United States Court of Appeals
For the First Circuit
No. 09-1164
DONALD J. BUTYNSKI,
Plaintiff, Appellant,
v.
SPRINGFIELD TERMINAL RAILWAY COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Stahl, Circuit Judges.
Thomas Lesser, with whom Lesser, Newman & Nasser was on brief,
for appellant.
Karen M. Thursby, with whom Herlihy, Thursby & Herlihy, LLP
was on brief, for appellee.
January 22, 2010
SELYA, Circuit Judge. This is a personal injury action
brought pursuant to the Federal Employers' Liability Act (FELA), 45
U.S.C. §§ 51-60. The jury found the defendant negligent but
reduced the award of damages substantially based on a finding of
contributory negligence. The plaintiff appeals, posing claims of
both instructional error and evidentiary insufficiency. In the
end, however, all roads lead to Rome, and a single exegesis
suffices to show that the record contains evidence adequate to
permit jury consideration of the disputed issue (thus defeating the
claim of instructional error) and to ground a finding on that issue
(thus defeating the claim of evidentiary insufficiency).
Accordingly, we answer both questions at one fell swoop and affirm
the judgment below.
We rehearse the facts as the jury could have found them,
mindful that "when the losing party protests the sufficiency of the
evidence, the court of appeals must take both the facts and the
reasonable inferences therefrom in the light most hospitable to the
jury's verdict." Correa v. Hosp. San Francisco, 69 F.3d 1184, 1188
(1st Cir. 1995).
Defendant-appellee Springfield Terminal Railway Co.
(STRC), an employer subject to the FELA, employed plaintiff-
appellant Donald J. Butynski for nearly a quarter of a century as
a trackman. The plaintiff's base of operations was the STRC rail
yard in East Deerfield, Massachusetts, but his job description
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called for him to work as needed along the STRC's rail lines
throughout western Massachusetts.
On December 11, 2003, while part of a crew assigned to
repair tracks in Otter River, the plaintiff slipped and fell. In
trying to break his fall, he fractured his wrist. His injuries
were disabling and spelled the end of his career with STRC.
For some two weeks before the plaintiff's fall, Otter
River had experienced rain, snow, and frigid temperatures. On the
day of the incident, the work site was icy (and, therefore,
slippery). That condition was open and obvious.
In the winter, icy conditions are common fare on the
STRC's lines. For that reason, STRC routinely furnishes its track-
repair personnel with ice creepers — safety devices, capable of
being strapped to work boots, which contain embedded metal cleats
designed to improve the wearer's footing on snow and ice. Ice
creepers are generally sturdy, and once STRC furnishes a pair to a
trackman, there is no set schedule for periodic replenishment. If
the trackman needs new ice creepers because his are worn out or
lost, it is his responsibility to request replacements.
The plaintiff's foreman testified that, given the
slippery conditions, wearing ice creepers was an appropriate safety
measure at the time and place of the incident. Nevertheless, the
plaintiff did not don ice creepers that day because his were
stretched out and no longer fit properly. He admitted that he
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knew, months earlier, that his ice creepers were shot. He said
that he unsuccessfully requested replacements on approximately four
occasions during the fall of 2003. His foreman confirmed that the
plaintiff had asked for new ice creepers.
STRC denied that any such requests had been made.
Various supervisory personnel at the rail yard testified that they
could not recall the plaintiff either complaining about the
condition of his ice creepers or seeking new ones. The railroad
had no record of any such request.
Relatedly, there was no shortage of ice creepers in stock
during 2003. For example, one supervisor testified that, prior to
December 11, the rail yard had received seventy-eight pairs of ice
creepers (some large and some extra-large) and that ice creepers
were in adequate supply. STRC's witnesses stated that ice creepers
were typically available upon request and, in the event that ice
creepers were not immediately on hand to satisfy a request, new
ones normally would be provided within a week.
In its answer to the complaint, STRC denied liability and
pleaded contributory negligence as an affirmative defense.
Consistent with this pleading, it advised the court in a pretrial
submission that it would press for a jury instruction on that
issue. At the close of all the evidence, STRC reaffirmed that it
desired an instruction on this defense. The plaintiff objected to
any instruction on contributory negligence and moved for judgment
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as a matter of law with respect to that issue. The district court
viewed contributory negligence as a live controversy and therefore
denied the motion for judgment as a matter of law. Then, over the
plaintiff's objection, the court instructed the jury, in relevant
part:
Contributory negligence is fault on the
part of the person injured, which cooperates
in some degree with the negligence of another,
and so helps to bring about the injury. By
the defense of contributory negligence,
defendant in effect alleges that, even if
defendant's negligence was one of the causes
of plaintiff's injuries, plaintiff himself, by
his own failure to use ordinary care under the
circumstances for his own safety, also
contributed one of the causes of any injuries
and damages he may have suffered. It was
plaintiff's duty on December 11, 2003, to use
reasonable care to avoid or minimize risk and
possible injury to himself.
The jury found STRC liable and fixed the plaintiff's
damages at $511,886. It then found the plaintiff contributorily
negligent and allocated fault sixty percent to him and forty
percent to STRC. Accordingly, the jury returned a verdict in favor
of the plaintiff for $204,754.
The plaintiff seasonably renewed his motion for judgment
as a matter of law with respect to the contributory negligence
defense. See Fed. R. Civ. P. 50(a)-(b). The district court denied
the renewed motion, finding sufficient evidence of contributory
negligence to support the jury's determination. This timely appeal
ensued.
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In this venue, the plaintiff contends that the trial
court should not have charged the jury on contributory negligence
and that, in all events, the finding of contributory negligence was
bereft of any evidentiary foundation. Although these are framed as
separate assignments of error, they are for all practical purposes
one and the same. The plaintiff's claim of instructional error
does not take issue with the form or phrasing of the jury
instruction but, rather, posits that the evidence did not warrant
giving such an instruction at all. This is exactly the same
rationale on which his argument regarding the motion for judgment
as a matter of law rests.
The nature of the applicable standards of review
illustrates why, in this instance, we can treat these two claims of
error in a single exegesis. We review de novo a decision to
instruct the jury on a particular issue, see SEC v. Happ, 392 F.3d
12, 28 (1st Cir. 2004), asking whether the evidence, viewed in the
light most favorable to the proponent of the instruction, justifies
jury consideration of the underlying issue. See Levinsky's, Inc.
v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir. 1997).
Similarly, we review de novo the denial of a motion for judgment as
a matter of law, Correa, 69 F.3d at 1191, asking whether the
evidence, viewed in the light most favorable to the nonmovant,
warrants jury consideration. Zimmerman v. Direct Fed. Credit
Union, 262 F.3d 70, 75 (1st Cir. 2001). We will not overturn
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either the lower court's decision to instruct on an issue or its
eschewal of judgment as a matter of law unless, at a bare minimum,
the record reveals an insufficient evidentiary basis for the
decision. See, e.g., Davis v. Rennie, 264 F.3d 86, 108-09 (1st
Cir. 2001) (jury instruction); Zimmerman, 262 F.3d at 75 (judgment
as a matter of law).
Here, the congruence of these standards is patent. In
the last analysis, each claim of error depends on a showing that
the record contains an insufficient evidentiary predicate to
justify jury consideration of the contributory negligence defense.
Thus, for ease in exposition, we proceed to discuss both claims of
error under the carapace of the claim of instructional error.1
Evaluation of that claim starts with the statutory
scheme. FELA creates a federal cause of action for injured workers
in the railroad industry. 45 U.S.C. § 51. Congress has specified
the rudiments of the right of action in the statute itself. Those
rudiments include a low threshold for proving fault on the
employer's part (and, thus, a low threshold for liability). See
id.; Stevens v. Bangor & Aroostook R.R. Co., 97 F.3d 594, 597-98
(1st Cir. 1996). Contributory negligence is available as a
defense. 45 U.S.C. § 53. It is not a complete bar to a
plaintiff's recovery but, rather, operates to diminish the recovery
1
There is one exception, see infra note 3 and accompanying
text, but that is not a matter of any consequence.
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in proportion to the parties' comparative fault. See id.; Norfolk
S. Ry. Co. v. Sorrell, 549 U.S. 158, 168 (2007). Congress has not
spelled out the dimensions of the defense, so courts must hew to
its common law formulation. See Sorrell, 549 U.S. at 168, 171; see
also Jacobson v. N.Y., New Haven & Hartford R.R. Co., 206 F.2d 153,
155 (1st Cir. 1953) (explaining that when FELA does not
specifically provide otherwise, concepts like negligence and
contributory negligence may be fleshed out from federal common
law).
An employer in a FELA case, like a prototypical defendant
at common law, has the burden of proving the plaintiff's
contributory negligence. Sorrell, 549 U.S. at 171. To do so, the
employer must show that "the plaintiff's own negligence played a
part in causing the injury." Hopkins v. Jordan Marine, Inc., 271
F.3d 1, 3 (1st Cir. 2001);2 accord Wright v. Ark. & Mo. R.R. Co.,
574 F.3d 612, 616-17 (8th Cir. 2009). An employer who has asserted
a defense of contributory negligence in a FELA case is entitled to
a jury instruction on that defense as long as the record contains
some evidence from which contributory negligence can be inferred.
See Harris v. Ill. Cent. R.R. Co., 58 F.3d 1140, 1144 (6th Cir.
1995); Wise v. Union Pac. R.R., 815 F.2d 55, 57 (8th Cir. 1987);
2
Hopkins is a Jones Act case, but the Jones Act incorporates
the relevant provisions of the FELA by reference. See 46 U.S.C.
§ 30104. Thus, precedent under the Jones Act is deemed instructive
in FELA cases, and vice versa. See Ellenwood v. Exxon Shipping
Co., 984 F.2d 1270, 1281 n.15 (1st Cir. 1993).
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see also Wilson v. Mar. Overseas Corp., 150 F.3d 1, 11-12 (1st Cir.
1998).
In this case, the plaintiff's theory of liability
related to STRC's failure to provide him with proper equipment
when it assigned him, in icy conditions, to repair the tracks.
The jury found STRC liable, and that finding is not challenged on
appeal. Thus, the lens of our inquiry narrows to focus on the
jury's finding of contributory negligence and, more specifically,
the propriety vel non of allowing the jury to decide that issue.
This, in turn, hinges on whether the jury supportably could have
found that the plaintiff's acts or omissions played a part in
bringing about his injuries.
The record makes manifest that the plaintiff did not
wear ice creepers on the day in question and that, in the opinion
of some, wearing them would have made the workplace safer. The
record makes equally clear that the plaintiff did not wear ice
creepers because the ones that STRC had furnished him were no
longer usable. The jury heard contradictory evidence (or, at
least, evidence from which contradictory inferences could be
drawn) about why the plaintiff was without usable ice creepers at
that time. Viewing the evidence as a whole, we think that the
jury reasonably could have found either that the plaintiff failed
to request new ice creepers or, at least, that he did not request
them in a timeous manner. Relatedly, the jury could have found
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that STRC had ice creepers on hand and available for the asking.
Findings of this sort would have supported a plausible conclusion
that the plaintiff was, in part, the author of his own misfortune.
Where, as here, there is room for a jury to choose among
competing, record-rooted inferences, there is no basis for taking
the issue from the jury. See Hopkins, 271 F.3d at 3-4; Wilson,
150 F.3d at 12. There was, therefore, no error in instructing the
jury on the issue of contributory negligence.
The plaintiff musters a trio of counter-arguments aimed
at blunting the force of this reasoning. We examine these
counter-arguments sequentially.
First, the plaintiff contends that, by means of its
opening statement and its summation, STRC admitted that he (the
plaintiff) was not negligent (and, thus, foreclosed jury
consideration of that issue). This contention comprises more cry
than wool.
We begin with first principles. Counsel can make
admissions during trial that will bind the client. Levinsky's,
Inc., 127 F.3d at 134. Such admissions can be derived from the
contents of opening statements or closing arguments. Id. In
order to qualify as an admission under this rubric, such a
statement, when viewed in context, must be clear and unambiguous.
Id.; see also Best v. District of Columbia, 291 U.S. 411, 415-16
(1934) (cautioning that counsel's opening statement will not
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qualify as an admission unless the supposedly admitted fact
"clearly appear[s]" beyond all doubt to have been admitted).
In both his opening statement and his closing argument,
STRC's lawyer leaned heavily on the theory that STRC should not be
held liable because the December 11 incident, though unfortunate,
was merely an accident that occurred without fault on anyone's
part. But the lawyer did not in either instance put all his
client's eggs in this one forensic basket. This multifaceted
approach is particularly evident in his summation, where he
pointed out conflicts in the evidence anent the availability of
ice creepers and whether the plaintiff had requested new ones.
The plaintiff nonetheless asserts that, when all was
said and done, STRC's attorney should be deemed to have admitted
that he (the plaintiff) was free from fault. In examining this
assertion, we think it useful to address the opening and closing
separately. We start with the opening statement.
STRC's counsel told the jury that the proof would likely
show that what had happened was "nobody's fault." He called the
event an "accident" and did not mention contributory negligence as
such. But this is at most suggestive; the lawyer also pointed the
jury to anticipated evidence about the supply of ice creepers on
hand and the uncertainty about whether the plaintiff had made a
request to replace his dilapidated ice creepers. Given these
comments, we do not believe that the opening statement fairly can
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be said to constitute a clear and unambiguous admission that the
plaintiff was free from fault.
This conclusion is reinforced by the fact that the
plaintiff did not at that point move to take the issue of
contributory negligence from the jury. Cf. Franchi Constr. Co. v.
Combined Ins. Co., 580 F.2d 1, 8 (1st Cir. 1978) (noting trial
court's power to direct verdict immediately following plaintiff's
opening statement); Slotnick v. Staviskey, 560 F.2d 31, 32-34 (1st
Cir. 1977) (affirming directed verdict based on opening
statement). Rather, the opening statement ended; the trial went
forward; and STRC, through both cross-examination and the proffer
of its own witnesses, introduced evidence relating to the degree
of care exercised by the plaintiff. Had the opening statement
contained a clear and unambiguous admission that the plaintiff was
not guilty of contributory negligence, it is likely that the case
would have proceeded quite differently.
In his summation, STRC's lawyer argued that he "felt
this was just an accident that happened on one day. [The
plaintiff] lost his footing, as he said in his own report . . . ."
Once again, there was no contemporaneous claim by the plaintiff
that the summation constituted an admission relative to
contributory negligence — and for good reason. Having studied the
closing argument in its entirety, we are unable to find a clear
and unambiguous concession anent the plaintiff's due care.
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Taken in context, the references to an "accident" were
a tactic designed to persuade the jury that STRC's conduct was not
a cause-in-fact of the plaintiff's injury. The speaker did not
exclude other possibilities but, indeed, pointed out discrepancies
in the evidence pertaining to whether the plaintiff had requested
ice creepers and reminded the jury about testimony attesting to
the ready availability of an adequate supply of ice creepers.
Those allusions would have been senseless had the absence of
contributory negligence been admitted.
We conclude, without serious question, that contributory
negligence was a live issue, admitted neither during STRC's
opening statement nor during its closing argument. The mere fact
that a party's counsel, in addressing the jury, chooses to
emphasize one theory of the case does not, in and of itself,
operate to waive the party's other defenses. See, e.g., Haines v.
Risely, 412 F.3d 285, 289-90 (1st Cir. 2005); Levinsky's, Inc.,
127 F.3d at 134-35.
The plaintiff next strives to convince us that the
district court erroneously employed a "cookie cutter" approach to
instructing the jury; that is, that the court believed that
contributory negligence was an issue for the jury in every slip-
and-fall case, regardless of the proof. We are not persuaded.
To be sure, the trial court did say at one point that it
typically instructed on contributory negligence in slip-and-fall
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cases. Be that as it may, the argument that the court applied a
mechanical rule is a non-starter. The evidence in this case,
viewed in the light most favorable to the proponent of the
defense, warranted an instruction on contributory negligence.
Thus, there was no reversible error here.
The plaintiff's last argument is textual.3 It proceeds
from the premise that the district court instructed the jury to
evaluate the plaintiff's conduct on December 11, 2003, and not
otherwise. Because no one introduced evidence of negligent
conduct by the plaintiff on that day, the argument goes, any
finding of contributory negligence must have been a camouflaged
finding of assumption of the risk. This would imply error because
assumption of risk, unlike contributory negligence, is not
cognizable as a defense in FELA cases. See 45 U.S.C. § 54.
At common law, the distinction between assumption of the
risk and contributory negligence is well-settled. Assumption of
the risk arises out of the knowing and voluntary acceptance of a
dangerous condition. See Seaboard Air Line Ry. v. Horton, 233
U.S. 492, 504-05 (1914); Hopkins, 271 F.3d at 3-4; see also
Restatement (Second) of Torts §§ 496A, 496D (1965). In contrast,
contributory negligence arises out of any "careless act or
omission on the plaintiff's part tending to add new dangers to
3
Technically speaking, this argument is not a claim of
instructional error but, rather, a pure claim of evidentiary
insufficiency.
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[existing] conditions." Taylor v. Burlington N. R.R. Co., 787
F.2d 1309, 1316 (9th Cir. 1986); see also Seaboard Air Line Ry.,
233 U.S. at 503-04 (defining contributory negligence as a failure
by the plaintiff to use ordinary care).
On this record, we do not think it can be said that the
jury conflated these two concepts. Although the district court
told the jury that "[i]t was plaintiff's duty on December 11,
2003, to use reasonable care to avoid or minimize . . . possible
injury to himself" (emphasis supplied), it makes no sense to read
that phrase in isolation and treat it as a circumscription of the
issue of contributory negligence. Jury instructions must be
reviewed contextually. An inquiring court should look at the
charge as a whole and give the words used to convey the judge's
message a common-sense interpretation. See Ellis v. United
States, 313 F.3d 636, 645 (1st Cir. 2002); Elliott v. S.D. Warren
Co., 134 F.3d 1, 6 (1st Cir. 1998); see also Hopkins, 271 F.3d at
4 (stating that "the test of jury instructions is not abstract
perfection").
In the case at hand, the jury heard a great deal of
testimony about the process for ensuring that track-repair workers
had ice creepers, the availability of replacement ice creepers,
the condition of the plaintiff's ice creepers, and when the
plaintiff requested new ones. This evidence framed the extent to
which the plaintiff's acts and omissions were put in issue. The
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jury was instructed in broad terms, quoted supra, to consider the
plaintiff's part (if any) in causing the accident.
It is also worth noting that the district court put the
non-issue of assumption of the risk off limits. The court warned
the jury against reducing the plaintiff's recovery based on
assumption of the risk, stating:
Keep in mind also that even though an employee
such as plaintiff may know that the railroad
has been negligent in failing to furnish him
with necessary equipment such as properly
functioning ice creepers, he does not, merely
by continuing to perform his job, act
negligently himself.
. . . Contributory negligence may
arise only from plaintiff's own act or acts of
negligence, not from knowingly taking on a
risk inherent in the work environment or a
risk created by defendant's negligence.
Given these facts, the context of the trial does not
lend itself to the notion that the charge limited the jury's
consideration of the plaintiff's due care to the day of the
accident. The court's date-specific allusion represented an
attempt — albeit an awkward attempt — to focus the jury's
attention on the circumstances leading up to the fall. Fairly
read, the charge did not direct the jury to play the ostrich and
ignore the copious evidence of plaintiff's earlier acts and
omissions that formed the basis for STRC's contributory negligence
defense.
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We need go no further. The plaintiff's claim of
instructional error fails. That conclusion requires us, for
reasons already stated, to uphold as well the denial of the
plaintiff's motion for judgment as a matter of law.
Affirmed.
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Butynski v. Springfield Terminal Railway Co.
Court: Court of Appeals for the First Circuit
Date filed: 2010-01-22
Citations: 592 F.3d 272
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