917 F.2d 1320 (2nd Cir. 1990), 33, Earl v. Bouchard Transp. Co., Inc.

Docket Nº:33, 93, Dockets 90-7234, 90-7256.
Citation:917 F.2d 1320
Party Name:James C. EARL, Plaintiff-Appellee/Cross-Appellant, v. BOUCHARD TRANSPORTATION CO., INC., and Tug Marion C. Bouchard Corp., Defendants-Appellants/Cross-Appellees.
Case Date:November 02, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1320

917 F.2d 1320 (2nd Cir. 1990)

James C. EARL, Plaintiff-Appellee/Cross-Appellant,



Bouchard Corp., Defendants-Appellants/Cross-Appellees.

Nos. 33, 93, Dockets 90-7234, 90-7256.

United States Court of Appeals, Second Circuit

November 2, 1990

Argued Aug. 27, 1990.

Page 1321

Paul C. Matthews, New York City, for plaintiff-appellee/cross-appellant.

Page 1322

Mark F. Muller, Freehill, Hogan & Mohar, New York City, for defendants-appellants/cross-appellees.

Before FEINBERG and CARDAMONE, Circuit Judges, and CABRANES, District Judge. [*]

JOSE A. CABRANES, District Judge:

In broad terms, this case presents six primary questions. First, did the district court's charge to the jury regarding contributory negligence constitute reversible error? Second, was it error for the district court to charge the jury that plaintiff could recover for pain and suffering and loss of life's pleasures? Third, did the district court abuse its discretion in not unconditionally ordering a new trial? Fourth, did the district court use an improper method of determining the remittitur or abuse its discretion by remitting the amount that it did? Fifth, after agreeing to the remittitur, may plaintiff now challenge it on cross-appeal? And finally, was it error for the district court, when calculating the total damage award and after subtracting the remittitur, to add an award for a claim of damages that had been previously dismissed?


The facts of this case are for the most part undisputed. Plaintiff was a tugboat deckhand employed by defendants. He brought a personal injury action under the Jones Act, 46 U.S.C.App. Sec. 688, against defendants for two separate accidents. The first was an elbow injury that occurred on August 29, 1984 for which he received a $5,000 jury award that is not in dispute.

The second and more serious injury occurred on December 13, 1984. On that date, defendants' tugboat, the Marion C. Bouchard, was tied to a dock in the East River by a single mooring line. The mooring line was about six inches in circumference and quite heavy. At one end was a loop which fit over a bollard located about eight feet from the stringpiece. 1 The deck of the tugboat was approximately six feet below the level of the stringpiece.

Although the task of casting off the mooring line is easily managed by two deckhands--one casting the loop off the bollard, the other hauling in the line--it can be difficult for just one deckhand. On the day of the accident, plaintiff received orders to cast off. Without any assistance from a second deckhand, plaintiff stepped up onto the bulwark and imparted a whiplike motion to the mooring line in an effort to remove it from the bollard. In the course of doing this, plaintiff lost his balance, fell from the bulwark, and landed with his right foot on a different line, severely spraining his ankle and aggravating his elbow injury.

Plaintiff was 61 years old at the time of both accidents. He maintains that, as a consequence of his injuries, he was forced to retire on May 16, 1985, approximately one month before turning 62. He claims damages for, inter alia, loss of future earnings on the grounds that, absent these injuries, he would have continued to work at least an additional three years and five weeks--that is, until his 65th birthday.

Following a three-day trial, a jury returned a verdict for plaintiff in the amount of $855,000 for the ankle injury--comprising $425,000 for special damages (i.e., lost earnings) and $430,000 for general damages (i.e., nonpecuniary losses). Defendants moved for a new trial or, in the alternative, a remittitur. Judge Weinstein denied defendants' motion for a new trial on the condition that plaintiff accept a remittitur with respect to the ankle injury to $525,000. In his Memorandum and Order of April 24, 1990, 735 F.Supp. 1167, Judge Weinstein divided the $525,000 into $105,000 for special damages, $380,000 for general

Page 1323

damages, and $40,000 for pre-judgment interest and "maintenance and cure." 2

Defendants now appeal from the denial of their motion for a new trial. They argue that Judge Weinstein committed "fundamental error" in his charge to the jury regarding contributory negligence and reversible error in his charge regarding pain and suffering and loss of life's pleasures. Defendants argue further that a new trial should be granted because the jury's verdict was the result of passion or prejudice and because Judge Weinstein abused his discretion by not unconditionally granting defendants' motion for a new trial. In the alternative, defendants ask this court substantially to increase the remittitur on the grounds that the district court employed an incorrect standard in calculating the remittitur and abused its discretion by not reducing the award further. Finally, defendants contend that the district court miscalculated the remittitur inasmuch as it factored back into the award an unspecified amount for maintenance and cure to reduce the amount of the remittitur after having dismissed the maintenance and cure claim during trial. Plaintiff cross-appeals, claiming that the district court abused its discretion by ordering too drastic a remittitur of the special damages award.

We affirm Judge Weinstein's decision not to grant unconditionally a new trial and all elements of his judgment except that portion relating to maintenance and cure, which we reverse and remand to the district court with instructions to excise that portion from the judgment.




In the course of his instructions to the jury on the issue of contributory negligence, Judge Weinstein stated that

[i]f you find that the plaintiff was injured because he was following the orders of his superiors, the captain, then you cannot find that there was any contributory negligence. That's true even if the plaintiff knew that the activity which he was ordered to do was dangerous. As a seam[a]n he had the obligation to follow orders. (Joint Appendix ["JA"] at 422)

According to defendants, Judge Weinstein's instruction constitutes "fundamental error" inasmuch as the phrase "following the orders of his superiors" was not sufficiently specific and, hence, too easily misconstrued. Defendants contend that plaintiff was ordered simply to cast off the mooring line and not, more specifically, to stand on the bulwark. In defendants' view, plaintiff opted to stand on the bulwark--an act that is itself prohibited--by his own choice and independent of any order. Accordingly, defendants maintain that plaintiff was contributorily negligent, notwithstanding the fact that plaintiff was, in a general sense, following the orders of his superiors.

Defendants' argument fails for at least two reasons. First, defendants never objected to this instruction at trial and consequently have no sufficient grounds for appealing that instruction. In general, a party may not raise on appeal an asserted

Page 1324

error in the giving or failure to give a particular instruction to the jury unless he has made timely objection in the trial court. Fed.R.Civ.P. 51; 3 Air et Chaleur, S.A. v. Janeway, 757 F.2d 489, 493 (2d Cir.1985). An exception may be made only when there is "plain error"--that is, where the error may result in a miscarriage of justice or in obvious instances of misapplied law. Id. at 494; see also Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 2754, 69 L.Ed.2d 616 (1981) (stating exception to "plain error" rule for areas of law that are in "a state of evolving definition and uncertainty").

We find no error in Judge Weinstein instructions, much less "plain error." The instruction on contributory negligence was clearly in accord with the law of this circuit. Indeed, in Darlington v. National Bulk Carriers Inc., 157 F.2d 817 (2d Cir.1946), Judge Frank, writing for a unanimous panel that included Judges Swan and Learned Hand, reversed a defendant's verdict, because the district court had refused to give this substantially similar charge:

The plaintiff was bound to obey the orders of his superiors on board the vessel. The chief officer was the plaintiff's superior and plaintiff was bound to obey the orders of the chief officer. Even though the orders of the chief officer required him to work with unsafe tools or under unsafe conditions, the plaintiff was obliged to obey the orders and did not assume any risk of obedience to orders.

Id. at 819. It cannot have been plain error for Judge Weinstein to give an instruction that is so similar to the instruction that the district court in Darlington was reversed for failing to give.

But even assuming for the argument that defendants' counsel had properly and timely objected, the jury instruction was not faulty. The jury was informed that the question of whether plaintiff was following a specific order to stand on the bulwark, or whether he was following only a more general order to cast off, was a disputed issue of fact. Indeed, in his charge to the jury, Judge Weinstein carefully explained that is was

[t]he defendant[s'] contention ... that the plaintiff's actions leading to his fall were not taken pursuant to orders or company practice. Instead, the defendant[s] claim[ ] that they were taken solely due to the plaintiff's own negligence.

Particularly, it's the defendant[s'] contention that the plaintiff was ordered not to stand on the bulwark when doing this kind of work. (JA at 415)

Thus, the jury was clearly informed of defendants' position that plaintiff was injured because he was actually disobeying orders not to stand on the bulwark. Likewise, Judge Weinstein explained plaintiff's contention that "he was ordered to cast off a mooring line from the dock by himself and he was ordered to stand on the bulwark." 4 Through those instructions, the jury could fully understand the factual dispute between plaintiff and...

To continue reading