Fashauer v. New Jersey Transit Rail Operations, Inc.

• Citation: 57 F.3d 1269
• Decision Date: 01 August 1995
• Docket Number: No. 94-5523,94-5523
• Parties: Thomas FASHAUER, Jr., Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1269

57 F.3d 1269

Thomas FASHAUER, Jr., Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC.

No. 94-5523.

United States Court of Appeals Third Circuit.

Argued May 23, 1995.

Decided June 29, 1995.

Sur Petition For Rehearing Aug. 1, 1995.

Marvin I. Barish (argued), Marvin I. Barish Law Offices, Philadelphia, PA, for appellant.

Cheryl A. Maccaroni and Joanne Stipick (argued), Deputy Attys. Gen., Trenton, NJ, for appellee.

Before: GREENBERG, ROTH and ALDISERT, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. Introduction, Factual Background and Procedural History

This appeal arises in a Federal Employers' Liability Act (FELA) case in which the employer is New Jersey Transit Rail Operations, Inc. To understand the germane facts one must in the first instance know a bit about New Jersey Transit train design. On New Jersey Transit trains, or at least on the one involved here, cars are connected to each other by vestibules, which are enclosed areas located just outside the passenger seating compartments of each car. Thus, each car contains two vestibules, one at each end. Each vestibule, in turn, contains three doors--one leading into the passenger compartment, the other two leading out of the train onto the station platform. ¹ Railroad employees and passengers walk through the vestibules to pass from one car to the next, and to exit from the car to the platform and vice versa. While anyone may open the doors leading into the passenger compartments, railroad employees open and close the doors to the station platform by operating mechanisms located within the vestibule.

On March 10, 1992, appellant Thomas Fashauer was performing his usual duties as brakeman on a New Jersey Transit train en route from Lindenwold, New Jersey, to Atlantic City, New Jersey. These duties included entering the vestibule, opening and closing the doors leading from the train to the station platform, and signaling the engineer that the platform was clear and that the train could depart. He began work in Atlantic City at 1:00 p.m. and made several round trips.

It was raining heavily, and the rug on the vestibule floor was soaked when the train arrived at the Atco station on the last run of the day. Fashauer opened the doors, exited the train, and, after checking the stairs for passengers running late, returned to the train and signaled the engineer to leave. Fashauer then shut the doors. The train jerked twice, once upon leaving the station and once soon after. Fashauer was not holding on to the handrails at the time, and he slipped on the wet floor, striking his left shoulder against the wall. He testified that he was in agony at the time, and he immediately reported the incident to the conductor. At the conductor's behest, Fashauer rested for the remainder of the trip. He suffered serious injuries to his shoulder as a result of the accident.

On August 21, 1992, Fashauer filed a complaint against New Jersey Transit in the United States District Court for the District of New Jersey, alleging that his injury was proximately caused by New Jersey Transit's negligence. Specifically, the complaint charged New Jersey Transit with negligently maintaining certain seals between the cars, and further alleged that the defective seals allowed rain to seep into the vestibule, creating a dangerous slippery condition on a rainy day. He sought relief pursuant to the FELA, which governs actions by railroad employees against railroads for damages arising out of job-related injuries.

The case was tried between March 7, 1994, and March 16, 1994. New Jersey Transit defended against Fashauer's claims by presenting evidence that the seals were not defective, the slippery condition was purely the result of the rainy weather, and Fashauer failed to act with due care while walking through the vestibule. On March 16, the jury returned a verdict finding that New Jersey Transit was negligent and that its negligence contributed to the injuries. It The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1331. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We will affirm.

awarded Fashauer damages of $71,320 in past lost earnings and $100,000 for pain and suffering. However, the jury awarded nothing for future lost earnings. Finally, the jury determined that Fashauer was 50% responsible for his injuries. Under FELA's pure comparative negligence provisions, this finding meant that the district court reduced Fashauer's damages by 50%. Unhappy with the 50% reduction and the jury's refusal to award damages for lost future earnings, Fashauer moved for a new trial. When that motion was denied on July 18, 1994 (in an Opinion and Order filed the next day), he timely filed this appeal.

II. Discussion

Most of the questions on this appeal involve the district court's denial of Fashauer's jury charge requests. Generally, "[t]he standard of review for the district court's ruling on points for charge is ... abuse of discretion." Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 922 (3d Cir.1986). Where, as here, a party contends that the charge as given states an incorrect legal standard, "we will review the charge as a whole in the light of the evidence to determine if it fairly and adequately submitted the issues to the jury and we will reverse if the instructions were capable of confusing and thereby misleading the jury." Griffiths v. CIGNA Corp., 988 F.2d 457, 462 (3d Cir.) (citing Limbach Co. v. Sheet Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n. 15 (3d Cir.1991) (in banc)), cert. denied, --- U.S. ----, 114 S.Ct. 186, 126 L.Ed.2d 145 (1993). We address Fashauer's arguments in turn.

A. Assumption of Risk v. Contributory Negligence

The most significant question raised on this appeal is whether the district court erred by denying Fashauer's request to charge the jury that assumption of the risk is not a defense in a FELA action. Fashauer timely requested such a charge, ² and objected to the district court's charge, which declined to give it. Fashauer essentially contends that the district court's instructions inadvertently permitted the jury to reduce his recovery based on the fact that he continued to perform his job despite his knowledge that he was encountering a dangerous condition. He further contends that under the FELA the jury should not have been allowed

to reduce his recovery because he assumed the risk of injury.

1. Introduction

Congress passed the Federal Employers' Liability Act of 1906 in part to eliminate barriers common law courts erected to protect railroad companies and other common carriers from liability for their employees' workplace injuries. See Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58-59, 63 S.Ct. 444, 447, 87 L.Ed. 610 (1943). The FELA "substituted comparative negligence for the strict rule of contributory negligence," id. at 62, 63 S.Ct. at 448-49, but, as interpreted by the Supreme Court, originally allowed an employer to interpose assumption of the risk as a complete defense to the employer's liability. See Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 503, 34 S.Ct. 635, 639, 58 L.Ed. 1062 (1915). The only statutory exception to this occurred "in ... case[s] where the violation by [a] common carrier of [a] statute enacted for the safety of employees contributed to the injury of such employee." Id. at 502-03, 34 S.Ct. at 639. Following widespread criticism of its retention of the assumption of risk defense, Congress amended the FELA in 1939 to eliminate the defense in cases where the injury "resulted in whole or in part from the negligence of any of the officers, agents, or employees" of the employer. 45 U.S.C. Sec. 54. Interpreting the amendments soon thereafter, the Supreme Court held that "every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment," see Tiller, 318 U.S. at 57, 63 S.Ct. at 446, and that "cases tried under the Federal Act [are] to be handled as though no doctrine of assumption of risk had ever existed." Id. at 64, 63 S.Ct. at 450. The Court warned that " '[u]nless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name.' " Id. at 58, 63 S.Ct. at 447 (citation omitted).

2. Assuring Assumption of Risk Stays Out

In light of the 1939 amendment and Tiller 's interpretation of it, because contributory negligence on the plaintiff's part reduces his or her damages, while assumption of risk does not, courts have the delicate job of separating out evidence on one theory from evidence on the other. See Victor E. Schwartz, Comparative Negligence, Sec. 9-4(a)(1) at 202 (3d ed. 1994) ("[F]acts constituting implied assumption of risk have no materiality except as they might also constitute contributory negligence."). Some courts have guarded against jury confusion by doing what Fashauer suggests the court should have done here: describing assumption of risk to the jury and instructing it not to reduce the plaintiff's recovery on that basis. See Koshorek v. Pennsylvania R.R. Co., 318 F.2d 364, 370 (3d Cir.1963) (reversible error for district court not to instruct on assumption of risk); Jenkins v. Union Pacific R.R. Co., 22 F.3d 206, 212 (9th Cir.1994) (same). But other courts have expressed wariness about instructing the jury on a legal doctrine not in the case. As one court has put it, "the statutory elimination of the defense of assumption of risk, when read to the jury in FELA cases where that 'defense' has been neither pleaded nor argued, serves only to obscure the issues in the case." Casko v. Elgin, Joliet and Eastern Ry. Co., 361 F.2d 748, 751 (7th Cir.1966). The Court of Appeals for the Second Circuit, relying on the proposition that " 'it is a mistake to give instructions on subjects not directly in issue in a case,' " DeChico v. Metro-North Commuter R.R., 758 F.2d 856, 861 (2d Cir.1985) (citation omitted), has cautioned that "[a]n assumption...