Butynski v. Springfield Terminal Railway Co.

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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