. Fashauer's argument that different duties of care
apply is directly contrary to this language, which applies the
same standard of care to both employer and employee. Other
courts similarly have ruled. See Karvelis v. Constellation Lines
S.A., 806 F.2d 49, 52-53 & n.2 (2d Cir. 1986) (approving jury
instruction charging that both plaintiff and defendant are
required to act with reasonable care), cert. denied, 481 U.S.
1015, 107 S.Ct. 1891 (1987); Brown v. OMI Corp., 863 F. Supp.
169, 170-71 (S.D.N.Y. 1994) (applying reasonable care standard to
defendant's contributory negligence claims).
To be sure, Fashauer's contention derives support from
a series of Jones Act cases decided in the Fifth Circuit. Under
the standard enunciated in those cases, "a seaman's duty to
protect himself is not ordinary care, but slight care." Brooks
v. Great Lakes Dredge-Dock Co., 754 F.2d 536, 538 (5th Cir. 1984)
(citing cases), modified on other grounds, 754 F.2d 539 (5th Cir.
1985). In Brooks, for example, the court of appeals found
reversible error in an instruction that "contributory negligence
is the failure on the part of the injured party to use ordinary
care for his own safety under the circumstances at the time and
place in question." Id. (emphasis added); see also Bobb v.
Modern Prods., Inc., 648 F.2d 1051, 1057 (5th Cir. 1981). But we
find those cases unpersuasive in light of the FELA's explicit
language and comparative negligence scheme, and further note that
it is unclear whether the slight care standard is viable in the
Fifth Circuit itself. In a more recent discussion of the
question, that court of appeals said in rather explicit terms
that "the same general negligence ('ordinary prudence') and
causation standards apply to both employer and employee in
Federal Employers' Liability Act (and, by extension, Jones Act)
cases." Gavagan v. United States, 955 F.2d 1016, 1019 n.7 (5th
Cir. 1992).
We find no error in the district court's contributory
negligence charge.
C. Future lost earnings capacity
Fashauer next argues that the district court erred in
its jury instruction on future lost earnings. It is settled law
that in a FELA case, a plaintiff may recover compensatory damages
for lost earning capacity. Wiles v. New York, Chicago and St.
Louis R.R. Co., 283 F.2d 328, 332 (3d Cir. 1960), cert. denied,
364 U.S. 900, 81 S.Ct. 232 (1960); Gorniak v. National R.R.
Passenger Corp., 889 F.2d 481, 483 (3d Cir. 1989); see also
McNight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir.
1992), cert. denied, ____ U.S. ____, 113 S.Ct. 1270 (1993).
Under that theory of damages, if a plaintiff "show[s] that his
injury has caused a diminution in his ability to earn a living,"
he or she may recover damages covering the extent to which the
railroad's negligence caused the diminution in earning capacity.
However, such recovery is appropriate only where the plaintiff
"has produced competent evidence suggesting that his injuries
have narrowed the range of economic opportunities available to
him." Gorniak, 889 F.2d at 484.
In Gorniak, we discussed what such evidence must
entail, and, after canvassing the relevant caselaw, concluded
that a plaintiff may prove impaired earning capacity by
presenting evidence of "a decreased ability to weather adverse
economic circumstances, such as a discharge or lay-off, or [a
decreased ability] to voluntarily leave the defendant employer
for other employment." Id. In Wiles, for example, the
plaintiff, as a result of the defendant's negligence, had
undergone numerous operations and wound up with substantial and
ineradicable scars in his back, and a permanent minor back
deformity. While he remained employed by the railroad as a car
repairman, his medical expert testified that "he would have
difficulty getting a job in heavy industry elsewhere than with
the Railroad" because physical examinations, generally required
by such employers, "would compel Wiles to disclose the nature of
his operations and that he had a history of disc protrusion and
back fusion and these disclosures would militate against his
securing employment." Wiles, 283 F.2d at 331. Based on this
testimony, we held that, although Wiles was earning more in his
current position than in his position at the time of his injury,
he had no protection against being discharged or laid off. And
if one of those contingencies occurred, he would face the
consequences of a reduced ability to procure employment. Id. at
332. Additionally, "if [Wiles] cannot obtain gainful employment
elsewhere he is chained to his present job in a kind of economic
servitude." Id. In such circumstances, Wiles had shown evidence
that his injuries limited his economic horizons.
The evidence in Gorniak was even stronger. At the time
of the injury, Amtrak employed the plaintiff as a materials
handler. At trial, the plaintiff introduced expert evidence that
he "was subject to permanent physical restrictions . . . that
would preclude him from working as a materials handler or store
attendant in an Amtrak warehouse, and in many positions in the
industrial workforce outside Amtrak." Gorniak, 889 F.2d at 484.
Moreover, although after the injury Amtrak had given the
plaintiff a position as a ticket clerk, he introduced evidence
that because of the company's seniority system, if Amtrak cut
down on its light duty force, he would be without a job. In
support of this fear, "evidence at trial indicate[d] that Amtrak
has closed one if its Pennsylvania facilities and has abolished
jobs in plaintiff's craft at another during Gorniak's employment
with Amtrak." Id. at 484. Finally, we noted that "Gorniak . . .
is under no obligation to remain with Amtrak, and the fact that
his injuries hindered his ability to obtain other employment if
he wished was one the jury could consider in deciding to award
him damages." Id.Although we reject New Jersey Transit's argument that
evidence supporting lost earnings capacity must come from a
vocational expert, we nevertheless agree that Fashauer has
produced no "competence evidence" supporting his claim for these
damages. The evidence consisted almost entirely of medical
testimony, only tangentially related to Fashauer's economic
horizons, that the accident caused a permanent injury to his
shoulder that restricted his physical activity. See app. 444
(testimony of Dr. Gary Goldstein). For instance, Dr. Goldstein
testified that because of the injury, Fashauer cannot lift
weights over 20 pounds above his waist level and therefore "can't
do any activities that would involve reaching overhead with even
minimal power." Id. Thus, Fashauer was unable to continue
working as a trainman or brakeman. Id. at 445. Fashauer himself
testified that his inability to lift his arm very high prevented
him from performing his prior work at the railroad. App. 221.
But Fashauer does not refer to testimony that he would
have difficulty obtaining work with a different employer, or that
jobs he could do after the injury were less lucrative than his
railroad job. No witness even opined that Fashauer's injury
limited his economic potential. On appeal, Fashauer points to
nothing specific in the record which would constitute evidence
from which a jury could calculate such damages. The jury had no
information from which to conclude that Fashauer's economic
horizons were limited. He essentially wanted the jury to take
his counsel's word for it.
At any rate, contrary to Fashauer's argument, the
district court's charge, read in its entirety, adequately
instructed the jury on loss of future earning capacity. Fashauer
points to various portions of the district court's charge that he
contends permitted the jury to award future damages only for the
time he was unable to work at all. But the charge is not so
limited. For instance, the court said to the jury:
[Y]ou next have to fix the amount of the
loss. You do this by considering the length
of time during which plaintiff was not able
to work. The length of time he'll be unable
to work in the future. What his income was
before the injuries and the extent that any
physical impairments resulting from injuries
may lessen or decrease his income, should he
return to the work force.
App. 963 (court's jury charge) (emphasis added). While the court
first referred to damages while Fashauer was unable to work, it
then plainly instructed the jury to consider whether Fashauer's
income would decrease if he does return to work. It appears that
the judge categorized damages based on inability to work and
damages based on a decreased earning capacity as separate
measures of damages. The court continued:
If you decide . . . that it is reasonable
that plaintiff will lose income in the future
because he has not been able to return to
work, then you should also include an amount
to make up for those lost wages. In deciding
how much your verdict should be to cover
future lost income, think about the factors
mentioned in discussing past earning losses,
such as the nature, extent and duration of
his injury. Also consider the plaintiff's
age today, his general state of health before
the accident, how long you reasonably expect
the loss of income to continue and how much
plaintiff can earn in any available job that
he . . . physically will be able to do.
App. 964-65. Here again, it is clear that the court separated
the two measures of damages -- damages based on an inability to
work and damages based on impaired earning capacity in the
future. But it certainly did not say that the former is the
exclusive measure of future lost income damages. In discussing
the law regarding awards of fringe benefits, the court
instructed:
[Fringe benefits are] benefit[s] that you
should include in your award for each future
year, if any, in which you find plaintiff
will likely be unable to return to work. . .
. If you find that at some point in time
plaintiff should be able to return to work,
but at a lower paying position[,] in fixing
the amount of the future wage loss, you
should consider not only the difference in
pay rates, but the possible lower value of
any fringe benefits available to plaintiff in
his new position.
App. 966. Again, the "confusion" Fashauer perceives in the
charge derives from the court's decision to distinguish the two
measures of damages. It is difficult to see how a jury could be
confused by an instruction which repeatedly asks it to consider
loss of earning capacity. We reject Fashauer's argument.
D. Rebuttal Witness
Fashauer next contends that the district court erred in
refusing to permit him to call a rebuttal witness who was not
listed in the pretrial orders. His contention builds upon the
following procedural background.
In the pretrial order, New Jersey Transit named Dr.
Morris Ehrenreich as a vocational expert. Ehrenreich was slated
to testify that based on doctors' reports about Fashauer's work
abilities and a job search conducted in the New Jersey area,
Fashauer had numerous employment opportunities. Nothing in the
pretrial summary of testimony indicated that Ehrenreich had
conducted a job search by answering classified advertisements in
newspapers. At trial, however, when defense counsel asked
Ehrenreich about the methods he used to gauge Fashauer's ability
to gain employment, the following colloquy ensued:
Q: And what did you do?
A: I did a laborer survey, a laborer
survey, which looked at the jobs available to
him in this community, and, in fact, I found
him a -- employer who's ready to interview
him for a job if he wishes.
Q: And what job is that?
A: This was a job as a salesman for a car
dealership. I spoke to the manager who
suggested that Mr. -- that if he's interested
in the job, he can come down and apply for
the job and indicated that the average
salesman for this dealership earns between 30
and $70,000 a year.
App. 778-79.
Subsequent questioning by the court revealed that
Ehrenreich had discovered this "job opportunity" by responding to
newspaper advertisements in the Asbury Park Press the day before
he testified. Moreover, the court's further questioning revealed
that while the trial was proceeding, New Jersey Transit's counsel
had supplied Ehrenreich with the newspapers, thereby assisting
Ehrenreich in the untimely job search.5 In other words, as the
court later put it, Ehrenreich, with New Jersey Transit's
cooperation, amended his report during the trial without notice
to Fashauer's counsel.
5
. The court questioned the witness as follows:
THE COURT: What made you call up [the Jaguar
company]?
THE WITNESS: They had an ad in the paper
offering jobs with training.
THE COURT: Well, there's hundreds of ads
in the paper every day. . . . What made you
pick that one?
THE WITNESS: Well, I got the job from
Friday from the Asbury News.
THE COURT: From when?
THE WITNESS: This past Friday.
THE COURT: So, this was just done this
Friday?
THE WITNESS: Yes. And it was a -- many of
the jobs require that you -- that you fax
them a resume or you send a resume in.
* * *
THE COURT: And this you did last Friday?
THE WITNESS: This I did on Monday.
App. 780-82.
Immediately upon discovering that the witness had
testified about a survey not mentioned in the pretrial report,
the court practically invited Fashauer to object to the
testimony. Nonetheless, his counsel explicitly declined to
object, informing the court that "I'm not objecting." App. 782.6
Subsequently, out of the presence of the jury, the court severely
rebuked New Jersey Transit and the expert:
THE COURT: I think harm has been done to
slip by the notion that to have this witness,
in effect, work on his report, because that's
what he's doing when he's making the calls.
He's working on his report. He's modifying
his report when he gets up there and says
there is a car dealership that would
interview this man. He's modifying his
report.
6
. The relevant passage was as follows:
Q: Did you make any other calls previously
to them?
A: Not really.
THE COURT: Do you have something to say?
MR. BARISH: No.
THE COURT: I'm sorry.
MR. BARISH: I started to.
THE COURT: Either you object or you don't object.
Your motions don't mean --
MR. BARISH: I'm not objecting.
THE COURT: Okay. Ask your next question.
App. 782.
I might add he didn't say till I
questioned him when that was done. Only in
response to my questions did it come out he
did it yesterday. It is yesterday, really
yesterday, not just -- I'm shocked and
stunned that a witness would be put on the
stand.
* * *
[I]t's another example of [sic] this
case of, in effect, trial by ambush, and the
idea is to say -- I don't have to repeat that
I don't like it.
App. 798. Instead of objecting to the testimony or requesting
the court to give a limiting instruction, Fashauer's counsel
elected to cross-examine Ehrenreich about the substance of his
telephone call to the dealership salesman.
After Ehrenreich finished testifying -- and after the
court again rebuked New Jersey Transit -- Fashauer's counsel
requested leave to present a rebuttal witness, who was to testify
that "he conducted a job search through the agencies, through a
number of sources of his business, through the State of New
Jersey, and that there were no jobs . . . presently available
that Mr. Fashauer could receive." App. 859. The district court
denied the motion, reasoning that "I think [Dr. Ehrenreich's]
testimony was so ludicrous that it's just inconceivable to me
that the jury got anything out of it." App. 861. Thus, "I'm
making the judgment that [Dr. Ehrenreich's testimony] is so
laughably ludicrous that I don't think you need -- that it
requires rebuttal." App. 861-62.
In its ruling on Fashauer's post-trial motions, the
district court amplified the reasons behind its decision to
preclude the rebuttal testimony. In that opinion, the court
questioned Fashauer's counsel's motive in requesting leave to
call a rebuttal witness. Noting that his rebuttal witness
"apparently was in court ready to go" when Ehrenreich gave his
surprise testimony, see op. at 76, the court pointed out that
"[t]here's absolutely nothing [the witness] could have said about
that. . . . He couldn't say, I called the same Jaguar salesman,
and he said No, there is no job." Op. at 77. Therefore,
according to the court, Fashauer was using the testimony as an
artificial justification for testimony rebutting Ehrenreich's
general testimony about Fashauer's employability, as Fashauer
must have planned to call the rebuttal witness without regard to
whether Ehrenreich gave surprise testimony. As the court put it,
"[t]he only thing that was new in Dr. Ehrenreich's testimony that
hadn't been in his original report was that he looked in the want
ads and found a Jaguar salesman." Id. Therefore, the rebuttal
witness could have been named in the pretrial report. The court
concluded that "what we had here was a tactical decision made by
the plaintiff to get the last word in by withholding his own
expert and then springing him at the end. . . . What was really
wanted by the plaintiff was to put its vocational expert last and
get the last shot at the jury, and I don't think that's a proper
use of rebuttal." Op. at 76-78.
Boiled down to its essence, the question before us is
whether, in light of the manner of the proceedings, the district
court erred in refusing to allow Fashauer to call a rebuttal
witness who was not listed in the pretrial orders. "[T]he trial
court ha[s] the discretion to exclude testimony of a witness who
had not been identified. The trial court's exclusion of
testimony because of the failure of counsel to adhere to a
pretrial order will not be disturbed on appeal absent a clear
abuse of discretion." Semper v. Santos, 845 F.2d 1233, 1238 (3d
Cir. 1988); see also Greate Bay Hotel & Casino v. Tose, 34 F.3d
1227, 1236 (3d Cir. 1994). As we have explained, "[o]ne of the
main purposes of the pretrial conference is to formulate the
issues to be litigated to aid the parties in preparation for
trial. If counsel are permitted to change the positions taken at
pretrial obviously the effectiveness of this procedure is
destroyed." Ely v. Reading Co., 424 F.2d 758, 763 (3d Cir.
1970).
Here, we find no abuse of discretion in the district
court's decision. Fashauer contends that rebuttal was required
to dispel the notion left by Ehrenreich's testimony that he was a
malingerer. However, the district court's finding that
plaintiff's counsel was using the rebuttal witness to rebut
anticipated testimony and simply get the last word, is not
clearly erroneous. That being the case, Fashauer "'from the
outset of this action knew the [defendant's] contentions and the
necessity for . . . rebuttal testimony could reasonably have been
anticipated.'" American Int'l Trading Corp. v. Petroleos
Mexicanos, 835 F.2d 536, 538 (5th Cir. 1987) (internal
alterations omitted) (alteration added) (citation omitted).
Therefore, the district court acted within its discretion in
refusing to allow the rebuttal expert to testify.
We stress that the decision to exclude the rebuttal
expert had nothing to do with the content of Ehrenreich's
testimony, and nothing we say should be read to approve his
testimony. However, the record shows that Fashauer did not
object to the testimony, did not request a limiting instruction,
and was intending to use the witness to rebut anticipated
testimony rather than the surprise testimony. Fashauer chose to
cross-examine Ehrenreich in the hopes of discrediting him. He
cannot capitalize now on his tactical choice by getting improper
rebuttal before the court.
E. Mitigation of Damages
Finally, Fashauer contends that the district court
erred in neglecting to instruct the jury that New Jersey Transit
had the burden of proving that Fashauer failed to mitigate his
damages. Under the FELA, which is to be interpreted according to
"general principles of law as administered in the federal courts
. . . an injured plaintiff has a duty to mitigate his damages."
Jones v. Consolidated Rail Corp., 800 F.2d 590, 593 (6th Cir.
1986). However, "once it is established that a duty to mitigate
is present, the burden . . . falls on the wrongdoer to show that
the damages were lessened or might have been lessened by the
plaintiff." Id. at 593; DeBiasio v. Illinois Central R.R., 52
F.3d 678, 688 (7th Cir. 1995) (same); Jackson v. City of
Cookeville, 31 F.3d 1354, 1359 (6th Cir. 1994) (same); Schneider
v. National R.R. Passenger Corp., 987 F.2d 132, 136 (2d Cir.
1993). The district court instructed the jury that "[p]laintiff
. . . must try to minimize the damages due to loss of wages. But
extraordinary or impractical efforts are not necessary. All that
is required are reasonable efforts and ordinary care in trying to
reduce the loss." App. 963. The district court's charge, while
correctly stating that Fashauer had a duty to mitigate, failed to
specify that New Jersey Transit had the burden of proof on the
issue. Because the mitigation language occurred in the midst of
the court's general damages instructions, the jury could well
have believed that Fashauer had the burden to prove mitigation.
Therefore, the charge unquestionably was flawed.
However, Fashauer failed to request a charge on
mitigation of damages, and, as the district court pointed out,
"no one asked for that burden of proof charge. Mr. Barish
[plaintiff's counsel] admits, candidly, that he did not call to
my attention at any of the various points that I have failed to
do that." Op. at 48.
Thus, while ordinarily an "[i]ncorrect jury instruction
as to burden of proof 'is "fundamental and highly prejudicial"
and requires a new trial,'" Waldorf v. Shuta, 896 F.2d 723, 730
(3d Cir. 1990) (citation omitted), that principle assumes that
the issue properly has been preserved for appeal. The procedure
for preserving an objection to a jury charge is governed by Fed.
R. Civ. P. 51 which provides that:
At the close of the evidence . . . any
party may file written requests that the
court instruct the jury on the law as set
forth in the requests. The court shall
inform counsel of its proposed action upon
the requests prior to their arguments to the
jury. The court, at its election, may
instruct the jury before or after argument,
or both. No party may assign as error the
giving or the failure to give an instruction
unless that party objects thereto before the
jury retires to consider its verdict, stating
distinctly the matter objected to and the
grounds of the objection.
Fed. R. Civ. P. 51 (emphasis added).
We repeatedly have stressed the important policy
objectives served by Rule 51. The rule affords the trial judge
"an opportunity to correct any error that may have been made in
the charge before the jury begins its deliberations." Seman v.
Coplay Cement Co., 26 F.3d 428, 436 (3d Cir. 1994); Miller v.
CIGNA Corp., 47 F.3d 586, 591 n.5 (3d Cir. 1995) (in banc). It
also "lessen[s] the burden on appellate courts by diminishing the
number of rulings at the trial which they may be called upon to
review." McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 769
n.29 (3d Cir. 1990). Thus, Rule 51 is consistent with the
general rule that "an appellate court will not predicate error on
an issue upon which the district court was not provided with an
opportunity to rule." Remington Rand Corp.- Delaware v. Business
Sys., Inc., 830 F.2d 1260, 1267 (3d Cir. 1987). We have followed
this proposition strictly, and have refused to consider "newly
developed arguments[s] concerning [a] jury charge deficiency."
McAdam, 896 F.2d at 769; see, e.g., Dunn v. HOVIC, 1 F.3d 1371,
1378 (3d Cir. 1993) (in banc) (declining to consider whether jury
instruction was defective under Virgin Islands law because "th[e]
issue was not properly preserved for appeal under Federal Rule of
Civil Procedure 51"), cert. denied, ____ U.S. ____, 114 S.Ct. 650(1993).
In the absence of a party's preservation of an assigned
error for appeal, we review only for plain error, and our power
to reverse is discretionary. Cf. United States v. Olano, 113
S.Ct. 1770, 1778 (1993) (interpreting Federal Rule of Criminal
Procedure 52(b)). Consequently, "our discretionary power to
review errors in jury instructions which were not objected to at
trial should be exercised sparingly"; otherwise we risk
"emasculat[ing]" the important policies served by Rule 51.
McAdam, 896 F.2d at 770 n.31 (citing Trent v. Atlantic City Elec.
Co., 334 F.2d 847, 859 (3d Cir. 1964)). Thus, we should notice
the error only "'if [it] is fundamental and highly prejudicial or
if the instructions are such that the jury is without adequate
guidance on a fundamental question and our failure to consider
the error would result in a miscarriage of justice.'" Bereda v.
Pickering Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989)
(quoting United States v. 564.54 Acres of Land, 576 F.2d 983, 987
(3d Cir. 1978), rev'd on other grounds, 441 U.S. 506, 99 S.Ct.
1854 (1979)); Bennis v. Gable, 823 F.2d 723, 727 (3d Cir. 1987)
(same).
We take guidance in this regard from the Supreme
Court's recent interpretation of the Federal Rule of Criminal
Procedure setting forth the plain error standard, Rule 52(b).
The Court held that courts of appeal should exercise their
discretion to "correct a plain forfeited error affecting
substantial rights if the error 'seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.'" Olano, 113 S.Ct. at 1779 (quoting United States
v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392 (1936)). If
anything, the plain error power in the civil context -- which is
judicially rather than statutorily created -- should be used even
more sparingly. And in keeping with this, the Court of Appeals
for the Second Circuit has held that the doctrine "should only be
invoked with extreme caution in the civil context." United
States v. Carson, 52 F.3d 1173, 1188 (2d Cir. 1995). The court
continued: "plain error review is only appropriate in the civil
context where the error is so serious and flagrant that it goes
to the very integrity of the trial." Id. (citing Brenner v.
World Boxing Council, 675 F.2d 445, 456 (2d Cir.), cert. denied,
459 U.S. 835, 103 S.Ct. 79 (1980)).
We decline to exercise our discretion to reverse in
this case, notwithstanding the importance of proper instructions
on burdens of proof. In the first place, the instruction was
quite cursory and not at all as detailed as mitigation
instructions usually are and should be. The court did not tell
the jury explicitly that Fashauer had a duty to mitigate. The
court did not instruct the jury how to reduce the damages if it
found Fashauer failed to mitigate. Thus, it seems doubtful that
the instruction had the significance with which Fashauer endows
it.
Moreover, Fashauer in his brief repeatedly confuses
loss of future earnings capacity with the duty to mitigate
damages. For example, he points to the fact that the jury
awarded no damages for future lost earnings as evidence that the
mitigation charge prejudiced him. But to the extent that the
district court's mitigation charge referred to future earning
potential, it was correct. The defendant is obligated to prove
failure to mitigate, but that burden only applies to damages for
past loss of earnings -- from the time of injury to the time of
trial. As discussed in detail above, though, the plaintiff has
the burden of proving future loss of earnings due to a diminished
earnings capacity. Gorniak, 889 F.2d at 484. As Judge Bailey
Brown pointed out in his concurrence in Jones v. Consolidated R.
Corp., 800 F.2d at 595, the "burden [i]s on the defendant to show
that, after his injury and prior to the trial, [plaintiff] was
able to do some work and did not make a reasonable effort to find
and do such work." But the burden remains on the plaintiff to
prove "damage[s] as a result of a decrease in earning capacity
which will reduce future income." Id. (Brown, J., concurring).
Here, the jury awarded Fashauer $71,320 for past loss
of earnings and he does not contend that this amount was
inadequate. Therefore, the fact that the jury awarded nothing
for future loss of earnings only reflects that Fashauer failed to
prove that element of damages. We recognize that, as in Jones,
the district court's charge did not adequately distinguish
between past losses and future losses, but that hardly prejudiced
Fashauer. And it hardly affected the integrity of the trial. We
reject Fashauer's argument.
III. CONCLUSION
For all the reasons detailed above, we will affirm the
judgment of the district court.