Jones v. Spentonbush-Red Star Co.

• Decision Date: 14 September 1998
• Docket Number: SPENTONBUSH-RED,Docket No. 97-9586
• Citation: 1999 A.M.C. 324,155 F.3d 587
• Parties: Auther JONES, Plaintiff-Appellant, v.STAR COMPANY, Defendant-Appellee. Second Circuit
• Court: U.S. Court of Appeals — Second Circuit

Page 587

155 F.3d 587

1999 A.M.C. 324

Auther JONES, Plaintiff-Appellant, v. SPENTONBUSH-RED STAR COMPANY, Defendant-Appellee.

Docket No. 97-9586.

United States Court of Appeals,Second Circuit.

Argued May 18, 1998.

Decided Sept. 14, 1998.

Paul S. Edelman, Kreindler & Kreindler, New York, New York, for Plaintiff-Appellant.

James M. Hazen, Hill, Betts & Nash LLP, New York, New York, for Defendant-Appellee.

Before: WINTER, Chief Judge, CARDAMONE, Circuit Judge, and CARMAN ^*, Judge.

CARDAMONE, Circuit Judge:

This appeal by Auther Jones, a seaman employed as a deckhand aboard defendant's tugboat, is from a judgment entered in the United States District Court for the Southern District of New York before Judge Sidney H. Stein. While plaintiff Jones was under defendant's employ, he suffered an eye injury and subsequently sued defendant under the Jones Act and general maritime law, asserting claims for lost earnings, pain and suffering, and for maintenance and cure. The jury found for plaintiff, awarding him damages for his lost wages and for past pain and suffering. The trial judge set aside the verdict for lost wages and also reduced Jones' remaining damages under a theory of comparative negligence and denied him pre-judgment interest.

This is that uncommon case where plaintiff suffers an injury for which defendant is liable yet may not recover damages for lost wages due to a lack of proof showing that such loss was caused by his injury. Nor may plaintiff receive pre-judgment interest on his damages for pain and suffering because the actions he took in connection with this lawsuit were untimely. The more difficult issue we also must address is what effect should be given to a conceded violation by defendant of an Occupational Safety and Health Administration (OSHA) regulation. Plaintiff suggests such violation should, among other things, constitute negligence per se. For reasons that follow, we do not think Congress intended such a dogmatic use of an OSHA violation, and therefore decline to adopt that view.

FACTS

Spentonbush-Red Star Co. (defendant or Spentonbush) operates a tugboat in New York Harbor named the CHAPLAIN. In March 1992 it hired Auther Jones to work as a junior deckhand. Prior to his dismissal, Jones had been promoted to senior deckhand. On June 21, 1993 plaintiff suffered an accident while operating a metal grinding wheel used to chip away paint and rust from the exterior of the tugboat's cabin bulkhead. Although Jones wore safety goggles, the grinding wheel itself had no safety guard, and a piece of metal debris from the wheel flew into the cornea of his left eye. After a hospital emergency room doctor referred Jones to a specialist, Jones' eye injury required medical treatment at several different clinics to remove all of the metal and heal the abrasion of his eye. Spentonbush provided transportation, paid his medical expenses and allowed him to sleep at headquarters, while he worked taking messages during his recovery. Plaintiff filed a request for medical treatment/evaluation with defendant on the date of his injury. His supervisor prepared an injury report the next day.

After several days of recuperation, Jones rejoined the tugboat and resumed his work as a deckhand. In a report dated July 6, 1993, he received a poor performance evaluation for his time aboard the vessel since June 9, 1993, and less than three weeks after the accident, on July 7, 1993, defendant terminated Jones' employment and benefits. Unable to obtain work aboard other tugboats in New York Harbor, Jones eventually went to Louisiana where he held various jobs on shore as a repairman and inspector, which paid him substantially less than what he had earned as a deckhand. He continues to suffer from headaches, blurred vision and night vision problems as a result of the accident.

Plaintiff commenced the present action in the Southern District of New York on June 12, 1996. His complaint alleged four separate causes of action. First, plaintiff claimed, pursuant to the Jones Act, 46 U.S.C.App. § 688 (1994), that defendant was negligent in furnishing him with a grinding wheel lacking a safety guard. Second, he asserted defendant violated its duty to outfit him with seaworthy equipment under general maritime law. With respect to these two claims, Jones sought damages for past and future pain and suffering and lost wages for the difference between his income as a deckhand and the amount he earned at his odd jobs in Louisiana. Third, Jones claimed defendant wrongfully refused to pay maintenance and cure for his injury. Finally, Jones believed he was wrongfully terminated in anticipation of his initiating legal action.

A jury trial was held on October 20 and 21, 1997 before Judge Stein. At trial, plaintiff proffered testimony from a maritime expert that the tugboat, as an uninspected vessel, was subject to the regulations of the Occupational Safety and Health Administration and that it was a violation of OSHA to operate a metal grinder without a guard. See 29 C.F.R. § 1910.243 (1997). Both parties agreed that the applicable OSHA regulation should be read to the jury. Judge Stein complied and included the regulation's relevant provisions as an insert with the charge. To bolster his claim for lost wages, Jones submitted his relevant income tax returns as proof of his income for the years preceding and following his accident.

Plaintiff introduced no evidence to establish his claim for wrongful termination and made no request that the claim be submitted to the jury. We therefore deem that claim abandoned. Further, at the close of evidence, defendant moved pursuant to Fed.R.Civ.P. 50(a) for judgment as a matter of law on plaintiff's claim for maintenance and cure. The trial court granted the motion because no evidence was produced upon which a jury could make such an award. With respect to plaintiff's remaining claims for negligence and unseaworthiness, the defendant also moved for judgment as a matter of law on the issue of lost earnings, urging that plaintiff failed to show he was unable to return to work as a deckhand due to his eye injury. This motion was denied, and the lost income issue was submitted to the jury.

Judge Stein provided the jury with a special verdict form and instructed them on the necessary elements of plaintiff's negligence and unseaworthiness causes of action. The jury found not only that defendant was negligent under the Jones Act and the grinding wheel was unseaworthy under general maritime law, but also that these factors caused plaintiff's eye injury. It valued plaintiff's lost earnings at $62,575 and his past pain and suffering at $10,000, but awarded nothing for future pain and suffering. The jury then performed a comparative fault analysis and assigned plaintiff 25 percent of the responsibility for the accident.

Following the verdict, defendant renewed its motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), or, in the alternative, for a new trial pursuant to Fed.R.Civ.P. 59 on the issue of plaintiff's lost earnings. Spentonbush claimed the $62,575 award for lost earnings was unsupported by the evidence. The district court agreed and stated in its opinion that

[t]he only possibly [sic] evidence in the record is that plaintiff made less money in the years following the accident then [sic] he did while working for defendant. However, the fact that plaintiff made less money post-accident than he did pre-accident does not support the inference that the accident itself was the cause of the reduced earnings.

The district court accordingly set aside the jury award for lost earnings and granted defendant judgment as a matter of law. It also conditionally granted defendant's motion for a new trial in the event we reversed its Fed.R.Civ.P. 50(b) ruling on lost earnings.

Judgment was entered on November 26, 1997, awarding plaintiff $7,500 for past pain and suffering, i.e., $10,000 less 25 percent for plaintiff's comparative negligence, but denying Jones' request for pre-judgment interest. Jones moved for reconsideration of the court's opinion and judgment. When that motion was denied, he filed the present appeal. We affirm.

DISCUSSION

Plaintiff contends the district court erred in four respects by: (1) granting defendant judgment as a matter of law on the issue of lost earnings; (2) precluding plaintiff from introducing evidence of his prior good performance evaluations to support his claim for lost wages; (3) denying him pre-judgment interest; and (4) refusing to instruct the jury that an OSHA violation either establishes defendant's negligence per se or shifts the burden of proof on causation to the defendant, and precludes a comparative fault analysis. We address each issue in turn.

I Lost Earnings Award Set Aside

In ruling on a motion for judgment as a matter of law under Fed.R.Civ.P. 50(b), a district court must consider the evidence in the light most favorable to the non-movant, giving that party the benefit of all reasonable, favorable inferences the jury might have drawn from the evidence. See Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 494 (2d Cir.1995); Samuels v. Air Transp. Local 504, 992 F.2d 12, 16 (2d Cir.1993). The trial court is not to consider the credibility of the witnesses or otherwise assess the weight of conflicting evidence, since that function is given to the jury. See Indu Craft, Inc., 47 F.3d at 494; Samuels, 992 F.2d at 16. Only when no evidence exists to support the jury's verdict and the verdict it reached could have been based on nothing more than surmise and conjecture or where there is such overwhelming evidence in favor of the movant that reasonable and fair-minded jurors could not arrive at a verdict against the movant, may a trial court properly grant a motion to set aside a jury verdict. See Song v. Ives Lab., Inc., 957 F.2d 1041, 1046 (2d Cir.1992). The same standard governs appellate review of the grant of such judgment. See Binder v....