Wharf v. Burlington Northern R. Co., s. 94-35097

• Decision Date: 21 July 1995
• Docket Number: Nos. 94-35097,94-35286,s. 94-35097
• Citation: 60 F.3d 631
• Parties: , 95 Cal. Daily Op. Serv. 5684, 95 Daily Journal D.A.R. 9713 Lonnie L. WHARF, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Defendant-Appellant. Lonnie L. WHARF, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 631

60 F.3d 631

32 Fed.R.Serv.3d 116, 95 Cal. Daily Op. Serv. 5684,

95 Daily Journal D.A.R. 9713

Lonnie L. WHARF, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation,

Defendant-Appellant.

Lonnie L. WHARF, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation,

Defendant-Appellee.

Nos. 94-35097, 94-35286.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 1995.

Decided July 21, 1995.

David M. Reeve, Kroschel & Associates, Bellevue, WA, for defendant-appellant-cross-appellee.

Fred Diamondstone, Groshong, Lehet & Thornton, Seattle, WA, for plaintiff-appellee-cross-appellant.

Appeal from the United States District Court for the Eastern District of Washington.

Before: WRIGHT, HALL, and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

OVERVIEW

Lonnie L. Wharf ("Wharf") sued his employer, Burlington Northern Railroad ("Burlington"), under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Secs. 51-60, after a workplace injury to a finger on his left hand. A jury trial was conducted by a magistrate of the United States District Court for the Eastern District of Washington. The jury, finding that Burlington's negligence had caused the injury, awarded Wharf $90,000 in compensatory damages.

Burlington appeals the trial court's grant of judgment as a matter of law on the issue of Wharf's contributory negligence. Because Wharf was engaged in a rescue when he was injured, and because there is no evidence that Wharf's conduct was wanton or reckless On cross-appeal, Wharf requests a new trial on damages because of opposing counsel's misconduct and newly discovered evidence. Before trial, the parties had stipulated that Wharf continued to be employed by the railroad. Burlington's counsel learned during trial that the railroad planned to fire Wharf during Wharf's counsel's closing argument, but Burlington's counsel did not inform Wharf or the court. Instead, Burlington's counsel argued in closing that "Wharf still has his job."

we affirm the ruling on contributory negligence.

Wharf's timely new trial motion, made under Fed.R.Civ.P. 59 and 60, was denied because the trial court believed it was without jurisdiction to grant the motion. The trial court believed the motion was "in essence" an action for wrongful termination and was therefore preempted by the mandatory arbitration provisions of the Railway Labor Act ("RLA"), 45 U.S.C. Secs. 151-88. We reverse because the motion is not preempted; we find that Burlington's counsel engaged in misconduct justifying a new trial; and we remand for a new trial on damages.

BACKGROUND

Wharf was injured while working as a switchman/brakeman for Burlington on a train loaded with ballast (gravel) that was being spread on a newly laid track in the trainyard. Mr. Puhek, a co-worker of Wharf, had become trapped in frozen ballast in a railroad car. Wharf and other co-workers set about removing ballast from underneath the railroad car in an attempt to free Puhek. After pulling out ballast for 20 to 25 minutes, Wharf took a break. While resting and warming up for a minute, he heard some yelling above him, stepped back, tripped over a spike maul, ¹ and struck his finger on a rail, severing a tendon in the ring finger of his left hand. Other workers continued to remove the ballast and were ultimately successful in freeing Puhek.

Wharf sued Burlington under the FELA for his finger injury. Wharf testified at trial that, prior to his injury, he had been employed by the railroad as a switchman/brakeman doing "road work." Three weeks after his finger was surgically repaired, he returned to work, but he found that the loss of his finger joint deprived him of a certain amount of grip strength, so that he could not hold onto the side of a moving railway car with his left hand for the length of time required to perform road work. Wharf testified that he was still employed doing yard work, which required him to grip for shorter periods. He said he performed yard work capably.

Burlington's counsel immediately forwarded a transcript of Wharf's testimony to Burlington's in-house counsel for a determination of whether Wharf could be withheld from service (i.e., terminated) under the parties' collective bargaining agreement ("CBA"). Prior to closing arguments, Burlington decided to terminate Wharf during his counsel's closing argument. Burlington's counsel was informed of the decision, but he did not communicate the decision to Wharf or the court. Instead, he allowed the court to read, without modification, the following stipulation to the jury:

At all times alleged, the plaintiff was employed by defendant as a switchman/brakeman.... Plaintiff has been employed by the defendant for more than 20 years.... Plaintiff continues to work for the railroad as a switchman/brakeman.

In closing, Wharf's counsel asked the jury, among other things, for damages for income loss in the range of $115,000 to $252,000, based on the difference between road pay and yard pay. Burlington's counsel, as part of his own closing argument, told the jury: "Plaintiff's counsel thinks $350,000 is what a finger's worth, and Mr. Wharf still has his job." After the jury withdrew for deliberations, Wharf learned that he had been terminated.

DISCUSSION

I. THE TRIAL COURT PROPERLY GRANTED JUDGMENT AS A MATTER OF LAW ON WHARF'S CONTRIBUTORY NEGLIGENCE

Burlington appeals the trial court's decision to grant Wharf's motion for judgment "Under the 'rescue doctrine,' a rescuer who is injured while attempting to save an imperiled party may recover from a third party whose negligent conduct places the party in peril." Fulton v. St. Louis-San Francisco Ry., 675 F.2d 1130, 1133-34 (10th Cir.1982). The rescuer may also recover from the imperiled party if that party's negligence caused the peril. Id. at 1134. "Since FELA provides that a railroad is liable to any employee suffering injuries resulting in whole or part from the negligence of the railroad's officers, agents, or fellow employees, 45 U.S.C. Sec. 51, as a matter of law [the imperiled party's] negligence in endangering himself is attributable to the railroad," Fulton, 675 F.2d at 1134, as is the negligence of any co-worker who contributed to Puhek's peril and the need for the rescue. See id. Therefore, regardless of whether the railroad, Puhek, or a co-worker caused Puhek's plight, the rescue doctrine applies to Wharf's claim against Burlington, see id. at 1133-34, if Wharf was injured in effecting the rescue.

as a matter of law on the issue of Wharf's contributory negligence. We review de novo the grant of judgment as a matter of law. Zamalloa v. Hart, 31 F.3d 911, 913 (9th Cir.1994). We affirm on the basis of the rescue doctrine.

We find that Wharf was in fact injured in connection with the rescue. The facts surrounding the injury are undisputed. Burlington conceded that Wharf was "in the process of helping Mr. Puhek" when Wharf "got cold, got tired, stepped away from that position onto the ballast, thought he heard something, ... [and] he looked up and started to step backwards." Wharf gave uncontradicted testimony that he looked up and stepped back "to see if they were yelling down at us to quit digging." On these facts, it is clear that Wharf's involvement in an ongoing rescue effort was the reason he stepped backwards without looking at the ground and tripped over the spike maul. The rescue doctrine applies as a matter of law.

Under the rescue doctrine, no comparative fault may be assessed against the rescuer unless his or her conduct in performing the rescue was wanton or reckless. See Berg v. Chevron U.S.A., Inc., 759 F.2d 1425, 1430 (9th Cir.1985); Furka v. Great Lakes Dredge & Dock Co., 755 F.2d 1085, 1088 (4th Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 136, 88 L.Ed.2d 112 (1985). The evidence shows that Wharf tripped while looking away from his direction of travel. That could constitute negligence, but it does not amount to reckless or wanton conduct. Therefore, the court was correct in granting judgment as a matter of law on the issue of Wharf's contributory negligence.

II. THE TRIAL COURT INCORRECTLY DENIED WHARF'S NEW TRIAL MOTION

A. The New Trial Motion Was Not Preempted By The RLA

Wharf cross-appeals the denial of his motion for a new trial on the issue of damages. He made the timely motion under Fed.R.Civ.P. 59 and 60 on the grounds of newly discovered evidence and Burlington's alleged factual misrepresentations at trial. The trial court believed that the new trial motion was "in essence" an allegation of wrongful termination. Because the RLA preempts any FELA-based action for wrongful termination or retaliatory discharge, see Mayon v. Southern Pac. Transp. Co., 805 F.2d 1250 (5th Cir.1986), the trial court denied the new trial motion without reaching the merits.

We review de novo the determination that Wharf's new trial motion was preempted. ² We reverse because although Wharf's new trial motion was based on misconduct surrounding Wharf's termination, and although the termination may have been wrongful and may be grounds for an action under the RLA, Wharf's new trial motion was not akin to a wrongful termination action and should not have been recharacterized as Under [the FELA, the district court] has jurisdiction of the claim by plaintiff against his employer for damages suffered by him through the negligence of his employer. The Railway Labor Act ... has no application to a claim for damages to the employee resulting from the negligence of an employer railroad.

                such. 3  The new trial motion should have been granted if misconduct of opposing counsel prevented the jury from considering the full extent of Wharf's damages.  See Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir.1990).  Wharf's damages include the loss of his job if that loss was proximately caused by his impairment.  The RLA does not cut off Wharf's right to have the jury consider the full extent and

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