Roggow v. Mineral Processing Corp.
| Citation | 698 F. Supp. 1441 |
| Decision Date | 25 October 1988 |
| Docket Number | No. NA 87-52-C.,NA 87-52-C. |
| Parties | Charles ROGGOW, Plaintiff, v. MINERAL PROCESSING CORP., NEEDMORE PROCESSING DIVISION, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
Harry F. Mooney, Moot & Sprague, Buffalo, N.Y., Michael G. Naville, Lorch & Naville, New Albany, Ind., for plaintiff.
William H. Kelley, Bunger, Robertson, Kelley & Steger, Bloomington, Ind., for defendant.
MEMORANDUM ENTRY
J. PATRICK ENDSLEY, United States Magistrate.
This cause is before the Court on plaintiff's motion for new trial, memorandum in support, defendant's response and plaintiff's supplemental memorandum. This is a personal injury action tried before a jury under the Indiana Comparative Fault Act. Ind.Code § 34-4-33-1, et seq.
Plaintiff, Charles Roggow, was employed as a long distance truck driver out of Buffalo, New York. Part of Mr. Roggow's duties included delivering scrap aluminum to a processing plant owned by the Mineral Processing Corporation — Needmore Processing Division ("Needmore"), which is located in Needmore, Indiana.
On February 26, 1986, after delivering a load of aluminum, Mr. Roggow was to pick up an unloaded trailer. Needmore had apparently failed to secure the header bar of the trailer. Consequently, Mr. Roggow had to fasten the bar before leaving the facility. (The header bar secures the sides of the trailer in order that they do not vibrate and damage the trailer.)
The pin to secure the header bar must be set in place at the very top of the sides of the trailer. The evidence indicated there was no ladder available to use. Consequently, Mr. Tracy Phillips, an employee of Needmore, obtained a highloader and brought it over to the truck. Mr. Roggow proceeded to step into the bucket of the highloader so that Mr. Phillips could raise the bucket off the ground and enable Mr. Roggow to reach the header bar atop the truck. Needmore's employees had used the highloader on previous occasions in a similar manner, allowing other persons to enter the bucket and be lifted eight to ten (8-10) feet off the ground.
After plaintiff had fastened the header bar, Mr. Phillips started to lower the bucket when his sleeve caught the dump lever of the highloader, causing the bucket to overturn and dump Mr. Roggow approximately nine (9) feet onto a concrete floor. As a result of the fall, Mr. Roggow sustained fractures in both wrists and a compression fracture in two vertebrae.
Thereafter, on March 20, 1987, plaintiff initiated this diversity action by the filing of his complaint against defendant in the United States District Court, Southern District of Indiana, New Albany Division. On March 9, 1988, this matter was referred by the Honorable Sarah Evans Barker to the undersigned Magistrate pursuant to the Federal Magistrates Act of 1979, 28 U.S.C. § 636(c). Following a two-day trial, the jury returned the following verdict, to-wit:
The Court granted plaintiff's counsel thirty (30) days to file their Rule 59 motion and on August 15, 1988, plaintiff filed his motion for new trial. Plaintiff raises four (4) grounds in support of his motion. Plaintiff first raises the adequacy of the jury's award. The remaining three (3) grounds concern the Court's jury instructions. The Court will address each ground seriatim.
In his memorandum, plaintiff describes the jury's assessment of his damages as "unconscionable and unjust." (Plaintiff's memorandum, p. 14) Furthermore, he adds, "It would be a gross and grievous miscarriage of justice to permit that award to stand." Id.
The Court would first note that plaintiff does not challenge the jury's determination regarding plaintiff's percentage of fault. Consequently, the focus of our inquiry is solely on the jury's finding of Eighty Thousand Dollars ($80,000.00) in total damages.
Plaintiff correctly states that motions for new trial on the basis of damages are determined by a federal standard of review in the federal courts. "Federal, not state, law delineates the standards governing grant or denial of a motion for a new trial." Wiedemann v. Galiano, 722 F.2d 335, 337 (7th Cir.1983); see also General Foam Fabricators v. Tenneco Chemicals, Inc., 695 F.2d 281, 288 (7th Cir.1982).
"A motion for a new trial on the ground of inadequate or excessive damages is addressed to the discretion of the trial court." Galard v. Johnson, 504 F.2d 1198, 1199 (7th Cir.1974). Indeed, damages assessed by a jury are largely discretionary with it and should not be idly disregarded. Id. at 1200.
Damages assessed by a jury are not to be set aside unless shocking to the judicial conscience or so grossly inadequate as to constitute a miscarriage of justice, or unless the jury's award indicates caprice or mistake or a clear abuse of its factfinding discretion or the clear influence of partiality, corruption, passion, prejudice, or a misconception of the law.
Tann v. Service Distributors, Inc., 56 F.R. D. 593 (E.D.Penn.1972) aff'd 481 F.2d 1399 (3d Cir.1973) (citations omitted). The Court should decline to interfere with the jury's verdict unless the amount is so small as to indicate that the jury must have been under the influence of passion, prejudice or gross mistake. T.D.S., Inc. v. Shelby Mutual Insurance Co., 760 F.2d 1520, 1530 (11th Cir.1985). Applying these principles to the facts of the case at bar, we note the following facts adduced at trial.
Both Mr. Roggow and Needmore stipulated prior to trial that the reasonable and necessary medical expenses incurred by plaintiff amounted to Twenty Thousand Six Hundred Sixty-One Dollars and Seventy-Nine Cents ($20,661.79). Furthermore, there was evidence to suggest that plaintiff lost wages totaling somewhere between Forty Thousand ($40,000.00) and Fifty-Eight Thousand ($58,000.00) Dollars for the period of February, 1986 through June, 1988.
Given the speculative nature of plaintiff's lost wages, this Court cannot say, as a matter of law, that the jury's assessment that plaintiff suffered Eighty Thousand Dollars ($80,000.00) in damages is "so unreasonable that it would be unconscionable to permit it to stand." 11 Wright & Miller, Federal Practice and Procedure § 2807 (1973). Indeed, there is nothing in the jury's verdict to suggest the members of the jury were under the influence of passion, prejudice or gross mistake. T.D.S., Inc., 760 F.2d at 1530. Consequently, a new trial will not be granted on the basis of inadequacy of damages.
Plaintiff next alleges that the Court erred in failing to give three (3) tendered jury instructions. In particular, plaintiff states it was error on the part of the Court not to instruct the jury on the last clear chance doctrine, superseding and intervening cause, and the plaintiff's right to assume defendant would exercise due care.
The Court first notes that this matter was tried under Indiana's Comparative Fault Act. Ind.Code § 34-4-33-1, et seq. Prior to the enactment of comparative fault, Indiana followed the common law rule of contributory negligence. This antiquated "all-or-nothing" rule totally bars a plaintiff from recovering damages for injuries if he is guilty of negligence, albeit slight. During the twentieth century, common law doctrines were developed to alleviate the harsh results of contributory negligence. The doctrine of last clear chance and superseding and intervening cause are two of these exceptions. Yosha, Overview and Analysis of Comparative Fault in Indiana, in Indiana's Comparative Fault Act XII-1 (1984). Plaintiff now invites the Court to determine the applicability of these exceptions to contributory negligence under Indiana's Comparative Fault Act even though the statute is silent and no Indiana court of review has yet passed on these issues. Because no Indiana state court has addressed this issue in a published opinion, this federal court must determine as a matter of first impression how the highest court in Indiana would decide this issue if it were presented with the question. Gray v. Chacon, 684 F.Supp. 1481 (S.D.Ind.1988) (Barker, J.).
Under the Indiana Comparative Fault Act, neither assumed risk nor incurred risk are available as absolute defenses for the defendant. Specifically, both "unreasonable assumption of risk not constituting an enforceable express consent" and "incurred risk" are factors to be considered by the factfinder when weighing the fault attributable to the individual actors. Ind.Code § 34-4-33-2(a).
Similarly, by its definition in the Act, "fault" necessarily includes the factors which make up last clear chance and superseding and intervening cause. Id. Specifically, the Indiana Legislature chose to define "fault" in the following manner, towit:
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