Appeal from judgment for defendant entered on special verdicts after jury trial in United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge. Reversed and remanded for new trial.
Lumbard, Pratt, and Altimari, Circuit Judges.
Plaintiff Richard Gallose, an employee of defendant Long Island Railroad ("the LIRR"), appeals from a judgment for defendant entered on special verdicts after a jury trial in the United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge. Gallose contends (1) that the trial court erred when it found as a matter of law that one of the LIRR's employees was not acting within the scope of her employment, and (2) that the trial court misinstructed the jury on Gallose's claim that the LIRR had negligently failed to maintain a safe workplace. We agree on both points, and reverse and remand for a new trial.
On June 6, 1987, Linda Brookins, employed as a bar car attendant by the LIRR, reported to work at the LIRR facilities in Jamaica, New York. Concerned about the evidence of drug use and the many vagrants she had seen in the vicinity, and in order to alert her to possible intruders, Brookins brought with her a large German Shepherd-mix dog, which she locked in a bathroom near her work area.
Gallose, a police officer employed by the LIRR, was on patrol that day near the area where Brookins worked. As he came around a corner, Brookins's dog escaped from the bathroom and attacked, biting Gallose on the upper arm.
Gallose brought suit against the LIRR under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., alleging two related, but separate, theories of liability. First, Gallose contended that Brookins was negligent in bringing the dog to work with her, in keeping the animal confined in a bathroom, and in allowing it to escape and attack him, and that the LIRR was liable under the FELA for Brookins's negligent conduct. Second, Gallose maintained that the LIRR had breached its duty to exercise reasonable care in providing a safe workplace.
At trial, the jury heard undisputed testimony regarding the above facts. It also heard conflicting testimony as to whether the LIRR police or other officials previously had knowledge of the dog's presence at the work site. At a charging conference held just before closing arguments, plaintiff requested the district court to instruct the jury on the provisions of the FELA, and to submit to the jury a special verdict form asking: (1) whether Brookins was negligent when she brought the dog to work, locked it in the bathroom, and then allowed it to escape; (2) if so, whether these negligent actions contributed to plaintiff's injuries; (3) whether the LIRR knew or should have known that Brookins's dog was on the premises; and (4) if so, whether, in light of this knowledge, the LIRR used reasonable care to ensure that the workplace remained safe.
Judge Wexler, in large part, refused these requests. First, as to Gallose's claim based on Brookins's negligence, Judge Wexler correctly ruled that in order for the LIRR to be liable under the FELA for Brookins's negligence, her negligent conduct must have occurred within the scope of her employment, but he then concluded that Brookins's bringing of a large dog to work fell outside the scope of her employment as a matter of law. He therefore refused to submit this claim to the jury.
Second, as to Gallose's claim that the LIRR had negligently failed to provide a safe workplace, the district court held that the LIRR could be liable only if the dog had vicious propensities and the LIRR knew of those propensities. The court specifically rejected plaintiff's contention that knowledge of the dog's presence at the work site was sufficient to require further inquiry; rather, the court held, "[there] must be knowledge to the Long Island Railroad that the dog had vicious propensities."
Over plaintiff's objections, the district court then instructed the jury and submitted to them a special verdict form consisting of three questions:
1. Did the dog have vicious propensities?
2. Did the Long Island Railroad have knowledge that the dog had ...