Mazyck v. Long Island R. Co.(LIRR), 88-CV-1855 (JS).

• Decision Date: 21 August 1995
• Docket Number: No. 88-CV-1855 (JS).,88-CV-1855 (JS).
• Citation: 896 F. Supp. 1330
• Parties: Marshall MAZYCK, Plaintiff, v. LONG ISLAND RAILROAD COMPANY (LIRR), Gregory Staff, Richard Staff and Alan Scott, Defendants.
• Court: U.S. District Court — Eastern District of New York

896 F. Supp. 1330

Marshall MAZYCK, Plaintiff, v. LONG ISLAND RAILROAD COMPANY (LIRR), Gregory Staff, Richard Staff and Alan Scott, Defendants.

No. 88-CV-1855 (JS).

United States District Court, E.D. New York.

August 21, 1995.

Kranz, Davis & Hersh by Nancy D. Wigler, Hauppauge, NY, for plaintiff.

Shaub, Ahmuty, Citrin & Spratt by Steven J. Ahmuty, Jr., Lake Success, NY, Marvin Kornberg, Kew Gardens, NY, Joseph A. Faraldo, Kew Gardens, NY, for defendants.

MEMORANDUM AND ORDER

SEYBERT, District Judge:

In the instant action brought by plaintiff Marshall Mazyck under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, defendants Long Island Railroad Company (LIRR), Richard Staff and Alan Scott move to set aside the jury's verdict, dated June 30, 1994. In its verdict, the jury found each of these defendants liable to the plaintiff for injuries sustained in an incident occurring on August 30, 1985, wherein the plaintiff, an off-duty police officer employed by the LIRR, was beaten by codefendant Gregory Staff on a "deadhead car" operated by the LIRR. The jury found the LIRR liable to the plaintiff under the FELA for breaching its duty of providing a reasonably safe place in which to work; the liability of Richard Staff and Alan Scott, meanwhile, was premised upon the state-law tort of assault. The remaining codefendant, Gregory Staff — who does not have an application pending before the Court — conceded liability to the tort of battery prior to the commencement of trial.

By Memorandum and Order dated April 28, 1995, the Court denied the post-verdict motions of defendants LIRR, Richard Staff and Alan Scott for judgment as a matter of law, or in the alternative, for a new trial, with respect to the incidence of liability. In this same Memorandum and Order, the Court also denied the LIRR's application to strike the testimony of Police Officer Zabbara, who testified at trial as an expert witness on behalf of the plaintiff. The Court, however, held in abeyance the defendants' applications for a new trial on the issue of damages, including consideration of the extent of their joint and several liability therefor, pending the submission of a stipulation by counsel setting forth the discounted present value of that portion of the damages award attributable to the plaintiff's future pain and suffering.

The parties have since stipulated to the amount of $436,932.80 as constituting the discounted present value of the jury's award of $605,000.00 for future pain and suffering to be incurred by the plaintiff over his remaining life expectancy of 36 years. See Stipulation dated May 15, 1995; Docket # 46, at 3 (Supplemental Verdict Form dated June 30, 1994) (jury finding of remaining life expectancy of 36 years). In view of this stipulation, the jury's compensatory damages award, as adjusted, totals $679,450.57, and is computed as follows:

                  A. Loss of earnings                $ 25,017.77
                  B. Pain and suffering from the
                     date of the injury (August
                     30, 1985) through the date of
                     verdict (June 30, 1994)           217,500.00
                  C. Future pain and suffering         436,932.80
                                                     ____________
                     TOTAL                           $ 679,450.57
                                                     ============
                

See Docket # 46 (Supplemental Verdict Form dated June 30, 1994). In addition, the jury awarded the plaintiff $200,000.00 in punitive damages as against defendant Gregory Staff. See Docket # 47, at 6 (Verdict Form dated June 27, 1994).

The Court refers the reader to its Memorandum and Order dated April 28, 1995 for a fuller discussion of the substantive bases for the imposition of liability upon the defendants. The Court now turns to address the issues held in abeyance in its April 28th Memorandum and Order, as well as a jurisdictional issue concerning pendent parties under the FELA that the Court now raises sua sponte.

DISCUSSION

I. Joint and Several Liability of Tortfeasors for Full Amount of Plaintiff's Injury

The defendant LIRR moves for an order absolving it from joint and several liability to the plaintiff for the full amount of the jury's compensatory damages award. Rather, the LIRR contends that it should adjudged severally liable only for its apportioned share of the damages as reflected on the supplemental verdict form. On this form, in responding to an interrogatory, the jury indicated that $381,383.00 in damages was caused by the LIRR. Of this amount, $272,250.00 pertained to future pain and suffering, and therefore was subject to reduction to present value. See Docket # 46, at 3 (Supplemental Verdict Form dated June 30, 1994). It should be noted, however, that this apportionment of damages was separate and apart from the jury's allocation of 45% of the fault for the incident to the LIRR for purposes of contribution. See Docket # 47, at 13 (Verdict Form dated June 27, 1994). As it turns out, however, this amount of $381,383.00 constitutes precisely 45% of $847,517.77, the total amount of compensatory damages that the jury found the plaintiff to have sustained, before reduction to present value of the amount attributable to future pain and suffering. The Court further notes that the jury was not specifically instructed concerning the apportionment of indivisible injuries.

The plaintiff, meanwhile, argues that notwithstanding the jury's apportionment of damages, all of the defendants, as a matter of law, are jointly and severally liable to the plaintiff for the full amount of the compensatory damages award because the plaintiff has sustained an indivisible injury. According to the plaintiff, any ruling to the contrary would undermine Congress' intent, in enacting the FELA, to impose liability upon the railroad for injuries caused "in whole or in part" by the employer's negligence, 45 U.S.C. § 51, and further, would contravene apportionment principles of federal common law. Insofar as the imposition of joint and several liability would be at odds with the jury's apportionment of damages, the Court's construes this as an application to modify the jury's verdict as a matter of law on account of plain error.

Under section 1 of the FELA, 45 U.S.C. § 51, the railroad is "liable in damages for any injury or death `resulting in whole or in part from the negligence' of any of its `officers, agents, or employees.'" Bailey v. Central Vermont Ry., 319 U.S. 350, 352, 63 S.Ct. 1062, 1063, 87 L.Ed. 1444 (1943) (quoting 45 U.S.C. § 51). The rights created by the FELA "are federal rights protected by federal rather than local rules of law." Id. at 352, 63 S.Ct. at 1063 (citations omitted). These "federal rules have been largely fashioned from the common law except as Congress has written into the FELA different standards." Id. at 352, 63 S.Ct. at 1064 (citations omitted); see Consolidated Rail Corp. v. Gottshall, ___ U.S. ___, ___, 114 S.Ct. 2396, 2403, 129 L.Ed.2d 427 (1994) ("`FELA jurisprudence gleans guidance from common-law developments....'") (quoting Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 568, 107 S.Ct. 1410, 1417, 94 L.Ed.2d 563 (1987)).

There is nothing in the language of the FELA to suggest that Congress, by enacting this statute, intended to abrogate the common-law principles of joint and several liability.¹See Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1430 (5th Cir.1988) (noting that FELA did not modify the common-law rule of joint liability), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989); St. Louis Southwestern Ry. v. Board of County Comm'rs, 716 F.Supp. 13, 14 (D.Kan.1989) ("FELA makes no provision for the reduction of damages recoverable by an employee against the carrier on account of the fault of any third person.") (quotations and citations omitted). Instead, courts that have considered this question have concluded that the well-established principles of joint and several liability apply to cases under the FELA. See Lockard v. Missouri Pac. R.R., 894 F.2d 299, 305 (8th Cir.), cert. denied, 498 U.S. 847, 111 S.Ct. 134, 135, 112 L.Ed.2d 102 (1990); Tersiner v. Union Pac. R.R., 754 F.Supp. 177, 178 (D.Kan.1990), aff'd, 947 F.2d 954 (10th Cir.1991).

"The law is clear that where there is but one indivisible injury caused by the joint or concurrent acts of two or more tortfeasors, each tortfeasor is jointly and severally liable for the entire amount of damages."² Lockard, 894 F.2d at 305 (citing Restatement (Second) of Torts § 433A (1965)). Indeed, "where two or more causes combine to produce ... a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm." Restatement (Second) of Torts § 433A cmt. on subsection (2), at 440 (1965)³; see W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 52, at 345, 347 (5th ed. 1984). Further, "it is not necessary that the misconduct of two or more tortfeasors be simultaneous. One defendant may create a situation upon which the other may act later to cause the harm." Restatement (Second) of Torts § 433A cmt. on subsection (2), at 440 (1965); see Ravo by Ravo v. Rogatnick, 70 N.Y.2d 305, 310, 520 N.Y.S.2d 533, 536, 514 N.E.2d 1104, 1106-07 (1987) (Tort-feasors who neither act in concert nor concurrently may nevertheless be considered jointly and severally liable in the instance of certain injuries which, because of their nature, are incapable of any reasonable or practicable division or allocation among multiple tort-feasors.); see, e.g., Keeton et al., supra, § 52, at 348 ("One tortfeasor may leave combustible material, and the other set it afire."). This, in fact, is the situation in the case at bar, as the jury found that the LIRR created a risk of harm to the plaintiff that came to fruition through the foreseeable misconduct of third persons.

In...