Butynski v. Springfield Terminal R.Co.

• Decision Date: 22 January 2010
• Docket Number: No. 09-1164.,09-1164.
• Citation: 592 F.3d 272
• Parties: Donald J. BUTYNSKI, Plaintiff, Appellant, v. SPRINGFIELD TERMINAL RAILWAY COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

592 F.3d 272 Donald J. BUTYNSKI, Plaintiff, Appellant,
v.
SPRINGFIELD TERMINAL RAILWAY COMPANY, Defendant, Appellee. No. 09-1164. United States Court of Appeals, First Circuit. Heard November 4, 2009. Decided January 22, 2010.

[592 F.3d 274]

Thomas Lesser, with whom Lesser, Newman & Nasser was on brief, for appellant.

Karen M. Thursby, with whom Herlihy, Thursby & Herlihy, LLP was on brief, for appellee.

Before: LYNCH, Chief Judge, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

This is a personal injury action brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60. The jury found the defendant negligent but reduced the award of damages substantially based on a finding of contributory negligence. The plaintiff appeals, posing claims of both instructional error and evidentiary insufficiency. In the end, however, all roads lead to Rome, and a single exegesis suffices to show that the record contains evidence adequate to permit jury consideration of the disputed issue (thus defeating the claim of instructional error) and to ground a finding on that issue (thus defeating the claim of evidentiary insufficiency). Accordingly, we answer both questions at one fell swoop and affirm the judgment below.

We rehearse the facts as the jury could have found them, mindful that "when the losing party protests the sufficiency of the evidence, the court of appeals must take both the facts and the reasonable inferences therefrom in the light most hospitable to the jury's verdict." Correa v. Hosp. San Francisco, 69 F.3d 1184, 1188 (1st Cir.1995).

Defendant-appellee Springfield Terminal Railway Co. (STRC), an employer subject to the FELA, employed plaintiff-appellant Donald J. Butynski for nearly a quarter of a century as a trackman. The plaintiff's base of operations was the STRC rail yard in East Deerfield, Massachusetts, but his job description called for him to work as needed along the STRC's rail lines throughout western Massachusetts.

On December 11, 2003, while part of a crew assigned to repair tracks in Otter River, the plaintiff slipped and fell. In trying to break his fall, he fractured his wrist. His injuries were disabling and spelled the end of his career with STRC.

For some two weeks before the plaintiff's fall, Otter River had experienced rain, snow, and frigid temperatures. On the day of the incident, the work site was icy (and, therefore, slippery). That condition was open and obvious.

In the winter, icy conditions are common fare on the STRC's lines. For that reason, STRC routinely furnishes its track-repair personnel with ice creepers—safety devices, capable of being strapped to work boots, which contain embedded metal cleats designed to improve the wearer's footing on snow and ice. Ice creepers are generally sturdy, and once STRC furnishes a pair to a trackman, there is no set schedule for periodic replenishment. If the trackman needs new ice creepers because his are worn out or lost, it is his responsibility to request replacements.

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The plaintiff's foreman testified that, given the slippery conditions, wearing ice creepers was an appropriate safety measure at the time and place of the incident. Nevertheless, the plaintiff did not don ice creepers that day because his were stretched out and no longer fit properly. He admitted that he knew, months earlier, that his ice creepers were shot. He said that he unsuccessfully requested replacements on approximately four occasions during the fall of 2003. His foreman confirmed that the plaintiff had asked for new ice creepers.

STRC denied that any such requests had been made. Various supervisory personnel at the rail yard testified that they could not recall the plaintiff either complaining about the condition of his ice creepers or seeking new ones. The railroad had no record of any such request.

Relatedly, there was no shortage of ice creepers in stock during 2003. For example, one supervisor testified that, prior to December 11, the rail yard had received seventy-eight pairs of ice creepers (some large and some extra-large) and that ice creepers were in adequate supply. STRC's witnesses stated that ice creepers were typically available upon request and, in the event that ice creepers were not immediately on hand to satisfy a request, new ones normally would be provided within a week.

In its answer to the complaint, STRC denied liability and pleaded contributory negligence as an affirmative defense. Consistent with this pleading, it advised the court in a pretrial submission that it would press for a jury instruction on that issue. At the close of all the evidence, STRC reaffirmed that it desired an instruction on this defense. The plaintiff objected to any instruction on contributory negligence and moved for judgment as a matter of law with respect to that issue. The district court viewed contributory negligence as a live controversy and therefore denied the motion for judgment as a matter of law. Then, over the plaintiff's objection, the court instructed the jury, in relevant part:

Contributory negligence is fault on the part of the person injured, which cooperates in some degree with the negligence of another, and so helps to bring about the injury. By the defense of contributory negligence, defendant in effect alleges that, even if defendant's negligence was one of the causes of plaintiff's injuries, plaintiff himself, by his own failure to use ordinary care under the circumstances for his own safety, also contributed one of the causes of any injuries and damages he may have suffered. It was plaintiff's duty on December 11, 2003, to use reasonable care to avoid or minimize risk and possible injury to himself.

The jury found STRC liable and fixed the plaintiff's damages at $511,886. It then found the plaintiff contributorily negligent and allocated fault sixty percent to him and forty percent to STRC. Accordingly, the jury returned a verdict in favor of the plaintiff for $204,754.

The plaintiff seasonably renewed his motion for judgment as a matter of law with respect to the contributory negligence defense. See Fed.R.Civ.P. 50(a)-(b). The district court denied the renewed motion, finding sufficient evidence of contributory negligence to support the jury's determination. This timely appeal ensued.

In this venue, the plaintiff contends that the trial court should not have charged the jury on contributory negligence and that, in all events, the finding of contributory negligence was bereft of any evidentiary foundation. Although these are framed as separate assignments of error, they are for all practical purposes one and the same. The plaintiff's claim of instructional error does not take issue with the form or phrasing

592 F.3d 276

of the jury instruction but, rather, posits that the evidence did not warrant giving such an instruction at all. This is exactly the same rationale on which his argument regarding the motion for judgment as a matter of law rests.

The nature of the applicable standards of review illustrates why, in this instance, we can treat these two claims of error in a single exegesis. We review de novo a decision to instruct the jury on a particular issue, see SEC v. Happ, 392 F.3d 12, 28 (1st Cir.2004), asking whether the evidence, viewed in the light most favorable to the proponent of the instruction, justifies jury consideration of the underlying issue. See Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir.1997). Similarly, we review de novo the denial of a motion for judgment as a matter of law, Correa, 69 F.3d at 1191, asking whether the evidence, viewed in the light most favorable to the nonmovant, warrants jury consideration. Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 75 (1st Cir.2001). We will not overturn either the lower court's decision to instruct on an issue or its eschewal of judgment as a matter of law unless, at a bare minimum, the record reveals an insufficient evidentiary basis for the decision. See, e.g., Davis v. Rennie, 264 F.3d 86, 108-09 (1st Cir.2001) (jury instruction); Zimmerman, 262 F.3d at 75 (judgment as a matter of law).

Here, the congruence of these standards is patent. In the last analysis, each claim of error depends on a showing that the record contains an insufficient evidentiary predicate to justify jury consideration of the contributory negligence defense. Thus, for ease in exposition, we proceed to discuss both claims of error under the carapace of the claim of instructional error.¹

Evaluation of that claim starts with the statutory scheme. FELA creates a federal cause of action for injured workers in the railroad industry. 45 U.S.C. § 51. Congress has specified the rudiments of the right of action in the statute itself. Those rudiments include a low threshold for proving fault on the employer's part (and, thus, a low threshold for liability). See id.; Stevens v. Bangor & Aroostook R.R. Co., 97 F.3d 594, 597-98 (1st Cir. 1996). Contributory negligence is available as a defense. 45...