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PEEBLES v. CIRCUIT CITY STORES

August 18, 2003

JAMES PEEBLES PLAINTIFF, AGAINST CIRCUIT CITY STORES, INC. DEFENDANT


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

MEMORANDUM OPINION AND ORDER

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.

I. BACKGROUND

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.

II. DISCUSSION

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 ...


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