Tierney v. Black Bros. Co.

• Decision Date: 19 May 1994
• Docket Number: No. 92-1164-CIV-T-23B.,92-1164-CIV-T-23B.
• Citation: 852 F. Supp. 994
• Parties: Peter W. TIERNEY, Plaintiff, v. The BLACK BROTHERS COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Florida

852 F. Supp. 994

Peter W. TIERNEY, Plaintiff, v. The BLACK BROTHERS COMPANY, Defendant.

No. 92-1164-CIV-T-23B.

United States District Court, M.D. Florida.

May 19, 1994.

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John P. Graves, Jr., Sarasota, FL, for plaintiff.

Harry Pance Smith, McFarlane, Ausley, Ferguson and McMullen, Tampa, FL, for defendant.

OPINION & ORDER

GAGLIARDI, Senior District Judge.

Plaintiff Peter Tierney moves for judgment notwithstanding the verdict as to percent of fault-finding pursuant to Rule 50 of the Federal Rules of Civil Procedure, Fed. R.Civ.P. 50 (1966 & Supp.1993) ("Rule 50"); the Court construes this as a renewed motion for judgment as a matter of law. In the alternative, Plaintiff moves for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure, Fed.R.Civ.P. 59 (1994) ("Rule 59"). Defendant The Black Brothers Company opposes Plaintiff's motion, urging the Court to sustain the jury's verdict. The Court held a hearing on April 6, 1994, at which the Court directed both parties to apprise the court fully of their positions with regard to all outstanding issues.

Plaintiff raises several contentions in support of his motion, of which the Court finds the following dispositive: that the Court erred in denying Plaintiff's motion for judgment as a matter of law as to the second affirmative defense raised by Defendant, see Part I, infra, at 2, 4-5, and thus should amend the judgment to assign full liability to Defendant; that the jury's liability finding as to Plaintiff's employer, Lambaton, Inc. ("Lambaton"), was against the great weight of the credible evidence; and that defense counsel's comments to the jury were improper and highly prejudicial. For the reasons stated below, the Court grants Plaintiff's renewed motion for judgment as a matter of law as to Defendant's second affirmative defense and holds that Defendant is liable for the entire damage award. The Court also conditionally grants Plaintiff's alternative motion for a new trial, limited to the issues of Defendant's negligence and Plaintiff's damages.

I. BACKGROUND

Plaintiff brought this action alleging in Count One that Defendant was strictly liable for designing and selling a defective glue spreader and in Count Two that Defendant negligently designed the glue spreader. Defendant alleged in its first and second affirmative defenses respectively that Plaintiff and Lambaton were comparatively negligent.

Plaintiff objected to Defendant's injection of Lambaton into the case, arguing that by failing to expressly designate Lambaton as a potential third-party tortfeasor in the Pre-Trial Statement, Defendant was furtively trying to gain advantage via unfair surprise. Defendant relied on two portions of the Pre-Trial Statement to counter Plaintiff's argument. One sentence reads: "The Defendants have generally denied and affirmatively plead collateral source set off, comparative negligence, causal conduct, causal third party sic, negligent conduct alteration or modification and failure to mitigate damages." (Pre-Trial Statement, Docket Entry # 38, 1-2). The second sentence reads: "It is the contention of Defendant that the negligence of Plaintiff, and others for whom this Defendant is not responsible, constitutes the proximate cause of Plaintiff's injury and damages." (Id. at 5). With much reluctance, the Court allowed Defendant to proceed with its second affirmative defense based on Lambaton's alleged negligence.

A jury trial commenced in this action on January 13, 1994. Plaintiff presented evidence regarding Defendant's alleged negligence in designing the glue spreader when it knew that there was an unreasonably high risk that injuries would result from the design. With regard to the issue of Plaintiff's training in the proper use of the glue spreader, Plaintiff testified that he followed the directions posted on the machine itself and the procedures described therein were the ones used by other Lambaton employees. Defendant presented evidence that Lambaton did not provide Plaintiff with a copy of the operation manual.

Defendant sought to move Defendant's Exhibit 13 ("Exhibit 13") into evidence over Plaintiff's objection. Exhibit 13 is a videotape, produced by Lambaton, depicting the glue spreader in operation and the process used to clean the machine; the videotape was produced at least one year after Plaintiff was injured. The parties argued vehemently in support of their respective positions as to the relevance of Exhibit 13, focusing on the probative value of depicting the cleaning process used by Lambaton outside the relevant time frame. After viewing the videotape, the Court admitted the portion of Exhibit 13 which demonstrated the operation of the glue spreader but specifically excluded the portion that showed the cleaning process, warning counsel not to make any references to the latter portion of the videotape.

With regard to Defendant's second affirmative defense that Lambaton was comparatively negligent, Defendant requested that the Court instruct the jury that Lambaton violated chapter 450.061 of Florida Statutes, Fla.Stat. ch. 450.061 (1993) ("ch. 450.061"), by employing Plaintiff (then only 15 years old) for a position that involved the use of power-driven machinery. Defendant argued that violation of the statute was per se negligence, precluding any need for it to produce evidence that Plaintiff's injuries were proximately caused by Lambaton's violation of the statute; that is, Defendant argued that an employer that contravenes ch. 450.061 is strictly liable for a civil action based on its violation. Plaintiff argued that violation of the statute only constituted prima facie evidence of negligence and that Defendant still needed to produce evidence of proximate cause to sustain an actionable negligence theory.

Before submitting the case to the jury, Plaintiff moved for judgment as a matter of law as to his claims and as to Defendant's affirmative defenses, opposing Defendant's request that its affirmative defenses be included in the jury instructions. The Court denied Plaintiff's motion and overruled his objection.

The Court instructed the jury in relevant part as follows:

With regard to the Defendant's claim that Lambaton was comparatively negligent, the Defendant must establish:

1) That Lambaton was negligent; and

2) that such negligence was a "proximate" or "legal cause" of the Plaintiff's damage.

In connection with Defendant's claim of comparative negligence on the part of Lambaton, I instruct you that Florida law prohibits an employer from employing a person of Plaintiff's age to work on power-driven machinery. You may not consider this in any way with regard to any negligence of the Plaintiff, but you may consider it with respect to the negligence, if any, of Lambaton.

(Jury Instructions, Docket Entry # 53, 9-10). During its deliberations, the jury asked to review Exhibit 13, which the Court allowed, and the admissible portion of the tape was shown in open court. At the end of the admitted segment of Exhibit 13, a juror asked whether the rest of the videotape showed the cleaning process at Lambaton. Standing in close proximity to the jury, defense counsel answered, "Yes." Plaintiff objected and moved for a mistrial. The Court sustained Plaintiff's objection but denied his motion for mistrial.

On January 14, 1994, the jury returned a verdict as follows: Defendant was negligent; Plaintiff was not comparatively negligent as alleged in the first affirmative defense; Lambaton was comparatively negligent as alleged in the second affirmative defense; Defendant's and Lambaton's negligence accounted for 10% and 90% of Plaintiff's damages respectively; Plaintiff was entitled to $82,889.22 in economic and non-economic damages. The clerk entered judgment for Plaintiff against Defendant in the amount of $8,288.92, representing 10% of the total amount of loss sustained by Plaintiff. Plaintiff timely renewed his motion for judgment as a matter of law, or, in the alternative, a new trial.

II. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

In his renewed motion for judgment as a matter of law, Plaintiff argues that there was no evidence that Lambaton proximately caused his injuries and that the Court erred in not granting his earlier motion to eliminate from this case Defendant's second affirmative defense. Defendant argues that the Court's denial of Plaintiff's motion was proper and should not be disturbed.

A. Standard for Rule 50 Relief

Rule 50 states in relevant parts:

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient basis for a reasonable jury to find for that party on that issue, the court may determine the issue against the party and may grant a motion for judgment as a matter of law against that party with respect to a ... defense that cannot under controlling law be maintained....

* * * * * *

(b) Renewal of Motion for Judgment After Trial; Alternative Motion for New Trial.

Whenever a motion for judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal consequences raised by the motion.... A motion for a new trial under Rule 59 may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative. If a verdict has been returned, the court may, in disposing of the renewed motion ... reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law....

Fed.R.Civ.P. 50 (as amended Apr. 22, 1993, effective Dec. 1, 1993). In deciding whether to grant a motion for judgment as a matter of law, a court must view the evidence together with logical inferences in the light most favorable to the non-movant. Tate v. Government Employees Ins. Co., ...