Borden, Inc. v. Florida East Coast Ry. Co.

• Decision Date: 30 September 1985
• Docket Number: No. 84-3165,84-3165
• Citation: 772 F.2d 750
• Parties: , 19 Fed. R. Evid. Serv. 33 BORDEN, INC., Plaintiff-Appellant, Cross-Appellee, and Aetna Casualty & Surety Company, Plaintiff-Cross-Appellee, v. FLORIDA EAST COAST RAILWAY COMPANY, John Spak & William O. Harrison, Defendants-Appellees, and Matthew W. Frost, Marcus W. Frost, and Jane W. Frost, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 750

772 F.2d 750

3 Fed.R.Serv.3d 1360, 19 Fed. R. Evid. Serv. 33

BORDEN, INC., Plaintiff-Appellant, Cross-Appellee and Aetna Casualty & Surety Company, Plaintiff-Cross-Appellee, v. FLORIDA EAST COAST RAILWAY COMPANY, John Spak & William O Harrison, Defendants-Appellees and Matthew W. Frost, Marcus W. Frost, and Jane W. Frost Defendants-Appellees, Cross-Appellants.

No. 84-3165.

United States Court of Appeals, Eleventh Circuit.

Sept. 30, 1985.

Christopher C. Skambis, Orlando, Fla., for plaintiff-appellant, cross-appellee.

J.W. Prichard, Jacksonville, Fla., F.E.C.R.C.

Terrence L. LaBelle, Ft. Lauderdale, Fla., for Frosts.

Adolfo del Castillo, Miami, Fla., for Aetna Cas. & Sur. Co.

Appeals from the United States District Court for the Middle District of Florida.

Before VANCE and ANDERSON, Circuit Judges, and HENLEY ^*, Senior Circuit Judge.

VANCE, Circuit Judge:

On February 12, 1979, a southbound Florida East Coast ("FEC") freight train derailed and ran into an ice cream freezer/warehouse owned by Borden, causing extensive damage. The train derailed because John Spak, William Harrison and Matthew Frost tampered with the track's switching and signalling systems and caused the train to be shunted without warning from the main track onto a short spur track. The train ran off the spur track, across a road, over an adjacent lot, and into the warehouse. Borden and Aetna ¹ filed suit against FEC, Spak, Harrison, and Frost. Frost's parents were also named as defendants pursuant to Fla.Stat. Sec. 741.24 because Frost was a minor when the accident occurred.

Borden and Aetna alleged that FEC had acted negligently by maintaining switching and signalling systems which it knew were particularly vulnerable to the type of vandalism which led to this accident. The complaint also contained a punitive damages claim against FEC alleging that the railroad's continued use of its switching and signalling systems despite prior acts of vandalism was wanton and willful and done with reckless disregard for the safety of others. ² In addition, the complaint contained negligence and intentional tort claims against Spak, Harrison and Matthew Frost, and a statutory claim against Frost's parents, Jane and Marcus Frost.

The signalling system employed by FEC at the time of the accident is commonly known as the "block" signal system. At the beginning of each "block" of track there is a signalling device like a traffic light which displays three different colors or "aspects." Green means that the block is clear and that the train may proceed at its maximum permitted speed. Red is the most restrictive aspect and means that a train should immediately slow to fifteen miles per hour or come to a complete stop. Two types of track circuits can be used to accomplish the changes in the aspects--the shunt circuit or the shunt and break circuit. At the time of the accident, FEC was using the shunt circuit device on the switching and signalling devices in question.

Under normal circumstances, a shunt circuit will cause a block signalling device to display a red aspect when a switch is thrown into the reverse position. If the two wires nearest the switch are cut after the switch is put in the reverse position, however, the block signalling device will display a green aspect, called a "false proceed." The false proceed indicates that the track is clear even though it may not be. In the February 12, 1979 incident Spak, Harrison and Matthew Frost cut the two wires nearest the switch after placing the switch in the reverse position, causing a false proceed signal to be displayed on the spur track. Because the block signal was green, the train did not attempt to slow down until the conductor realized the train had been shunted onto a short spur track. By then, it was too late to stop.

Borden introduced evidence at trial which suggested that the shunt and break circuit is safer because if the two wires nearest the switch are cut after the switch is put in the reverse position, the block signalling device automatically displays a red aspect. Borden contended that if FEC had been using this type of circuit on February 12, 1979, the accident would not have occurred because the block signalling device would have displayed a red aspect and the train would have been alerted to slow down or stop. Borden also introduced evidence which showed that the FEC was using the shunt and break circuit on some of its switching and signalling devices on other tracks at the time of the accident.

At trial, the plaintiffs also attempted to show that FEC was negligent because FEC knew its switching and signalling systems were susceptible to the type of vandalism involved in this case. As proof that FEC could have foreseen that the system would be vandalized in this way, Borden attempted on four separate occasions during the trial to introduce evidence of a similar occurrence which took place on August 31, 1978, on the same track at a switch six-tenths of a mile away. The train involved in the August 31, 1978 incident did not derail because it was travelling in the opposite direction from the way the tracks had been switched. The trial court refused to admit the evidence on all four occasions.

The jury found no negligence on the part of FEC, but returned a verdict against Spak, Harrison, and Matthew, Jane and Marcus Frost. On the special verdict form, the jury found Spak eighty percent responsible for the accident, Harrison ten percent responsible and Matthew Frost ten percent responsible. The jury set Borden's damages at $217,141.00 and Aetna's damages at $27,209.66.

In entering the final judgments, the district court apportioned the damages in accordance with the percentages of fault attributed to each of the defendants by the jury. This resulted in judgments against each of the defendants as follows: Spak to Borden for $173,712.80 and to Aetna for $21,767.73; Harrison to Borden for $21,714.10 and to Aetna for $2,727.97; and Matthew, Jane and Marcus Frost to Borden for $21,714.10 and to Aetna for $2,727.97.

On appeal, Borden alleges that the district court erred in refusing to allow it to introduce evidence of the prior similar incident on August 31, 1978; in denying its motion to compel as to certain of its requests for production; and in apportioning the damages in the final judgments in accordance with jury's apportionment of fault. On cross-appeal, Matthew, Jane and Marcus Frost allege that the trial court erred in allowing Aetna to amend its complaint at the close of the trial to conform with the evidence. Marcus and Jane Frost also contend the district court erred in entering judgments against them in excess of $2500. ³ Aetna failed to perfect a timely notice of appeal and is before this court as a cross-appellee only.

The parties agree that one of the issues on Borden's appeal and one of the issues on the Frosts' cross-appeal can be disposed of summarily. First, it was plain error for the trial judge to apportion the damages according to the jury's assessment of the percentage of fault attributable to each defendant. Under Florida law, joint tortfeasors are jointly and severally liable for all damages recoverable by the plaintiff. See, e.g., Lincenberg v. Issen, 318 So.2d 386 (Fla.1975); Moore v. St. Cloud Utilities, 337 So.2d 982, 984 (Fla.Dist.Ct.App.), cert. denied, 337 So.2d 809 (1976). See also Fla.Stat. Sec. 768.31. On remand, the trial court should enter judgments against Spak, Harrison, and Matthew Frost making each jointly and severally liable for the entire amount of damages recoverable by Borden.

The parties also agree that the district court erred in entering judgments against Jane and Marcus Frost in excess of $2500. Their liability arises pursuant to Florida statute section 741.24. The statute allows a party whose property is maliciously or willfully destroyed by a minor to recover damages not in excess of $2500 from the minor's parents, provided certain conditions are met. ⁴ The parties stipulated prior to trial that Jane and Marcus Frost's maximum potential liability was $2500 to each plaintiff. The district court erroneously entered judgments against Jane and Marcus Frost in excess of this amount. On remand, the district court should revise the judgments so that Jane and Marcus Frost's maximum liability to each plaintiff is $2500, plus taxable court costs and interest, computed from the date of the previous judgment.

The primary issue presented by Borden on appeal is whether the district court erred in refusing to allow Borden to introduce evidence of the August 31, 1978 vandalism incident which occurred on the same railroad line at a switch six-tenths of a mile away from the switch involved in this accident. Borden sought to introduce the evidence to show that FEC was aware of the switching and signalling systems' vulnerability to vandalism and therefore in a position to foresee the occurrence of an accident if appropriate measures were not taken. FEC objected and offered two reasons for excluding the evidence. First, FEC argued that the two incidents were not similar enough to warrant admission of the August 31, 1978 incident as a prior similar occurrence. The railroad stressed that the incidents involved different switches at different locations, occurred almost six months apart and had dissimilar results. Second, FEC argued that because the vandals involved and the circumstances surrounding the August 31, 1978 incident were unknown, admission of the evidence would be unduly prejudicial because FEC would not be able to distinguish the two events. The trial judge sustained FEC's objection, apparently finding that Borden had failed to show sufficient factual similarities between the two incidents to warrant the evidence's admission. ⁵

Although this is a diversity of citizenship case in which Florida law provides the substantive law, the admissibility of evidence in federal courts is governed by federal law. See, e.g., Garcia...