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United States District Court, Southern District of New York

August 18, 2003


The opinion of the court was delivered by: Charles Haight, District Judge


In this diversity case for personal injuries tried to a jury, plaintiff James Peebles moves pursuant to Rule 59, Fed.R. Civ. P., for a new trial on liability and damages. Defendant Circuit City Stores, Inc. ("Circuit City") opposes that motion in its entirety. For the reasons that follow, the Court grants Peebles a new trial, but limited to the issue of damages.


In November 1998 plaintiff James Peebles was employed by the Cloverleaf Transportation Company ("Cloverleaf") as a truck driver. Cloverleaf's fleet of tractor-trailers serviced a number of companies by delivering shipments of goods or products from one location to another. At the pertinent times one of Cloverleaf's clients was Circuit City, a prominent manufacturer of electronic appliances.

Peebles, who was 29 years old when the accident in suit occurred, had worked as a truck driver for 11 years prior to that time. At Cloverleaf, Peebles testified, his job "was to deliver the product."*fn1 Upon receiving an assignment, Peebles would "go on dispatch, pick up a trailer, take it [ Page 2]

to wherever you may have to go to get loaded or unloaded."*fn2 Peebles had been trained as a tractor-trailer driver by a prior employer, United Van Lines, and received his license as a tractor-trailer driver in 1994. From 1994 until his injury in November 1998 Peebles drove a tractor-trailer continuously.

On November 4, 1998, Peebles delivered a trailer to the Nestles Chocolate facility at Allentown, Pennsylvania. The Cloverleaf dispatcher instructed Peebles to drive the tractor component of his rig to nearby Bethlehem, Pennsylvania, where Circuit City maintained a large warehouse for its products, and pick up a loaded trailer to be driven to some other place.*fn3 This was "the fifth or the fourth" job at the Circuit City warehouse to which Peebles had been dispatched.*fn4 The trailer was loaded by Circuit City employees, and Peebles played no part in that process. The Cloverleaf trailers were 53 feet long, 102 inches wide, with an overall height of 13 feet 6 inches, and an "inside height of the box" of "about nine feet."*fn5

After the execution of certain paperwork, Circuit City warehouse personnel instructed Peebles to drive the trailer to a Circuit City retail store in Buffalo, New York, where part of the contents would be unloaded, and then to another Circuit City store in Rochester, New York, for the [ Page 3]

unloading of the balance.

On his first job at Circuit City, Peebles was told by a Circuit City employee that "I had to be inside the trailer while it's unloaded." Peebles had not followed that procedure before, so he called his dispatcher at Cloverleaf, who "told me the same thing that was in their policy that I did have to be in that trailer for only Circuit City load."*fn6 Peebles conformed to that practice on all his Circuit City runs. When a trailer was being unloaded at Circuit City retail store, Peebles would enter the trailer, check off the numbers on each box or carton against an inventory list, and "sit it on the belt or move it close to the side or on the floor."*fn7 The "belt" was a conveyor belt that Circuit City employees place "inside the trailer that pulls the boxes out."*fn8 Circuit City retail store employees, who went into the trailer, operated the conveyor belt to remove the boxes from the trailer. Peebles' responsibility was to check each box "before it gets on the belt."*fn9 The conveyor belt stretched "from the warehouse into the trailer."*fn10

Unloading a portion of the trailer's contents at Buffalo was accomplished without incident. Peebles then drove to the Circuit City store at Rochester, arriving later on the same day, November 4, 1998. Peebles testified that while he was working inside the trailer in the manner just described, "I was bending over picking up a box for the number, and as I was bent over, another box fell down [ Page 4]

and hit me in the back."*fn11 The box contained a television set. When it struck Peebles, "I fell to my knees and twist."*fn12

Plaintiff's theory at trial was that this incident caused a disabling, painful and permanent injury to his back. The case for plaintiff was that City Circuit employees at the Bethlehem warehouse negligently stowed the boxes and cartons in the trailer in an unsafe and unstable manner, and failed to secure them properly.

Circuit City contended that the incident never occurred and Peebles had fabricated his account. In addition, during cross-examination of Peebles counsel for Circuit City asked a number of questions probative of Peebles' own negligence and assumption of the risk, factors that would come into play if the jury found, contrary to Circuit City's first contention, that the incident described by Peebles had in fact taken place.

Counsel for Circuit City requested the Court to charge the jury on comparative negligence and assumption of the risk. Counsel for Peebles objected to an assumption of the risk charge, contending that the charge should be given only in cases involving injuries at sporting events. I overruled that objection and charged the jury on comparative negligence and implied assumption of the risk, as follows:

You must next consider whether the plaintiff was also negligent and whether the plaintiff's conduct contributed to causing his injury. The burden is on the defendant to prove that the plaintiff was negligent and that his negligence contributed to causing the merchandise to fall on the plaintiff. [ Page 5]
To determine whether Mr. Peebles was comparatively negligent, you apply the same definition of negligence discussed earlier, that is, did Mr. Peebles take, or fail to take, actions which a reasonably prudent person would have taken in the circumstances. You also apply the same rule of causation, that it, was Mr. Peebles' negligence, if any, a substantial factor in bringing about his injury as I have just defined that concept. Your determination should be based on a preponderance of the evidence, and I repeat that with respect to Mr. Peebles' comparative negligence, if any, Circuit City bears the burden of proof.
If you find that Mr. Peebles was not negligent, or if negligent, that his negligence did not contribute to causing the injury, you should go no further. If, however, you find that the plaintiff was negligent and that his negligence contributed to causing the injury, you must then apportion the fault between the plaintiff and the defendant.
Weighing all the facts and circumstances, you must consider the total negligence, that is, the negligence of both the plaintiff and defendant which contributed to causing the injury, and then determine what percentage of fault is chargeable to each. In your verdict, you will state the percentages you find. The total of those percentages must equal one hundred percent.
For example, if you should find that the defendant and the plaintiff were equally negligent you would report that each was 50% responsible. If you should find that one party was more negligent than the other in causing the injury, you would assign a higher percentage to that party and a lower percentage to the other, with the total of the percentages equaling one hundred percent. Note that in arriving at the total amount of damages, you must not consider the percentages of negligence but simply report the total amount of the plaintiff's damages, should you find any.
In addition to claiming that Mr. Peebles was, through his own negligence, at least in part liable for his own injuries, defendant also claims that plaintiff assumed the risk of injury. The law provides that where the defendant owes a duty of reasonable care to the plaintiff, but the plaintiff voluntarily engages in an activity involving a risk of harm and the plaintiff knows or fully understands, or should have known and fully understood, the risk of harm, the plaintiff's damages must be reduced by the extent to which those damages were caused by the plaintiff's own conduct. [ Page 6]
Circuit City claims that Mr. Peebles knew and fully understood that he might be injured if he undertook to unload the merchandise from the trailer, and therefore he assumed the risk of the injury. It is the defendant's burden to prove that the plaintiff assumed the risk of injury.
To show an assumption of the risk, you must find that the plaintiff should have known and fully understood the risk of injury. If you do so find, then you will find that he assumed the risk of injury and you must consider to what degree that assumption of risk contributed to the injury. If you find that he did assume the risk, you will state to the Court on the form I will provide to you the respective degrees of fault of the plaintiff and the defendant. If you find that the plaintiff did not know and fully understand the risk of injury and if you find that, based upon the evidence, he could not have known and fully understood the risk of injury, you will find that he did not assume the risk of injury and you may proceed to consider the other issues in the case.
The jury deliberated and then reported its verdict, following the special verdict form given to them for the purpose. The questions put to the jury on the special verdict form and their answers were as follows:

1. Has plaintiff James Peebles proved by a preponderance of the evidence that defendant Circuit City Stores, Inc. was negligent with respect to an accident which occurred on November 4, 1998?
The jury answered "Yes."

2. Has plaintiff James Peebles proved by a preponderance of the evidence that the negligence of Circuit City Stores, Inc. was a proximate cause of the accident?
The jury answered "Yes."

3. Has defendant Circuit City Stores, Inc. proved by a preponderance of the evidence that plaintiff James Peebles was negligent with respect to the accident?
The jury answered "Yes." [ Page 7]

4. Has defendant Circuit City Stores, Inc. proved by a preponderance of the evidence that the negligence of plaintiff James Peebles was a proximate cause of the accident?
The jury answered "Yes."

5. What was the percentage of fault of:

Circuit City Stores, Inc. James Peebles

The jury answered 40% for Circuit City Stores and 60% for James Peebles.
6. State separately the total amount of past damages that you find for James Peebles from the date of the accident to the date of your verdict for each of the following:
(a) lost earnings (b) pain and suffering and loss of enjoyment of life
The jury answered "150,000" for past lost earnings and "$100,000" for past pain and suffering and loss of enjoyment of life.
7. State separately the total amounts of damages that you find for James Peebles from the date of the verdict for the future for the following:
(a) lost earnings (b) pain and suffering and loss of enjoyment of life
The jury answered "none" with respect to both categories of future damages.
Peebles moves under Rule 59 for a new trial on both liability and damages. As to liability, Peebles contends that the jury's assessment of 60% of the fault to him was disproportionate and against the weight of the evidence. Peebles ascribes this defect in part to the Court's giving both a comparative negligence and an implied assumption of the risk charge, since in his view the latter charge was improper as a matter of law. As to damages, Peebles contends that the jury's refusal to [ Page 8]

award any future damages was against the weight of the evidence.

Circuit City defends all aspects of the verdict.


A. Standards of Review

1. The Charge

The propriety of the Court's charge is measured by the governing substantive law, in this case the law of New York State.*fn13

2. The Rule 59 Motion for a New Trial

Rule 59(a) provides: "A new trial may be granted . . . for any of the reasons for which new trials are granted in actions at law in the courts of the United States." This broadly stated authority "is confided almost entirely to the exercise of discretion on the part of the trial court." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980).

In this circuit, the standards informing a trial court's discretion in granting or denying a new trial are well established. See, e.g., DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 133-34 (2d Cir. 1998):

The standard governing a district court's consideration of a Rule 59 motion for a new trial on the ground that the verdict was against the weight of the evidence differs in two significant ways from the standards governing a Rule 50 motion for judgment as a matter of law. Unlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict. Moreover, a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner. A [ Page 9]
court considering a Rule 59 motion must bear in mind, however, that the court should only grant such a motion when the jury's verdict is egregious. Accordingly, a court should rarely disturb a jury's evaluation of a witness's credibility.
(citations and internal quotation marks omitted).

More recently the Second Circuit, while reiterating that on a Rule 59 motion for a new trial the trial court may weigh the evidence, nonetheless cautioned that "for a district court to order a new trial under Rule 59(a), it must conclude that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice, i.e., it must view the jury's verdict as against the weight of the evidence." Manley v. Ambase Corp., ___ F.3d ___, 2003 WL 21731532 (2d. Cir. July 28, 2003) at *5.

B. The Propriety of the Assumption of the Risk Charge

1. The Law

In 1975 the New York legislature enacted CPLR § 1411, which codified a system of comparative negligence without referring to the common law doctrine of assumption of the risk. That omission gave rise to a question about the continuing viability of the assumption of the risk doctrine, which New York courts have addressed since the enactment of § 1411. One court has written:

Notwithstanding the enactment of CPLR sec. 1411 in 1975, two separate doctrines of assumption of risk emerged in the case law. One doctrine, known as `primary assumption of risk,' acts to completely bar recovery by a plaintiff who freely engages in conduct involving elevated risks of danger and expressly agrees to those risks. The second doctrine, known as implied assumption of the risk, does not completely bar recovery, but, consistent with CPLR sec. 1411, diminishes plaintiff's recovery in the proportion to which he may have contributed to his own injuries.
Fernandez v. City of New York, 645 N.Y.S.2d 1004, 1006 (Sup.Ct. N.Y. 1996) (internal citations [ Page 10]

omitted). In the allocation of fault between a plaintiff and a defendant, these two concepts of assumption of the risk differ both procedurally and substantively.

Abergast v. Board of Education of South New Berlin Central School, 65 N.Y.2d 161, 169 (Ct. App. 1985), is the seminal case that articulates the substantive and procedural differences between the two concepts. In Abergast the New York Court of Appeals said that express assumption of the risk precludes recovery, and results from "agreement in advance that defendant need not use reasonable care for the benefit of plaintiff and would not be liable for the consequences of conduct that would otherwise be negligent." Id. at 169. Implied assumption of the risk, on the other hand, "was founded not on express contract, but on plaintiff's voluntarily encountering the risk of harm from defendant's conduct with full understanding of the possible harm to himself or herself." Id.

The New York cases make clear that implied assumption of the risk is an aspect of comparative negligence. "The gravamen of both comparative negligence and implied assumption of the risk is `culpable conduct' on the part of the plaintiff." Fernandez, 645 N.Y.S.2d at 1005. Moreover, New York courts consistently hold that where there is evidence in the record to warrant them, a comparative negligence charge and an implied assumption of the risk charge (such as that given in the case at bar) should both be given. See, e.g., Romanchuck v. Havens, 552 N.Y.2d 725, 725 (4th Dept. 1990) ("The court properly instructed the jury on the theories of implied assumption of the risk and comparative negligence, as there was sufficient evidence to support both theories."), and McCabe v. Easter, 516 N.Y.S.2d 515, 517 (3rd Dept. 1987) ("[I]mplied assumption of risk and contributory negligence are distinct legal theories, and if the evidence . . . supports both theories, the defendant is entitled to a jury charge on both.") (emphasis added).

The propriety of giving an implied assumption of the risk is fact-intensive. The trial court [ Page 11]

must decide whether there is evidence in the record to allow a rational jury to find that the plaintiff "knows and fully appreciates such risk; the failure to use reasonable care to discover the risk may constitute contributory negligence, but it is not assumption of risk." McCabe, 516 N.Y.S.2d at 517.515, 517 (citations omitted). Stated another way, "[i]mplied assumption of the risk can be found where plaintiff voluntarily encounters the risk of harm of defendant's conduct with full understanding of the possible harm to himself." Fernandez, 645 N.Y.S.2d at 1006 (citing Arbegast).

If the plaintiff lacked that "full understanding of the possible harm to himself," an implied assumption of the risk charge is not appropriate. By way of illustration, New York courts have held that the charge should not be given where there was light snow on the ground, but plaintiff had no way of knowing that there was ice underneath the snow, McCabe, 516 N.Y.S.2d at 517; where at the time plaintiff fell in a parking lot, she was not aware of the ice on the ground, Panzarealla v. Multiple Parking Services, Inc., 661 N.Y.S.2d 139 (4th Dept. 1997); and where a biker had biked past a chained dog on several occasions and on the occasion in question had no way of knowing the dog would be unchained, Laylon v. Shaver, 590 N.Y.S.2d 615, 616 (4th Dept. 1992).

Plaintiff contends that an assumption of the risk charge is permissible only in cases involving sporting events. However, the two cases plaintiff cites for this proposition, Robinson v. Albany, 734 N.Y.S.2d 360 (3d Dept. 2001) and Stripe v. Maloney & Sons, Inc., 675 N.Y.S.2d (3d Dept. 1998), deal solely with primary, or express, assumption of the risk, which precludes recovery entirely. While these cases may be read to establish that under New York law primary assumption of the risk only applies to sporting events or activities, they neither hold nor suggest that implied assumption of the risk applies only in sporting contexts. Moreover, the New York cases cited supra which discuss implied assumption of risk did not involve sporting events; and those cases holding [ Page 12]

that the charge was inappropriate did so not because the situations did not involve sporting activities, but because there was no evidence that the plaintiffs had any reason to know of the particular risks involved.

Plaintiff cites a third case, Sammis v. Nassau/Suffolk Football League, 95 N.Y.2d 809 (Ct. App. 2000), for the proposition that the assumption of the risk doctrine never applies in ordinary negligence cases. Sammis does not support so broad a reading. The plaintiff sustained injuries while assisting defendant in removing a box from an elevated shelf in an equipment shed. Plaintiff moved for partial summary judgment on liability. The trial court denied that motion and granted summary judgment to defendants sua sponte, "applying the doctrine of assumption of risk" and holding that "by electing to help [defendant] move the box, plaintiff voluntarily undertook an activity that posed an obvious risk of injury." 95 N.Y.2d at 810. The Appellate Division affirmed. The Court of Appeals modified that order, stating:

Although the Appellate Division did not expressly invoke the doctrine of assumption of risk — a doctrine that does not apply to this case — it erred in concluding that plaintiff's act of helping [defendant] remove a box from an elevated shelf relieved defendants of any duty to plaintiff or otherwise established defendants' entitlement to summary judgment. At the same time, the proof also fails to provide a basis for granting plaintiffs' partial summary judgment motion on the question of defendants' liability. On this record, there exist issues of fact as to comparative fault for the fact finder to consider pursuant to CPLR 1411.
Id. This terse memorandum opinion does not explain why the assumption of the risk doctrine "does not apply to this case"; the Court of Appeals may have concluded that the particular facts of the case did not implicate the doctrine, and we have seen that the inquiry is fact-intensive. Alternatively, the Sammis court may have regarded itself as dealing with the primary assumption of risk doctrine; that [ Page 13]

is the view of a subsequent Appellate Division case relying upon Sammis. See Sulinski v. Ardio, Inc., 747 N.Y.S.2d 674, 675 (4th Dept. 2002) ("Defendants likewise are not entitled to summary judgment dismissing the complaint based on the doctrine of primary assumption of the risk, which has no application to this case.") (citing Sammis and other cases) (emphasis added). I decline to read Sammis as reversing sub silentio all the New York cases, some of them cited supra, which apply the quite different implied assumption of risk doctrine in negligence cases if the evidence supports the theory.

Accordingly I reject Peebles' contention that the doctrine of implied assumption of the risk cannot apply to the case at bar as a matter of law. Thus the propriety of the charge turns upon whether the evidence would justify the jury in finding that Peebles "voluntarily encounter[ed] the risk of harm of defendant's conduct with full understanding of the possible harm to himself." Fernandez, 645 N.Y.S.2d at 1006. I turn to a consideration of the evidence adduced at trial.

2. The Evidence

"In determining whether to charge the jury on the affirmative defense of implied assumption of risk the court is bound to consider the facts in the light most favorable to defendants." Fernandez, 645 N.Y.S.2d at 1006. That is a particular application of the general rule measuring whether the party with the burden of proof on an issue is entitled to have it submitted to the jury.

The evidence pertinent to City Circuit's affirmative defense of implied assumption of the risk is found in the testimony of plaintiff Peebles, on direct and cross-examination. Excerpts from that testimony follow.

(a) Peebles Direct Examination

Q. Now, when you went to this trailer the first time that you saw it, was that the first time you [ Page 14]
had ever seen what was inside of that Circuit City trailer? A: Yes. Q: How was it loaded up? A: Whichever way how the boxes came in the trailer, that's how they put it in the trailer. Q: What do you mean? A: If a small box came in, they put it on the floor. If a big box comes in they put it on top of that or whatever way it comes, in they load the boxes up right, sideways, upside down, anyway they can get it in the trailer.*fn14 Q: Can you describe what you saw when they first took down these plywood and load bars that day? A: I noticed that the load was leaning towards the top, leaning over from the top. Q: Can you describe how the boxes were placed in the truck when you saw them that day? A: They was loaded every way but the right way to me, my opinion. Q: Well, did they, were they floor to ceiling? A: Floor to ceiling, wall to wall.
Q: Now, after they took down the plywood and the load bars, what, if anything, did you see? A: In Buffalo? Q: Yes, let's take Buffalo. A: Well, I seen that the bottom boxes was crushed, because their heavy boxes was up on top. Q: What do you mean the heavy box? A: Like televisions, and computers, stereo speakers. Q: What do you mean by crushed? A: The smaller boxes that was on the bottom was crushed because they were loaded in sideways. Q: Now, did they begin to unload this truck? A: Yes. Q: What were you doing when they began to unload? A: Getting numbers. Q: What were you doing, when you say getting the numbers what exactly were you doing? A: Moving the boxes to find the number to match it up with the inventory. Q: When you match it with the inventory what did you do then? A: Make a checkmark. Q: Now, what, if anything, did you observe about the unloading process after it began? A: I observed, I seen that the boxes started leaning more and more as we started going more and more into the load. Q: What happened then? A: The manager there at Buffalo decided to make a videotape because he saw how the load look like it was going to fall down. Q: When you say, fall down, falling to the side or — A: Fall out. [ Page 15]
Q: Towards the back of the truck? A: Towards the back of the truck. Q: How, how were they taking the merchandise off the truck? A: They was grabbing the boxes. Q: And doing what? A: Putting them on the conveyor belt and rolling it away. Q: I want you to take a look at what it marked as exhibit 1D in evidence. Is that the process that you observed in Buffalo? A: Yeah, one of those types of belts. Q: When you say the belt, you're talking about that metal conveyor equipment in the middle of that photograph? A: Right. Q: Where would they stretch that conveyor from and where would they bring it to? A: They'll stretch from the warehouse into the trailer. The more it goes into the trailer, the more they'll stretch it in. Q: What would happen then after the conveyor was brought up and into the trailer? A: You put the boxes on it and slide it right out. Q: What did you observe about those how boxes would come off the trailer after they put them on the conveyor? A: They'll come out at a good great speed. Q: Were you there to stop them after they got on the conveyor? A: No. Q: [BY THE COURT] Where were you when the conveyor belt process started? A: I was always against the boxes inside the trailer. Q: You were inside the trailer? A: Yes.*fn15
(b) Peebles Cross-Examination

Q. I want to talk about this incident that you say happened regarding this box falling on you up in Rochester that you told us all about yesterday, okay? A. All right. Q. You told us that there was a woman in charge of the warehouse there in Rochester who met you and took the papers and unsealed the truck and so forth, right? A. Yes. Q. And she was standing inside the truck? A. No. She was standing on the dock of the warehouse.*fn16 Q. Now, Mr. Peebles, at Buffalo and then later at Rochester is it your testimony that you saw these boxes shifting and swaying and about to fall? [ Page 16]
A. Yes. Q. That was true in Buffalo and again in Rochester? A. Yes. Q. And did you call Cloverleaf to report this when you were at Buffalo or Rochester that you had opened the truck up and there was this load and it was shining and swaying, and it was unsafe? A. No, I didn't. Q. Did you tell anybody at Circuit City in Buffalo or Rochester, look, I'm not going to get involved in unloading this truck, it's unsafe. Look at these boxes, they're swaying and so forth? A. No, I didn't, because if I did that — Q. I just want to know whether you did or not? A. Okay. Q. You did not, right? A. No. Q. Now, you were a truck driver for about six years before this incident? A. More than that. Q. And would you say that it's important when unloading a truck that you're as careful as you can be because at times you're dealing with heavy boxes and things that could hurt you? A. Yes. Q. And you have to exercise your judgment and common sense, right? A. Yes. Q. Now, I think you told us yesterday, am I not correct, that you saw these boxes shifting and swaying, nevertheless you turned your back on this pile and then the box fell on you? A. Correct. Q. Were you exercising your professional judgment and common sense when you did that, when you turned your back on the pile of boxes? A. No. I just concerned [sic] of getting the box off the floor and getting the number off of it. Q. You weren't concerned about your own safety? A. I didn't think about that at the time. I was just trying to get the number off the box so everything could be unloaded so I could be on my way. Q. When you say, Mr. Peebles, you didn't think about it, did you think about the fact that this was a dangerous and unsafe condition? A. I wasn't really thinking about that, no. Q. You saw these boxes swaying back and forth though, right? A. They moved a little here and there, but nothing ever fell. Q. Did they just move a little or were they swaying back and forth like you said in your deposition and looked very dangerous? A. No, they'll move. You can see it actually move, but it's not like it was rocking back and forth. You can see every time we move one box you see the boxes other boxes move. Q. Is that normal situation or was that abnormal in your experience? A. No, it's not normal. Q. What's the normal situation? A. That all boxes stay straight. [ Page 17]
Q. When you saw the boxes not staying straight or moving what did that make you think about this pile of boxes?
A. That it was loaded incorrect.

Q. Did it make you think it was an unsafe situation?
A. I didn't think it was unsafe, but I saw it was incorrect.
Q. You saw it was what, sir?

A. Incorrect.

Q. So it was incorrect, but it was a safe situation, is that right?
A. It was, I thought it was suitable pretty much safe, that's why I was in there.*fn17
It is perfectly apparent from this testimony by the plaintiff that the charge with respect to comparative fault, to which plaintiff made no objection, was properly given to the jury. It is equally apparent that the charge on implied assumption of risk, to which plaintiff did object, was also proper. Peebles' testimony amply supported the assumption of the risk theory, in addition to that of comparative negligence. It is noteworthy that plaintiff did not call an expert witness to give an opinion that the Circuit City merchandise was improperly loaded and stacked in the trailer. Plaintiff furnished that testimony himself, drawing upon his general experience as a truck driver and his particular experience unloading Circuit City merchandise from trailers on four or five occasions prior to the trip in suit. Thus Peebles described the instability of the piles inside the trailer and the crushing of smaller boxes by the placing of larger boxes above them, and expressed the views that the boxes were "loaded every way but the right way, in my opinion," the amount of movement of the boxes in the piles was "not normal," and the piling of the boxes inside the trailer was "incorrect." Peebles' experience qualified him to express these opinions, and the jury clearly accepted them in [ Page 18]

finding that the negligence of Circuit City employees was a proximate cause of Peebles' injury. But that same experience leads inevitably to the companion conclusion that Peebles, by observing these abnormal and improper conditions in the stowage, and then unloading the boxes and turning his back on the piles inside the trailer as he described, voluntarily exposed himself to the risk of harm caused by Circuit City's conduct, with a full understanding (born of that experience) of the possible harm to himself.

Plaintiff contends that "both comparative negligence and implied assumption of the risk should not have been charged to the jury." Reply Brief at 9. He asserts that the "disproportionately large finding of fault against the plaintiff," namely, 60%/40%, "must be viewed in the context of the claim by the defendant throughout the trial that the accident never even occurred." Reply Brief at 9 (emphasis in original). From that premise, plaintiff fashions this argument:

The defendant, again, wants to have it both ways. On the one hand, it ignores the fact that the jury rejected this defense and found, by its verdict, that the accident did occur, and that it occurred as a result of the negligence of the defendant. On the other hand, however, the defendant wants to support the jury's verdict that this same accident (which purportedly never occurred), was nonetheless predominantly the fault of the plaintiff. It is clear that this inconsistent result could only have been achieved by the confusing argument presented by the defendant, coupled with a charge that the plaintiff was both negligent and had assumed the risk of being in the trailer.
Id. Plaintiff then reiterates his contention that "New York State Law does not support a submission of both charges to the jury in a matter in which issues of ordinary negligence are involved." Id.

That last assertion is simply wrong, as the discussion in Part II.B. 1. makes clear. The balance of plaintiffs argument is somewhat difficult to parse. He appears to perceive several "inconsistencies," referring in one breath to "this inconsistent result" reached by the jury, and in the [ Page 19]

next to "the confusing argument presented by the defendant," presumably confusing because the argument was inconsistent.

There is, of course, no substance to any of this. A jury verdict finding that both defendant and plaintiff were negligent and apportioning the fault between them is not "inconsistent" in any way; this is what juries do every day. As for Circuit City's defensive arguments, it is quite true that counsel tried (unsuccessfully, as it turned out) to persuade the jury that the accident never happened; but it hardly follows, as plaintiff appears to assert, that defendant was thereby precluded from arguing that if the accident occurred, it was largely the plaintiff's fault. Alternative pleadings and proofs have been commonplace since the introduction of modern rules of practice in the 20th century. Even in these enlightened times, a plaintiff may be in certain circumstances be held to an election of remedies; but plaintiff cites no authority for the proposition that a defendant in a negligence case must elect between the defenses of non-occurrence of the accident and the plaintiff's negligence contributing to it. That is not the law, which plaintiff implicitly acknowledged by objecting only to the implied assumption of risk charge while making no objection to the comparative negligence charge; if defendant's assertion that the accident never occurred had the preclusive effect plaintiff seems to suggest, neither charge should have been given.

Given Peebles' testimony at trial, I conclude that Circuit City was entitled in law to an implied assumption of the risk charge as well as a comparative negligence charge, and the Court's giving both charges to the jury was proper.

C. Plaintiff's Rule 59 Motion

Plaintiff moves for a new trial on both liability and damages. I will consider these two elements in turn. [ Page 20]

1. Liability

Plaintiff's principal contention in this motion on liability is that the implied assumption of the risk charge should not have been given. I have rejected that contention for the reasons stated in Part II.B.

To the extent that plaintiff's quoted reference to "a disproportionately large finding of fault against the plaintiff" is intended to argue that the jury's allocation was against the weight of the evidence and accordingly a new trial on liability should be granted under Rule 59(a), there is no merit to the argument.

Peebles having testified as he did at trial, a jury verdict allocating no degree of fault to him would have given Circuit City a solid basis for requesting a new trial. Instead, the jury placed 60% of the fault on Peebles and 40% on Circuit City. The jury would have been entitled in law to split the fault equally, or to reverse those particular percentages, or devise a different formula, so long as the allocation was not egregiously wrong or caused a miscarriage of justice. But the 60/40 allocation the jury reached cannot be so characterized. Allocating a higher percentage of the fault to Peebles is entirely rational under the evidence. During the unloading at Buffalo, Peebles acquired knowledge of the unstable and improper condition of the piles of boxes and cartons before any Circuit City employee at the Rochester store could have known of it. The manager of the Rochester store was present when the unloading at that facility began; Peebles could have expressed his concerns to her, and greater precautions would presumably have been taken. Quite apart from alerting the manager, Peebles could have exercised more caution on his own behalf while working inside the trailer. An experienced handler of this sort of shipment, Peebles could have asked the Circuit City employees at the Rochester assigned to the unloading to help him deal with the unstable [ Page 21]

piles of boxes, or at the very least not turned his back on the piles, in a position of unguarded vulnerability, so that he did not see a heavy boxed television set fall off the top of the pile, causing him grave injury. In these circumstances, the jury's allocation of 60% of the fault to Peebles, with Circuit City's 40% attributable to the employees at the Bethlehem warehouse who (on plaintiff's theory of the case) negligently loaded the merchandise into the trailer, is not egregious; nor does it constitute a miscarriage of justice; nor is it against the weight of the evidence.

Having weighed the evidence independently, and in the exercise of my discretion, I deny plaintiff's motion for a new trial on the issue of liability.

2. Damages

Plaintiff contends that the jury's refusal to award him any future damages was unjust and must be remedied. He moves under Rule 59 for "a new trial on the issue of future damages," Main Brief at 9, or, in the alternative, invokes "the inherent power of the Court for additur of damages and amending the judgment to include an award of damages for future lost earnings and future pain and suffering," Notice of Motion at 2.

That alternative remedy lies beyond the Court's power. See Fox v. City University of New York, No. 94 Civ. 4398, 1999 WL 33875 (S.D.N.Y. Jan. 26, 1999) at *11 ("It follows that, even in a diversity case presenting only state law claims, a federal trial judge cannot make an order of additur, even though his state court colleague could.") (reviewing cases).

But it is perfectly apparent that plaintiff is entitled to a new trial on damages. No extended discussion is necessary. Peebles testified that the accident resulted in a painful and disabling back condition. Conservative treatment failed to relieve the condition, and so on April 16, 2001, Peebles underwent a surgical laminotomy and fusion of his lumbar spine. These medical facts are proved [ Page 22]

by the medical files in evidence. The surgery was unsuccessful, and Peebles testified that he has continuing pain and limitation in his lower back that has prevented and continues to prevent his returning to work as a tractor-trailer operator.

The jury's answers to the special verdict form show that it found City Circuit's negligence contributed to Peebles' injury. More to the present point, the jury awarded Peebles $150,000 for past lost earnings and $100,000 for past pain and suffering and loss of enjoyment of life. For purposes of this analysis the amount for past lost earnings is the more significant, because it conforms to plaintiff's evidence with respect to the wages he lost through disability from the day of the accident to the date of the verdict. The award of that amount for past lost earnings unmistakably manifests the jury's finding that accident-related pain prevented Peebles from working during that entire past period of time. Given that finding, the jury's refusal to award Peebles anything for future lost earnings and pain and suffering can have no rational explanation.

A rational explanation for the jury's failure to award future damages cannot be found in the testimony of the two physicians who appeared as expert opinion witnesses: Dr. Lawrence Shields for plaintiff and Dr. Michael Weintraub for defendant.

Dr. Shields, having examined plaintiff's medical file including x-rays and MRls, gave his opinion that the accident caused Peebles' disabling back condition, reasoning that "he did not have the problem before this accident, and then he had it after this accident, and the accident is capable of producing this kind of a picture, and he had no other reason for having it."*fn18 Furthermore, Shields testified, plaintiff's condition was permanent in nature, "permanence" in this neurological context being defined as "a condition that has not changed by more than 5 percent in the previous year, and [ Page 23]

it's unlikely to change by more than 5 percent in the coming year."*fn19 Peebles satisfied those criteria because his disabling back condition had persisted unrelieved for more than four years.

Dr. Weintraub agreed that Peebles' condition was permanent; he characterized his situation as a "failed back syndrome." That phrase, Weintraub explained, covers "the 10 percent of the operative cases called surgery failed back syndrome where people operate for the best of intentions, but people don't get better, and in fact, get worse"; Weintraub would not recommend a second back operation for Peebles because "he's just going to become more of a failed back syndrome."*fn20

Resisting the plaintiff's present motion, defendant relies upon Weintraub's testimony that any pain Peebles might suffer in the future would be "due to complications arising from a surgery that may not have been medically necessary or an expected result of plaintiff's pre-existing degenerative back condition, which included an extra vertebrae in plaintiff's lower back." Brief at 5. Thus the medical case for Circuit City was that whatever pain Peebles had felt in the past or might feel in the future was not causally connected to the November 1998 accident. But the jury plainly rejected that theory, since it found Peebles entitled to damages for past pain and suffering caused by the injury inflicted by the accident. Had the jury accepted Weintraub's opinion that the causes of Peebles' pain were entirely unrelated to the accident, it would not have awarded Peebles any damages against Circuit City for pain and suffering, past or future. Given the jury's other findings, and having weighed the pertinent evidence myself, I conclude without difficulty that the jury's failure to award damages for future pain and suffering, in a case where the medical expert witnesses for both parties agreed that Peebles' disabling condition was permanent, was egregious, against the [ Page 24]

weight of the evidence, and constituted a grave miscarriage of justice. There must therefore be a new trial on damages.*fn21

Plaintiff asserts an additional ground for a new trial on damages. During the defense case Circuit City called a private investigator, Kenneth Cummings, who surveilled Peebles and shot some video film of him moving about the neighborhood. During cross-examination of Cummings by plaintiff's counsel, the following exchanges occurred:

Q. Well, sir, you told us that one of your jobs is to investigate insurance fraud, correct?
A. Yes.

Q. Did you ever report to Cloverleaf Transportation that there was a fraud going on with Mr. Peebles in this matter?
A. Never.

Q. Did you also tell us that one of the things you also do is to check out medical mills? That's the word you used, correct?
A. Yes.

Q. And you described them as doctors and facilities who do unneeded tests and unneeded operations, even to the point where they may give a neck brace that wasn't required?
A. Yes.

Q. Did you ever find out whether he was going to any medical mill for treatment?
A. Well, in the course of the investigation I think that Dr. Shields is considered a medical mill. I mean, it's class action suit against him.
Q. So you even investigated Dr. Shields?

A. No.

Q. You just knew this off the top of your head?

A. No, I have a curiosity, and I just looked, and I didn't take it any further than looking, and I saw in the Southern District he has about twenty suits, and he's called a medical mill by the owners of the company.
Q. A medical mill. That was just curiosity to investigate Dr. Shields? [ Page 25]
A. I'm a curious guy.*fn22

This sneak attack upon plaintiff's medical expert was gratuitous and completely unfair. If anything in Cummings's insinuations against Shields formed a proper basis for challenging the doctor's trial testimony (a doubtful proposition at best), the proper time and manner to introduce the subject was when Circuit City's counsel (assuming he knew of the fruits of Cummings's curiosity) cross-examined Shields. That would have given plaintiff's counsel an opportunity to object to the line of inquiry and, to the extent the objection failed, seek to rehabilitate Shields on redirect examination. But when Cummings testified on the defense case, Shields was long gone, and those prophylactic remedies, rooted in fairness, were no longer available to plaintiff.

Plaintiff's counsel moved for a mistrial. I denied the motion and instead gave the jury a limiting instruction, which left plaintiff dissatisfied. Courts of appeal frequently reassure trial judges that they can count on jurors to hear, comprehend and obey limiting or corrective instructions, but plaintiff's discontent is understandable, although his contention on the present motion that Cummings' attack on Shields led to the jury's denial of future damages is not subject to proof one way or the other. If the record made it clear that counsel for Circuit City had coached Cummings in advance to throw this sucker punch, I would take a very serious view of the matter; but that cannot be said, the testimony emerged on cross-examination, not direct, and I am content to give counsel the benefit of the doubt.

In the view I take of the evidence, as Rule 59(a) allows me to do, I would grant Peebles a new trial on damages even if the Cummings contretemps had not occurred. But the manifest unfairness [ Page 26]

and possibly prejudicial effect of Cummings' attack on Shields reinforces the need to give plaintiff that relief.


For the foregoing reasons, the Court denies plaintiff's motion for a new trial on liability issues and grants a new trial on damages.

Two questions remain with respect to the structuring of the new trial on damages. Those questions have not been briefed by counsel, and so I will express my present inclinations with respect to them, rather than make rulings at this time.

Plaintiff's submissions seem to envision a new trial on future damages only, leaving intact the first jury's awards of $150,000 for past lost earnings and $100,000 for past pain and suffering. My present view is that the second jury should not be provoked or inhibited by those amounts; particularly in the area of pain and suffering, past, present and future run seamlessly together. It seems to me preferable to have the second jury decide all damages questions de novo.*fn23

Second, I would propose to instruct the new jury only that the issue of liability had been decided in plaintiff's favor, without telling that jury of the first jury's 60/40 allocation of fault, a distraction that should play no part in a trial dealing exclusively with the amount of damages. Counsel and the Court will apply those percentages to any amounts that the second jury awards.

Counsel are directed to submit letter briefs addressing these two questions on or before [ Page 27]

September 12, 2003. The new trial, which should not take more than a week, will take place in October or November, 2003, on a date to be specified in a subsequent order.

The foregoing is SO ORDERED.

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