Downer v. CSX Transportation, Inc. , 256 Va. 590 ( 1998 )

Present: Carrico C.J., Compton, Lacy, Hassell, Keenan, Kinser,
JJ., and Whiting, Senior Justice
MICHAEL J. DOWNER
OPINION BY
v. Record No. 972657 SENIOR JUSTICE HENRY H. WHITING
NOVEMBER 6, 1998
CSX TRANSPORTATION, INC.
FROM THE CIRCUIT COURT OF YORK COUNTY
Prentis Smiley, Jr., Judge
This is an appeal of an action under the Federal Employers'
Liability Act, 45 U.S.C. §§ 51 et seq. (1981) (FELA).
Michael J. Downer filed this FELA action against Amoco Oil
Company (Amoco) and his employer, CSX Transportation, Inc.
(CSX), alleging that he was injured when those parties
negligently exposed him to noxious chemicals at Amoco's Yorktown
Refinery. Downer settled his claim against Amoco upon its
payment of $5,000 in exchange for Downer's covenant not to sue
and the consequent dismissal of Amoco as a party defendant. 1
1
Downer's release of Amoco did not release CSX. Code § 8.01-35.1
provides in pertinent part:
A. When a release or a covenant not to sue is given
in good faith to one of two or more persons liable in
tort for the same injury . . . :
1. It shall not discharge any of the other tort-
feasors from liability for the injury . . . ; but any
amount recovered against the other tort-feasors or any
one of them shall be reduced by any amount stipulated
by the covenant or the release, or in the amount of
the consideration paid for it, whichever is greater.
Subsequently, a jury rendered a verdict of $5,000 in
Downer's favor against CSX. CSX moved to reduce the verdict by
the amount paid by Amoco in settlement of Downer's claim against
it in accordance with Code § 8.01-35.1(A)(1). The trial court
sustained CSX's motion, reduced the amount of the verdict by
$5,000, and entered judgment against CSX for costs only. Downer
appeals and CSX assigns cross-error.
Consistent with well-settled appellate principles, we state
the evidence of liability in the light most favorable to Downer,
who has received a verdict in his favor. In the summer and fall
of 1991, Amoco employees loaded a liquid solution of sodium
hydroxide into tank cars parked on the railroad tracks at its
Yorktown refinery. Sodium hydroxide is a noxious chemical that
can become airborne on hot, windy days. Amoco placed drip pans
under the tank cars to contain any sodium hydroxide spills.
On July 9th, 1991, a hot, windy day, Downer was engaged in
switching operations at the Yorktown refinery and was required
to be near the drip pans. At that time, Downer became short of
breath, spit up mucus, experienced a burning sensation in his
eyes, and suffered an injury to his upper respiratory tract by
inhaling fumes from the nearby sodium hydroxide. Downer was
taken to a hospital, treated for two days, and released to his
home for recuperation. Three weeks later, complaining of pain
and breathing problems, Downer was hospitalized for an
2
additional eight days. Downer testified that during this
hospitalization, he suffered additional stress when a priest
administered the last rites to him.
After returning to work at the end of August, Downer was
again engaged in switching operations near the drip pans at
Amoco's Yorktown refinery on September 10th, another hot, windy
day. On that date, he again inhaled the fumes from the airborne
sodium hydroxide and suffered the recurrence of some of his
earlier symptoms. He was treated as an outpatient at a hospital
and did not return to work until November 20, 1991.
Upon his return to work, Downer, asserting his right to do
so under CSX's collective bargaining agreement, asked to resume
his work in the Yorktown area. However, CSX advised him that he
could not do so because Amoco did not want him working at its
refinery. Downer was shown Amoco's letter stating that:
[i]t is Amoco Oil Company's desire that Mr. Downer not
be permitted any further access of Amoco's Yorktown
Refinery location. Such request is being made as there
now exists an adversarial relationship between Amoco
Oil Company and Mr. Downer, with his seeking damages
against Amoco for the alleged injurious exposure on
Amoco's property. Secondly, although Amoco disputes
Mr. Downer's allegations that he suffered adverse
reactions to his exposure to a toxic substance at the
Yorktown Refinery, we certainly do not wish in any way
to contribute to any illness or injury to Mr. Downer
as a result of his being hypersensitive to any
purported elements found on the Amoco property.
Because of CSX's acquiescence in Amoco's decision not
to allow Downer to enter its Yorktown refinery property and
3
because Downer could not work in the Yorktown area without
entering Amoco's property, CSX assigned him to work on a
route beginning and ending in Richmond. This transfer was
against Downer's wishes because it required him to commute
each working day between his assignment in Richmond and his
home in the Yorktown area. Additionally, Downer allegedly
suffered humiliation because junior men were working the
job he wanted "and it's not like I did anything wrong [at
Amoco's refinery], but I was being punished for it."
First, Downer argues that by acquiescing in Amoco's
decision, CSX increased his damages. On brief, Downer
acknowledges that the court permitted an instruction
regarding Downer's inconvenience and humiliation
Nevertheless, he complains that the court erroneously
refused to permit him to argue his claims for damages
arising from the inconvenience and humiliation he suffered
as a result of Amoco's refusal to permit him to work at its
Yorktown refinery.
The transcript discloses that although the court had
earlier instructed Downer not to assert these claims in his
final arguments to the jury, he did so briefly and the court
overruled CSX's objection thereto. Under these circumstances,
we conclude that Downer was not prejudiced by the court's
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earlier ruling, even if erroneous, a matter we need not decide.
Hence, we reject this contention.
Next, Downer argues that the court erred in refusing
to set aside the $5,000 verdict as inadequate and award a
new trial on the issue of damages. Downer suggests that
[r]easonable people could conclude that $5,000 was not
reasonable compensation for a person who had $1,400 in
undisputed lost wages, required two hospitalizations
for a total of ten days, required two visits to the
emergency room, experienced intense pain and
suffering, was confined to his home for at least a
month and whose condition was so affected that he was
out of work for seventeen weeks.
(Emphasis added.)
Downer postulates a principle contrary to our well
established precedent. We have repeatedly held that a jury's
award of damages may not be set aside by a trial court as
inadequate or excessive unless the damages are so excessive or
so small as to shock the conscience and to create the impression
that the jury has been influenced by passion or prejudice or has
in some way misconceived or misinterpreted the facts or the law
which should guide them to a just conclusion. E.g., Poulston v.
Rock, 251 Va. 254, 258, 467 S.E.2d 479, 481 (1996) (excessive
verdict); Johnson v. Smith, 241 Va. 396, 400, 403 S.E.2d 685,
687 (1991) (inadequate verdict).
These principles presuppose that a trial court will not set
aside a verdict either as inadequate or as excessive merely
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because the court may have awarded a larger or smaller sum had
it been the trier of fact. See Reel v. Ramirez, 243 Va. 463,
467-68, 416 S.E.2d 226, 228 (1992)(allegedly excessive and
inadequate successive verdicts); Raisovich v. Giddings, 214 Va.
485, 489, 201 S.E.2d 606, 609 (1974) (allegedly inadequate jury
award); Edmiston v. Kupsenel, 205 Va. 198, 202, 135 S.E.2d 777,
780 (l964) (allegedly excessive verdict).
Hence, in deciding whether the jury's award is inadequate,
the test is whether reasonable people could not conclude that
the $5,000 award was reasonable compensation in this case. See
Bradner v. Mitchell, 234 Va. 483, 487, 362 S.E.2d 718, 720
(1987)(stating that if "no rational fact-finder" could disregard
uncontroverted and complete evidence of special damages, such
damages must be considered fixed constituent part of verdict in
determining inadequacy of jury award); Dinwiddie v. Hamilton,
201 Va. 348, 354, 11 S.E.2d 275, 279 (1959) (reversing order
setting verdict aside because adequacy of earlier jury award
"was a question on which reasonable minds could differ").
We apply those principles here. And, since Downer attacks
the sufficiency of the verdict, we view the evidence of damages
in the light most favorable to the validity of the verdict.
Mutual Ben. Health & Acc. Ass'n v. Hite, 184 Va. 614, 617, 35
S.E.2d 743, 744 (1945)
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There are several considerations supporting the quantum of
the jury's award. Downer does not claim a permanent injury or
disability. Since his doctors considered some of his complaints
to be out of proportion to what they could find physically wrong
with him, the complaints were thus characterized by the doctors
as the result of psychological stress. Downer recognizes that
such complaints are subjective. The weight to be given such
complaints is dependent on the jury's assessment of the
plaintiff's credibility.
Additionally, the jury was instructed without objection
that it could reduce the amount of Downer's recovery "in
proportion to the relative negligence of the plaintiff and
defendant." 2 Given these considerations, we think that
reasonable persons could conclude the award was adequate.
Code § 8.01-383 vests discretion in a trial court in
deciding whether a verdict should be set aside on the grounds of
excessiveness or inadequacy. Johnson, 241 Va. at 400, 403
S.E.2d at 687. Thus, the ultimate test on appeal to this Court
is whether the trial court abused its discretion in ruling on
motions to set aside verdicts as inadequate or excessive. Id.We cannot say that the trial court abused its discretion in
refusing to set aside the verdict as inadequate.
2
The instruction was in conformity with the FELA comparative
negligence rule. 45 U.S.C. § 53.
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In his final assignment of error, Downer maintains that the
court's "offset" of Amoco's settlement payment against the
$5,000 verdict against CSX was void as a violation of the
following provision of 45 U.S.C. § 55:
Any contract, rule, regulation, or device whatsoever,
the purpose or intent of which shall be to enable any
common carrier to exempt itself from any liability
created by this act shall to that extent be void.
Provided, that in any action brought against such
common carrier under or by virtue of any of the
provisions of this act, such common carrier may set
off therein any sum it has contributed or paid to any
insurance, relief benefit, or indemnity that it may
have paid to the injured employee . . . on account of
the injury . . . for which said action was brought.
According to Downer, CSX used the provisions of Code
§ 8.01-35.1(A)(1) as a "device" proscribed by 45 U.S.C. § 55 to
enable CSX "to exempt itself from any liability." However, as
CSX points out, counterclaims in FELA actions have been held not
to be proscribed "devices" to exempt railroads from liability.
Nordgren v. Burlington Northern R. Co., 101 F.3d 1246, 1250-51
(8th Cir. 1996); Sprague v. Boston and Maine Corp., 769 F.2d 26(1st Cir. 1985) Cavanaugh v. Western Maryland Ry. Co., 729 F.2d
289 (4th Cir.), cert. denied, 469 U.S. 872 (1984). Nor are the
assertions of the defense of releases obtained by railroads or
other joint tortfeasors from FELA plaintiffs considered as such
proscribed "devices." See Callen v. Pennsylvania R.R., 332 U.S.
625, 630-31 (1948)(release obtained by railroad); Panichella v.
Pennsylvania R.R., 268 F.2d 72, 75-76 (3rd Cir. 1959), cert.
8
denied, 361 U.S. 932 (1960)(tortfeasors other than the
railroad). In Panichella, the court noted that "[t]he railroad
merely brought the fact of the release to the attention of the
court in order to have the law operate thereon." Id. Here, CSX
merely brought the fact of the release and the relevant
provisions of the Viriginia Code to the attention of the court
in order to have § 8.01-35.1(A)(1) operate thereon.
In deciding whether CSX has used a proscribed "device," we
see no significant difference between the assertion of a
counterclaim, a release of another joint tortfeasor, and a
motion to reduce a verdict. Instead, we think that, because of
Downer's release of Amoco, CSX simply invoked a statutory right
designed to avoid double recoveries in cases of this kind.
Thus, we find no merit in this argument.
Downer also contends that 45 U.S.C. § 55 evidences a
congressional intent to preempt "state action to the contrary"
as exemplified in Code §8.01-35.1(A)(1). Courts will not,
however, find a Congressional intent to preempt state action in
the absence of "clear and manifest purpose" to do so. CSX
Trans., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)(quoting
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). We
fail to detect any such purpose in the Act. Instead, we think
that the application of the Act is limited to devices created by
railroads to exempt themselves from liability. Here, CSX's
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right arose under Code § 8.01-35.1(A)(1) because of Downer's
settlement with Amoco, not because of something CSX did to
exempt itself from liability. Hence we reject this contention.
In sum, we find no error in the trial court's denial of
Downer's motion for a new trial.
CSX asserts assignments of cross-error, which, if
sustained, would require a reversal of the judgment and entry of
a final judgment in favor of CSX. We have considered these
assignments of cross-error and find no merit in them. 3
Accordingly, the judgment of the trial court will be
Affirmed.
3
At CSX's request, we have not considered those assignments
of cross-error which would be material only if we remanded the
case for a new trial.
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