Taylor v. Burlington Northern R. Co.

Citation787 F.2d 1309
Decision Date18 April 1986
Docket NumberNo. 84-3764,84-3764
Parties20 Fed. R. Evid. Serv. 744 Stanley F. TAYLOR, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Allan R. Wales and David G. Laidman, Hayes & Wales, Seattle, Wash., for plaintiff-appellee.

George C. Inman, Jr., Seattle, Wash., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, KENNEDY, and ANDERSON, Circuit Judges.

KENNEDY, Circuit Judge:

Stanley Taylor, a former employee of Burlington Northern Railroad, brought this action under the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60 (1982), alleging that harassment by Burlington's foreman caused him to suffer paranoid schizophrenia. Burlington appeals from the jury verdict awarding Taylor $504,000, and we reverse the judgment and remand the case for a new trial.

Burlington hired Taylor in June 1977 as a section laborer. Born in 1953, he is borderline mentally retarded, and, at least at the time he was hired, he was quite obese. The foreman on two of the section gangs on which Taylor worked was Prentice Bradford. Although Bradford did not have a high regard for Taylor, there was no trouble between them initially.

Taylor's problems apparently began in November 1978. Taylor had a fight with a coworker who followed him home one evening and pistol-whipped him; as a result, Taylor lost an eye. He spent a month with his family in Portland and several months with his brother in Chicago. During this period, his family thought he was acting differently, and he was delusional.

When Taylor returned to work in April 1979, Bradford began harassing and mistreating him on a regular basis. Bradford claimed that constant criticism was necessary because Taylor was a poor worker who used drugs and prostitutes and was involved in fights. Bradford used sexual and, although both men are black, racial epithets against Taylor, threatened him with a knife, pulled him around by his beard, and cut off a portion of his beard on one occasion. Other employees confirmed these allegations at trial. Taylor testified, however, that Bradford never cut, scraped, or bruised him. Taylor reported Bradford's use of a knife to Burlington's roadmaster and Bradford's supervisor, Ken Pellens, but Pellens did not conduct a formal investigation. In late 1979, Taylor transferred to another section, ostensibly to escape from Bradford. According to Taylor, however, Bradford visited him there in order to continue the harassment.

In April 1981, Taylor was involved in a fight with a coworker and left work out of fear. After a six-week disappearance, his father found him in a muddy field in Vancouver. Soon after Taylor returned to his family in Portland, he was committed to a mental hospital and diagnosed as having paranoid schizophrenia. He was released in July 1981 but received injections of an antipsychotic drug on an outpatient basis. He returned to work on a section gang in Oregon, but Burlington terminated him in March 1982 for insubordination and failure to work. He was committed again.

At trial several expert witnesses testified that Bradford's abusive conduct contributed to Taylor's paranoid schizophrenia. Burlington also introduced evidence suggesting that fights with fellow crew members, the loss of an eye in one such fight, and substance abuse contributed to his psychosis.

Appellant first argues that the district court erred in denying its two motions for dismissal for failure to state a cause of action, on the ground that the FELA does not provide for recovery for wholly mental, as opposed to physical, injuries. Section 1 of the FELA provides that "[e]very common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier...." 45 U.S.C. Sec. 51. The law of this circuit is that railroad employees may assert claims under this section for wholly mental injury. Buell v. Atchison, Topeka & Santa Fe Railway, 771 F.2d 1320 (9th Cir.1985), petition for cert. filed, 54 U.S.L.W. 3485 (U.S. Jan. 6, 1986) (No. 85-1140); accord McMillan v. Western Pacific Railroad, 54 Cal.2d 841, 357 P.2d 449, 9 Cal.Rptr. 361 (1960). We recognize that the issue of recovery for mental injury is one of importance to the enforcement of the FELA, and that the Seventh Circuit recently made observations that conflict with Buell's holding. See Lancaster v. Norfolk & Western Railway, 773 F.2d 807, 813-15 (7th Cir.1985). But the case at bar is not one of first impression in this circuit, and, despite our reservations, we are bound by Buell. Even if Buell were not binding, however, it is not clear from the record before us that appellant presents no evidence of a physical touching or injury.

Burlington also contends that the district court committed reversible error in refusing to instruct the jury on comparative negligence. Under the FELA, an employee is entitled to recover damages if the employer's negligence played any part in producing the injury, no matter how slight. Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 508, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957); Richardson v. Missouri Pacific Railroad, 677 F.2d 663, 665 (8th Cir.1982); see Funseth v. Great Northern Railway 399 F.2d 918, 922 (9th Cir.1968), cert. denied, 393 U.S. 1083, 89 S.Ct. 865, 21 L.Ed.2d 775 (1969); 45 U.S.C. Sec. 51. However, the FELA also contains a mandatory rule of comparative negligence, so that the damages are reduced in proportion to the amount of injury caused by the employee. Jamison v. Encarnacion, 281 U.S. 635, 639, 50 S.Ct. 440, 442, 74 L.Ed.2d 1082 (1930); Caillouette v. Baltimore & Ohio Chicago Terminal Railroad, 705 F.2d 243, 246 (7th Cir.1983); 45 U.S.C. Sec. 53. The question of how much of the injury is attributable to the employee's own actions and lack of due care for his own condition is to be decided by the jury if there is any evidence at all of contributory negligence. See Sears v. Southern Pacific Co., 313 F.2d 498, 502-03 (9th Cir.1963); Daulton v. Southern Pacific Co., 237 F.2d 710, 713 (9th Cir.1956), cert. denied, 352 U.S. 1005, 77 S.Ct. 564, 1 L.Ed.2d 549 (1957).

The district court abused its discretion in refusing to give an instruction on comparative negligence. Burlington presented evidence at trial suggesting that Taylor participated in heated verbal exchanges with Bradford at work. Burlington also introduced evidence tending to show that Taylor's fighting with his coworkers contributed to his stress. Further, although an expert witness testified that Taylor's marijuana and cocaine use was too remote in time to be related to Taylor's condition, other evidence suggested that the drug use may have played a part in causing Taylor's mental collapse. We discuss below whether evidence of Taylor's drug use was admissible at trial. To the extent it was admissible, it may have borne on Taylor's contributory negligence. Taylor's own lack of due care for his own condition may have reduced Burlington's liability, and the jury should have been allowed to consider whether Taylor acted without due care.

Burlington next contends that the district court erred in failing to give its proposed instruction that there may be more than one cause of Taylor's injury. See 3 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions Sec. 94.14 (1977). Psychiatrists testified that paranoid schizophrenia has multiple causes and that job stress is only one such cause. Other causes of stress on which evidence was presented were Taylor's mental retardation, obesity, fighting, drug use, and loss of his eye. Although the proposed charge may have more clearly instructed the jury to consider the independent causes of Taylor's mental illness, the court gave other instructions requiring the jury to examine causation. The court told the jury that "[t]here may be one or more proximate causes of an injury," and instructed the jury to consider Taylor's preexisting mental condition in order to reduce Burlington's liability. The district judge has discretion in formulating jury instructions and is not required to use the exact words proposed by either party. The judge does not abuse his discretion so long as, viewed as a whole, the instructions adequately describe the parties' theories of the case. Los Angeles Memorial Coliseum Commission v. National Football League, 726 F.2d 1381, 1398 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984); Ragsdell v. Southern Pacific Transportation Co., 688 F.2d 1281, 1282 (9th Cir.1982) (per curiam). He did not abuse his discretion here.

Next, Burlington argues that the district court erred in refusing to give its proposed instruction that an employer is not liable for the intentional torts of its employee when the employee's purpose is not in furtherance of the employer's business. Despite FELA's explicit reference only to negligence, the courts have found that two theories of liability exist in FELA cases involving intentional assaults by one employee upon another: respondeat superior and direct negligence. See, e.g., Lancaster, 773 F.2d at 817-20. Under the theory of respondeat superior, an employer is liable for the intentional assaults committed by its employee in furtherance of the employer's business. Copeland v. St. Louis-San Francisco Railway, 291 F.2d 119, 121 (10th Cir.1961); see also Lambert v. Morania Oil Tanker Corp., 677 F.2d 245, 247-48 (2d Cir.1982) (Jones Act liability). Under the theory of direct negligence, an employer is liable if it fails to prevent reasonably foreseeable danger to an employee from intentional or criminal misconduct. Harrison v. Missouri Pacific Railroad, 372 U.S. 248, 83 S.Ct. 690, 9 L.Ed.2d...

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