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Fashauer v. New Jersey Transit Rail Operations

filed: June 29, 1995.

THOMAS FASHAUER, JR. APPELLANT
v.
NEW JERSEY TRANSIT RAIL OPERATIONS, INC.



On Appeal from the United States District Court for the District of New Jersey. (D.C. No. 92-cv-3459).

Before: Greenberg, Roth and Aldisert, Circuit Judges.

Author: Greenberg

Opinion OF THE COURT

GREENBERG, Circuit Judge.

I. Introduction, Factual Background and Procedural History

This appeal arises in a Federal Employers' Liability Act (FELA) case in which the employer is New Jersey Transit Rail Operations, Inc. To understand the germane facts one must in the first instance know a bit about New Jersey Transit train design. On New Jersey Transit trains, or at least on the one involved here, cars are connected to each other by vestibules, which are enclosed areas located just outside the passenger seating compartments of each car. Thus, each car contains two vestibules, one at each end. Each vestibule, in turn, contains three doors -- one leading into the passenger compartment, the other two leading out of the train onto the station platform.*fn1 Railroad employees and passengers walk through the vestibules to pass from one car to the next, and to exit from the car to the platform and vice versa. While anyone may open the doors leading into the passenger compartments, railroad employees open and close the doors to the station platform by operating mechanisms located within the vestibule.

On March 10, 1992, appellant Thomas Fashauer was performing his usual duties as brakeman on a New Jersey Transit train en route from Lindenwold, New Jersey, to Atlantic City, New Jersey. These duties included entering the vestibule, opening and closing the doors leading from the train to the station platform, and signaling the engineer that the platform was clear and that the train could depart. He began work in Atlantic City at 1:00 p.m. and made several round trips.

It was raining heavily, and the rug on the vestibule floor was soaked when the train arrived at the Atco station on the last run of the day. Fashauer opened the doors, exited the train, and, after checking the stairs for passengers running late, returned to the train and signaled the engineer to leave. Fashauer then shut the doors. The train jerked twice, once upon leaving the station and once soon after. Fashauer was not holding on to the handrails at the time, and he slipped on the wet floor, striking his left shoulder against the wall. He testified that he was in agony at the time, and he immediately reported the incident to the conductor. At the conductor's behest, Fashauer rested for the remainder of the trip. He suffered serious injuries to his shoulder as a result of the accident.

On August 21, 1992, Fashauer filed a complaint against New Jersey Transit in the United States District Court for the District of New Jersey, alleging that his injury was proximately caused by New Jersey Transit's negligence. Specifically, the complaint charged New Jersey Transit with negligently maintaining certain seals between the cars, and further alleged that the defective seals allowed rain to seep into the vestibule, creating a dangerous slippery condition on a rainy day. He sought relief pursuant to the FELA, which governs actions by railroad employees against railroads for damages arising out of job-related injuries.

The case was tried between March 7, 1994, and March 16, 1994. New Jersey Transit defended against Fashauer's claims by presenting evidence that the seals were not defective, the slippery condition was purely the result of the rainy weather, and Fashauer failed to act with due care while walking through the vestibule. On March 16, the jury returned a verdict finding that New Jersey Transit was negligent and that its negligence contributed to the injuries. It awarded Fashauer damages of $71,320 in past lost earnings and $100,000 for pain and suffering. However, the jury awarded nothing for future lost earnings. Finally, the jury determined that Fashauer was 50% responsible for his injuries. Under FELA's pure comparative negligence provisions, this finding meant that the district court reduced Fashauer's damages by 50%. Unhappy with the 50% reduction and the jury's refusal to award damages for lost future earnings, Fashauer moved for a new trial. When that motion was denied on July 18, 1994 (in an Opinion and Order filed the next day), he timely filed this appeal.

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm.

II. Discussion

Most of the questions on this appeal involve the district court's denial of Fashauer's jury charge requests. Generally, "the standard of review for the district court's ruling on points for charge is . . . abuse of discretion." Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 922 (3d Cir. 1986). Where, as here, a party contends that the charge as given states an incorrect legal standard, "we will review the charge as a whole in the light of the evidence to determine if it fairly and adequately submitted the issues to the jury and we will reverse if the instructions were capable of confusing and thereby misleading the jury." Griffiths v. CIGNA Corp., 988 F.2d 457, 462 (3d Cir.) (citing Limbach Co. v. Sheet Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 1991) (in banc)), cert. denied, ____ U.S. ____, 114 S. Ct. 186 (1993). We address Fashauer's arguments in turn.

A. Assumption of Risk v. Contributory Negligence

The most significant question raised on this appeal is whether the district court erred by denying Fashauer's request to charge the jury that assumption of the risk is not a defense in a FELA action. Fashauer timely requested such a charge,*fn2 and objected to the district court's charge, which declined to give it. Fashauer essentially contends that the district court's instructions inadvertently permitted the jury to reduce his recovery based on the fact that he continued to perform his job despite his knowledge that he was encountering a dangerous condition. He further contends that under the FELA the jury should not have been allowed to reduce his recovery because he assumed the risk of injury.

1. Introduction

Congress passed the Federal Employers' Liability Act of 1906 in part to eliminate barriers common law courts erected to protect railroad companies and other common carriers from liability for their employees' workplace injuries. See Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58-59, 63 S. Ct. 444, 447, 87 L. Ed. 610 (1943). The FELA "substituted comparative negligence for the strict rule of contributory negligence," id. at 62, 63 S. Ct. at 448-49, but, as interpreted by the Supreme Court, originally allowed an employer to interpose assumption of the risk as a complete defense to the employer's liability. See Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 503, 34 S. Ct. 635, 639, 58 L. Ed. 1062 (1915). The only statutory exception to this occurred "in . . . cases where the violation by [a] common carrier of [a] statute enacted for the safety of employees contributed to the injury of such employee." Id. at 502-03, 34 S. Ct. at 639. Following widespread criticism of its retention of the assumption of risk defense, Congress amended the FELA in 1939 to eliminate the defense in cases where the injury "resulted in whole or in part from the negligence of any of the officers, agents, or employees" of the employer. 45 U.S.C. § 54. Interpreting the amendments soon thereafter, the Supreme Court held that "every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment," see Tiller, 318 U.S. at 57, 63 S. Ct. at 446, and that "cases tried under the Federal Act [are] to be handled as though no doctrine of assumption of risk had ever existed." Id. at 64, 63 S. Ct. at 450. The Court warned that "'unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name.'" Id. at 58, 63 S. Ct. at 447 (citation omitted).

2. Assuring Assumption of Risk Stays Out

In light of the 1939 amendment and Tiller 's interpretation of it, because contributory negligence on the plaintiff's part reduces his or her damages, while assumption of risk does not, courts have the delicate job of separating out evidence on one theory from evidence on the other. See Victor E. Schwartz, Comparative Negligence, § 9-4(a)(1) at 202 (3d ed. 1994) ("Facts constituting implied assumption of risk have no materiality except as they might also constitute contributory negligence."). Some courts have guarded against jury confusion by doing what Fashauer suggests the court should have done here: describing assumption of risk to the jury and instructing it not to reduce the plaintiff's recovery on that basis. See Koshorek v. Pennsylvania R.R. Co., 318 F.2d 364, 370 (3d Cir. 1963) (reversible error for district court not to instruct on assumption of risk); Jenkins v. Union Pacific R.R. Co., 22 F.3d 206, 212 (9th Cir. 1994) (same). But other courts have expressed wariness about instructing the jury on a legal doctrine not in the case. As one court has put it, "the statutory elimination of the defense of assumption of risk, when read to the jury in FELA cases where that 'defense' has been neither pleaded nor argued, serves only to obscure the issues in the case." Casko v. Elgin, Joliet and Eastern Ry. Co., 361 F.2d 748, 751 (7th Cir. 1966). The Court of Appeals for the Second Circuit, relying on the proposition that "'it is a mistake to give instructions on subjects not directly in issue in a case,'" DeChico v. Metro-North Commuter R.R., 758 F.2d 856, 861 (2d Cir. 1985) (citation omitted), has cautioned that "an assumption of risk instruction may be particularly inappropriate in cases where it 'might well cause such confusion as to water down or even eliminate the issue of contributory negligence.'" Id. at 861 (quoting Clark v. Pennsylvania R.R. Co., 328 F.2d 591, 595 (2d Cir.), cert. denied, 377 U.S. 1006, 84 S. Ct. 1943, 12 L. Ed. 2d 1054 (1964)); see also Clark v. Burlington N., Inc., 726 F.2d 448, 452 (8th Cir. 1984) ("Cases discussing the issue have generally condemned the giving of an assumption of risk instruction in FELA actions."); Heater v. Chesapeake and Ohio Ry. Co., 497 F.2d 1243, 1249 (7th Cir.) (an assumption of the risk "instruction is a confusing negative statement which refers to issues not involved in a FELA case"), cert. denied, 419 U.S. 1013, 95 S. Ct. 333, 42 L. Ed. 2d 287 (1974).

These latter cases enunciate a salutary principle: Whenever possible, courts should spare juries intricate descriptions of opaque legal doctrines inapplicable to the case. And indeed, our caselaw, while limited, supports that principle. For example, in Seaboldt v Pennsylvania R.R. Co., 290 F.2d 296 (3d Cir. 1961), the district court at the last minute acceded to the plaintiff's request and charged the jury that assumption of risk is not a defense. Id. at 300. We pointed out that "for this difficult concept to be thrown into the jury's mind at the last minute without explanation was almost sure to have left it in confusion." Id. See also De Pascale v. Pennsylvania R.R. Co., 180 F.2d 825, 827 (3d Cir. 1950) (district court properly refused to instruct on assumption of risk where "assumption of risk was definitely not important in the case [when t]here was no suggestion regarding it during the course of the trial.").

But in the end, this salutary principle can only be a starting point. Because assumption of risk and contributory negligence are similar doctrines, and because only the latter is a defense under the FELA, we recognize that sometimes the absence of an explanation of the differences between the doctrines will confuse the jury as to the governing law. And, following that logic, we have held that when the facts of the case present a danger of jury confusion on the issue, an assumption of risk charge should be given. Thus, in Koshorek v. Pennsylvania R.R. Co., the only evidence concerning the plaintiff's negligence consisted of his continuing to work in a dusty shop when he "either knew or should have known that inhalation of excessive dust over an extended period of time might cause him harm." 318 F.2d at 369. The district court refused to give an assumption of risk charge and the jury returned a verdict for the railroad. We reversed because "had an adequate distinction between conduct constituting contributory negligence and that which would have constituted assumption of risk been pointed to the jurors in the charge, the jury might well have reached a different verdict." Id. at 369-70.

Thus, the most we can say as a matter of law is that when the evidence adduced at trial presents a danger that the jury might reduce a plaintiff's recovery based on the impermissible theory of assumption of risk, then the trial Judge should instruct the jury on how that doctrine differs from contributory negligence. But when the evidence presents no such danger, then an adequate charge on contributory and comparative negligence suffices. Of course, the most difficult part of the inquiry is determining when the facts merit an assumption of the risk instruction. To answer this question, we must inquire into what Congress meant by the phrase "assumption of risk." Only then will we be able to categorize the evidence and determine whether such a charge should have been given.

3. Assumption of the Risk Generally

At common law an employee's voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform his duties constitutes an assumption of risk. Contributory negligence, in contrast, is a careless act or omission on the plaintiff's part tending to add new dangers to conditions that the employer negligently created or permitted to exist.

Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir. 1986) (citations omitted). Despite this seemingly simple definition, courts have a difficult time distinguishing between assumption of the risk and contributory negligence. This difficulty is certainly due in large part to the fact that the "assumption of risk" concept of voluntarily and knowingly accepting a dangerous condition often is used as an umbrella term to describe a number of discrete and dissimilar concepts. See Schwartz, Comparative Negligence, § 9-1(a) at 187; W. Page Keeton, et. al., Prosser and Keeton on Torts, § 68 at 480 (5th ed. 1984). For example, in some cases assumption of risk describes a party's express contractual agreement to assume a risk; under this scenario, "the defendant is relieved of a legal duty to the plaintiff." Prosser and Keeton on Torts, § 68 at 481. Other times the phrase is used as a legal fiction under which, based on the circumstances, a party is deemed implicitly to have consented to bear particular kinds of risk. For example, a railroad worker might be said to have assumed the risks inherent in working in a dangerous occupation. The umbrella category of assumptions of risk also divides into the subcategories of reasonable assumptions of risk and unreasonable assumptions of risk. See Schwartz, § 9-4(c)(2) at 214; Smith v. Seven Springs Farm, Inc., 716 F.2d 1002, 1005 (3d Cir. 1983). Thus, when an expert skier traverses an extremely difficult slope, he may be said reasonably to have assumed the risk inherent in skiing a difficult slope. Id. at 1009. But when a novice consciously chooses the difficult slope, his actions probably would be characterized as unreasonable. Thus, a person's implicit consent to undertake a risk can be either reasonable or unreasonable. As a corollary, an individual who accepts a dangerous employment at a high wage might be said to be acting reasonably. But a person who accepts the identical employment for a lower wage and with minimal safety precautions might be said to be acting unreasonably.

The subcategory of unreasonable assumption of risk sounds suspiciously like a negligence concept. In fact, in such cases -- where the plaintiff unreasonably assumed a known risk -the difference between assumption of risk and contributory negligence appears purely semantic. Rather than saying the skier assumed a risk, we easily could say that he failed to act with due care. See Prosser and Keeton on Torts, § 68 at 481 (equating unreasonable assumption of risk with contributory negligence). The point is crucial, because it means there are times when a description of the defense of assumption of the risk "overlaps with [a description of] the defense of contributory negligence." Smith, 716 F.2d at 1006. In such cases, evidence supporting one theory also constitutes evidence of the other. Thus, depending on how courts characterize such evidence, a jury either may be permitted to reduce the plaintiff's recovery or be barred completely from considering such evidence. Thus, our next inquiry must be into just what theory of assumption of risk Congress sought to prohibit when it barred the defense under the FELA. To answer the question, we turn first to the history behind Congress' initial allowing and subsequent elimination of the assumption of risk defense under FELA, and then we consider the pertinent interpretative caselaw.

4. Assumption of the Risk Under FELA

During the beginnings of industrial growth in the 19th century, and prior to the enactment of FELA and other legislation protecting employees, the common law governing employment injuries "was heavily stacked against employees." Daniel Saphire, Two Views on FELA and Railroad Safety, 19 Transp. L. J. 401, 402 (1991). Specifically, the common law courts had devised rules "to insulate the employer as much as possible from bearing the 'human overhead' which is an inevitable part of the cost -- to someone -- of the doing of industrialized business." Tiller, 318 U.S. at 59, 63 S. Ct. at 447. Thus, for example, "a plaintiff's contributory negligence barred any subsequent recovery for damages, even if the plaintiff was only slightly at fault." Monk v. Virgin Islands Water & Power Authority, 53 F.3d, 1995 WL 231637 at * 2 (3d Cir. 1995). The point, in part, was "to give maximum freedom to expanding industry," Tiller, 318 U.S. at 59, 63 S. Ct. at 447, in the belief that "optimal economic growth could occur only when the government did not interfere unduly with the free workings of the marketplace." Jane P. North, Comment: Employees' Assumption of Risk: Real or Illusory Choice, 52 Tenn. L. Rev. 35, 39 (1984). The doctrine of assumption of the risk was one of those barriers erected against this background. The doctrine, which "prevented recovery when a plaintiff was deemed to have assumed the risk of a known danger," Monk, at *5, 1995 WL 231637 at * 2 (citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 68, at 495-96 (5th ed. 1984)), really was "a judicially created . . . 'rule of public policy, [developed because] an opposite doctrine would not only subject employers to considerable and often ruinous responsibilities, thereby embarrassing all branches of business,' but would also encourage carelessness on the part of the employee." Tiller, 318 U.S. at 58-59, 63 S. Ct. at 447 (citations and footnotes omitted).

The Supreme Court summed up the meaning of the concept in the pre-FELA case of Tuttle v. Detroit, G.H. & M. Ry. Co., 122 U.S. 189, 7 S. Ct. 1166, 30 L. Ed. 1114 (1887), when it declined to allow a jury to inquire into the reasonableness of a railroad's choice of machinery. It explained its decision as follows:

The brakemen and others employed to work in such situations must decide for themselves whether they will encounter the hazards incidental thereto; and, if they decide to do so, they must be content to assume the risks. . . . . 'A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad company connected with the moving of trains assumes the risk of that condition of things.' It is for those who enter into such employments to exercise all that care and caution which the perils of the business in each case demand.

Id. at 194-95, 7 S. Ct. at 1168 (emphasis added) (citation omitted). Thus, assumption of risk in the employment context described the notion of implied consent -- when an employee takes a job, he or she consents to assume the risk of any danger he or she knows or should know necessarily is entailed in the job. In a sense the doctrine estopped the employee from blaming the employer for an injury resulting from a risk contemplated by the parties when they fashioned their employment contract. The Court in fact explicitly relied on this quasi-contract basis for the doctrine: "'The servant, when he engages in the employment, does so in view of all the incidental hazards, and . . . he and his employer, when making their negotiations, -- fixing the terms and agreeing upon the compensation that shall be paid to him, -must have contemplated these as having an important bearing upon their stipulations. As the servant then knows that he will be exposed to the incidental risk, he must be supposed to have contracted that, as between himself and the master, he would run this risk.'" Id. at 195-96, 7 S. Ct. at 1168-69 (citation omitted). Therefore in an action claiming damages because of one's employer's negligence, "although an employer may have violated the duty of care which he owed his employee, he could nevertheless escape liability for damages resulting from his negligence if the employee, by accepting or continuing in the employment with 'notice' of such negligence, 'assumed the risk.'" Tiller, 318 U.S. at 69, 63 S. Ct. at 452 (Frankfurter, J., Concurring).

In a case decided after the original FELA was enacted -- when assumption of the risk remained a complete defense to the railroad's negligence -- the Supreme Court distinguished assumption of the risk from contributory negligence and again described assumption of risk in implied consent terms. "Contributory negligence involves the notion of some fault or breach of duty on the part of the employee." Seaboard Air Line Ry. v. Horton, 233 U.S. at 503, 34 S. Ct. at 639-40. Assumption of the risk, on the other hand, "may be free from any suggestion of fault or negligence on the part of the employee." Rather, "employments [that] are necessarily fraught with danger to the workman . . . are normally and necessarily incident to the occupation [and] are presumably taken into account in fixing the rate of wages." Id. at 504, 34 S. Ct. at 640. Assumption of the risk again referred to risks to which the plaintiff implicitly consented in taking the employment; other than that, the plaintiff was charged with acting as a prudent person under the circumstances.

Tiller, the seminal case that first interpreted the 1939 FELA amendment, canvassed the history of the assumption of the risk defense, and explained it in implied consent terms. The Court noted that assumption of the risk originally was included in the FELA "because of acceptance of the theory that the employee's compensation was based upon the added risk to his position and that he could quit when he pleased." Tiller, 318 U.S. at 61, 63 S. Ct. at 448. But, the Court noted, in adopting the amendments, "the report of the Senate Judiciary Committee struck at the basic reasons advanced by common law courts for the existence of the doctrine, declared it unsuited to present day activities, and described them as out of harmony with the equitable principles which should govern determinations of employer-employee responsibilities." Id. at 64-65, 63 S. Ct. at 450 (citing Senate report).

Thus, Supreme Court cases from the pre-FELA, pre-amendment and post-amendment eras all contemplated that assumption of risk under the FELA referred to the employee's implied consent to assume the risks entailed in employment. So Congress in adopting the 1939 amendments sought to prevent juries from reducing a plaintiff's recovery because the plaintiff ...


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