Sinclair v. Long Island R.R., 302

• Citation: 985 F.2d 74
• Decision Date: 03 February 1993
• Docket Number: No. 302,D,302
• Parties: James SINCLAIR, Plaintiff-Appellee, v. LONG ISLAND RAILROAD, Defendant-Appellant. ocket 92-7532.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 74

985 F.2d 74

James SINCLAIR, Plaintiff-Appellee, v. LONG ISLAND RAILROAD, Defendant-Appellant.

No. 302, Docket 92-7532.

United States Court of Appeals, Second Circuit.

Argued Oct. 14, 1992.

Decided Feb. 3, 1993.

Steven J. Ahmuty, Jr., New York City (Bower & Gardner, New York City, of counsel), for defendant-appellant.

Francis X. Casale, Jr., Melville, NY, for plaintiff-appellee.

Before: ALTIMARI and McLAUGHLIN, Circuit Judges, and SPATT, District Judge. ^*

McLAUGHLIN, Circuit Judge:

This is an action under the Federal Employers' Liability Act ("FELA" or the "Act"), 45 U.S.C. §§ 51-60 (1988). The defendant Long Island Railroad ("LIRR" or "Railroad") appeals from (1) a judgment for plaintiff James Sinclair, an employee of the LIRR, entered after a jury trial in the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge ), and (2) an order denying LIRR's motion for judgment as a matter of law after trial or a new trial on all the issues.

The LIRR contends that the district court erred when it (1) imputed notice of a defective condition to the LIRR as a matter of law, (2) refused to instruct the jury on the requirement of notice, and (3) erroneously charged the jury on damages. We agree on all points and, accordingly, reverse and remand for a new trial.

BACKGROUND

In 1986, while walking in a dark train tunnel, Sinclair fell over a depression in a bent trap door covering a manhole. Sinclair immediately experienced "sharp low back pains" and could not stand straight or walk normally. He was out of work for almost three weeks, during which time he was treated and examined twice by a private physician and three times by LIRR physicians.

Sinclair returned to work but, during 1987, was often given light duty because of his back pain. From July to December 1987, while continuing to work, Sinclair was treated by a chiropractor. At Sinclair's request, LIRR then placed him on its own "Work Hardening" program, a physical therapy regimen, which he attended three times a week through January 1988. Between February 1988 (when he left the program) and July 1988, Sinclair did not receive any treatment for his back.

On July 5, 1988, Sinclair was lifting a 120-pound third-rail drill with two co-workers when he felt back pain. According to Sinclair, this pain was no sharper or different than the pain he had felt constantly since 1986. He immediately stopped working and reported this incident to a LIRR supervisor. From July 7, 1988 until early 1989, an orthopedist treated Sinclair with medication, physical therapy, and a back brace. Sinclair continued to work and to visit the LIRR Medical Department when he was unable to work.

In February 1989, a neurosurgeon began treating Sinclair. From March 1989 to November 1989, Sinclair did not work, but did attend physical therapy three times a week. At the direction of LIRR physicians, Sinclair stopped that therapy and resumed the "Work Hardening" program. In November 1989, the LIRR instructed Sinclair to return to work, which he did, working from November 1989 to June 1990.

In May 1990, a Magnetic Resonance Image test ordered by his neurosurgeon revealed a herniated disc and Sinclair underwent a laminectomy on August 30, 1990. Except for a two-week attempt in June 1991, Sinclair never worked after June 1990 but again engaged in physical therapy and attended the "Work Hardening" program. At the time of his March 1992 trial, Sinclair was still employed by LIRR and receiving sick pay.

Sinclair commenced this FELA action in September 1989, alleging a single theory of liability: the LIRR breached its duty to exercise reasonable care in providing a safe workplace. The claim was limited to the September 1986 incident with the manhole cover, and the parties agree that, as a matter of law, the LIRR was not liable for any negligence relevant to the third-rail drill accident of July 5, 1988.

The only unsafe condition alleged in his complaint was the defective condition of the manhole cover of which Sinclair claimed the LIRR had notice. He fine tuned this claim in his answers to LIRR's interrogatories:

(a) Actual notice is claimed in that the [LIRR], its agents, servants and/or employees created the conditions complained of.

(b) Constructive notice is claimed in that the condition complained of existed for an unreasonably long period of At the close of the case, the LIRR moved for judgment as a matter of law based on Sinclair's failure to prove notice. The district court denied this motion without comment; then the court ruled that an instruction on notice requested by the LIRR was unnecessary, "in view of the fact this happened exclusively on railroad property and it was a metal door that was out of line within a tunnel and enclosed property of the railroad, and there is no proof whatsoever that some stranger or trespasser had anything to do with it...." The court also refused to instruct the jury that foreseeability of harm is an essential element of a FELA claim.

                time prior to the occurrence at issue.   It is not presently known how long the condition existed prior to September 11, 1986
                

The jury returned a $1,025,000 verdict for Sinclair to be reduced, however, by the 25% attributable to his own fault. The LIRR moved for (1) a judgment as a matter of law, arguing that there was no proof from which a jury could reasonably find that the LIRR had actual or constructive notice of the manhole condition, or (2) in the alternative, a new trial, because of the court's refusal to instruct the jury on the requirement of foreseeability and notice in FELA cases. The LIRR also contended that the verdict was excessive and speculative and, moreover, that the district court erred in failing (1) to charge the jury not to award economic damages in the form of future lost earnings, and (2) to define "permanent disability."

Denying LIRR's post-trial motion, the district court determined "that notice to defendant can be imputed where plaintiff alleged, and the jury found, that he tripped over a set of trap doors.... Therefore, it was unnecessary to charge the jury on the question of notice." The court also rejected LIRR's contentions that the jury should have been specifically instructed that its award for "permanent disability" should not include compensation for future lost earnings, and that the damage award was excessive.

DISCUSSION

The LIRR argues that the district court erred in denying its trial motion for judgment as a matter of law and its post-trial renewal of that motion. Its core point is that Sinclair never proved that the LIRR had actual or constructive notice of the bent trap door.

Even if it is not entitled to judgment, it urges, alternatively, that a new trial is required because of the district court's failure to instruct the jury on notice as required in FELA cases. The Railroad also seeks a new trial on the issue of damages which it claims were the result of misleading jury instructions.

Liability

We have held that "FELA is not an insurance program." O'Hara v. Long Island R.R., 665 F.2d 8, 9 (2d Cir.1981) (per curiam). Rather, it makes railroads liable to employees who suffer "injury or death resulting in whole or in part from the negligence of ... [the] carrier, or by reason of any defect or insufficiency, due to its negligence, in its ... roadbed ... or other equipment." 45 U.S.C. § 51. The Act requires an employer to provide its employees with a reasonably safe place to work, Shenker v. Baltimore & O.R.R., 374 U.S. 1, 7, 83 S.Ct. 1667, 1671, 10 L.Ed.2d 709 (1963), and this includes the duty to maintain and inspect work areas. Salamon v. Motor Vessel Poling Bros. No. 11, Inc., 751 F.Supp. 343, 345 (E.D.N.Y.1990). The scope of this ongoing duty is clear: "An employer breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform and protect its employees." Gallose v. Long Island R.R., 878 F.2d 80, 84-85 (2d Cir.1989) (citing DeChico v. Metro-North Commuter R.R., 758 F.2d 856, 862 (2d Cir.1985); Lindauer v. New York Central R.R., 408 F.2d 638, 640 (2d Cir.1969)).

While there is "a considerably more relaxed standard of proof" for determining negligence in FELA cases, Lang v. Metro-North Commuter R.R., 1988 WL 80171, at * 1 (S.D.N.Y. July 21, 1988)(citing Rogers v Here, Sinclair sought to impute notice to the LIRR, as a matter of law, simply because the Railroad "exclusively owned, operated, maintained and controlled" the train tunnel. The district court adopted Sinclair's sweeping notion of liability and gave no instruction on notice. After the verdict, in denying LIRR's post-trial motions, the district court apparently concluded that some kind of notice had to be proven; it found the requisite notice by virtue of the Railroad's duty to inspect and maintain the tunnel in a reasonably safe condition. This was error.

                Missouri Pacific R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)), and "a strong federal policy in favor of letting juries decide [these] cases," O'Hara, 665 F.2d at 9, FELA does not make an employer strictly liable for workplace injuries and, therefore, requires that "[c]laimants must at least offer some evidence that would support a finding of negligence."  Id.;  see also Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir.1987) ("Plaintiffs are ... required to prove the traditional common law elements of negligence:  duty, breach, foreseeability, and causation.").   Significantly, the essential element of reasonable foreseeability in FELA actions, Gallick v. Baltimore & O.R.R., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963), requires proof of actual or constructive notice to the employer of the defective condition that caused the injury.   See Gallose, 878 F.2d at 85 ("The catalyst which ignites [the duty to provide a safe workplace] is

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