CSX Transportation, Inc. v. Joel Don Miller

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REL:03/19/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010 1071507 CSX T r a n s p o r t a t i o n , Inc. v. J o e l Don Appeal BOLIN, from M o b i l e C i r c u i t (CV-03-405) Court Justice. CSX T r a n s p o r t a t i o n , entered Miller I n c . ("CSX"), a p p e a l s from a judgment o n a j u r y v e r d i c t a w a r d i n g J o e l Don M i l l e r $450,000. We affirm. damages o f 1071507 Facts Miller was employed M a r c h 1967 u n t i l CSX, Miller brakeman, divided with CSX March 2003. rode freight and a into and P r o c e d u r a l flagman. and i t s p r e d e c e s s o r s During trains From until and p r i m a r i l y rode he r e t i r e d Miller as career 1967 u n t i l rode the Montgomery-to-Mobile r o u t e . Pensacola h i s 36-year working Miller's two p h a s e s . History a from career with conductor, with CSX a c a n be 1988 he p r i m a r i l y I n 1 9 8 8 , he r e l o c a t e d t o the Pensacola-to-Mobile route i n 2003. rode the l e a d locomotive e n g i n e when w o r k i n g as a b r a k e m a n a n d t h e r e a r c a b o o s e when w o r k i n g a s a c o n d u c t o r a n d flagman. Miller testified exposed to traumatic jolting, typical freight-train regarding worked his experiencing locomotives. precipitating time M i l l e r trip with neck. pain i n a l l three p o s i t i o n s he was forces, including vibration, on a d a i l y b a s i s w h i l e Miller the that until However, and s t i f f n e s s The he was e m p l o y e d w i t h CSX. was d e s c r i b e d CSX pain 2001 in began e x p e r i e n c i n g as with 2001, result 2 no complaints Miller from began riding a g r a d u a l l y over time. the neck pain The "rough." i n h i s neck while d i d not event but occurred j e r k i n g , and he was 58 on single At the years 1071507 old and had been a heavy smoker testified that end r u n when of a initially H o w e v e r , he s t a t e d once he was Miller constant and began Miller how him to Miller subside at the complete a rested. on h i s n e x t r u n the traumatic the neck and on t h e eventually pain forces became arm. Although personal-injury CSX report, s t a t e d t h a t he d i d n o t do s o b e c a u s e he d i d n o t r e a l i z e h i s neck Miller sought initially seen by he c o n t i n u e d being further several t o work treated conservative for the who symptoms ordered treatment. full-time [ h e ] was treatment his physicians failed to testified any work pain. He treatment was f o r the neck riding trains." alleviate was diagnostic missing conservative still and Miller without conservatively that "while was. conservative stated ineffective injury treatment t e s t s and p r e s c r i b e d while would r e t u r n r a d i a t i n g down h i s r i g h t serious that to that would life. o f f the locomotive the pain exposed stated required the neck pain got that again train. policy he a l l of h i s adult When t h e Miller's neck s y m p t o m s he was r e f e r r e d t o D r . B r u c e R a y m o n , a n e u r o s u r g e o n . Miller complaining was first of neck seen pain by D r . Raymon radiating 3 into on June his right 10, 2002, arm and 1071507 numbness i n his fingers. revealed multilevel degenerative through 6th c e r v i c a l had moderate D r . Raymon an M R I , disk disease between t h e 3d Miller symptoms. space at those w h i c h he d e t e r m i n e d was c o n s i s t e n t w i t h disk levels, Miller's Dr. narrowing Raymon of the disk diagnosed Miller with r a d i c u l o p a t h y , w h i c h he e x p l a i n e d was a n e r v e - r o o t with r a d i a t i n g pain On J u l y into 24, 2002, an decompress the nerve at t h e C4-5 a n d C 5 - 6 l e v e l s . spurring i n Miller's and Miller September not was that surgery. return full and fuse t o work. duties with surgery i n order the c e r v i c a l D r . Raymon n o t e d cervical next seen At that vertebrae vertebrae that t h e bone was s o s e v e r e t h a t t h e i n order by Dr. to fixate Raymon time M i l l e r numbness o r t i n g l i n g Miller Miller compression the plates i n the fusion. 9, 2 0 0 2 . experiencing stated root h a d t o be r e c o n t o u r e d screws used cervical extremity. D r . Raymon p e r f o r m e d to vertebrae which The MRI i n d i c a t e d t h a t vertebrae. to severe ordered had had an requested D r . Raymon CSX was p a i n - f r e e i n h i s arm. "excellent" that D r . Raymon released without Miller restrictions. 4 f o r follow-up on a n d was D r . Raymon response to the release him t o to return to h i s 1071507 Miller symptoms returned t o w o r k , a n d he a g a i n i n h i s neck once he c o n d i t i o n s aboard the t r a i n . October 7, complained 2002. prescribed Miller i f the pain pain-management restricted at that specialist. work duty Miller He at that with changed and, i f n o t , whether conditions pain whether that However, he c o u l d and place informed consult Miller tolerate a on D r . Raymon d i d conditions continue Miller D r . Raymon he s h o u l d d i d not h i s working o f h i s j o b and time medication time. traumatic t o D r . Raymon on and headaches. d i d not improve discuss the noted neck pain experiencing to the returned anti-inflammatory that exposed Miller D r . Raymon of increased was began could t o work the pain. be under Miller s t a t e d t h a t a t t h e t i m e he c h o s e t o " k e e p w o r k i n g a n d t o l e r a t e the pain." Miller returned his job until his neck could and decided March t o work and p e r f o r m e d 2003. no l o n g e r to retire Miller "stand f r o m CSX. eventually doing duties of concluded g e t t i n g up on a n o t h e r Miller was e l i g i b l e r e t i r e m e n t " b a s e d on h i s a g e a n d h i s y e a r s took the " f u l l the f u l l that train" for "full of s e r v i c e . Miller r e t i r e m e n t " on M a r c h 2 5 , 2 0 0 3 , a t a g e 60 a n d i n so " v o l u n t a r i l y r e l i n q u i s h e d " any r i g h t 5 to return to 1071507 employment with already eligible he not CSX. did to Miller retire "bother" retired based stated that had until the pain he age in his of on his but age disability intended 65 on continued was to following age and his retirement management injections, and Lortab and that there given 2006, provided the took nothing do in narcotic In that of was service Although service, continue so he he working because of the a greater relief at t r i a l t h a t he 2003. He received pain medications, 2004, c o u l d be pain- Miller surgically "somewhat [disk] disease." from h i s neck i n h i s neck w i t h e x e r t i o n d u r i n g activities near what Miller experiencing." controls his pain with over-the-counter He to moderate but stated medication In which symptoms. to have l i g h t pain 6 was done continues was neck fluoroscopic injection, with [he] his March May multi-level received for a t t h a t t i m e was His prognosis advanced Miller him testified to tests, methadone. was to r e l i e v e h i s p a i n . March of treatment diagnostic guarded years years to receive additional informed and needed unable because retirement. and underwent including that neck. Miller condition based with Miller stated and "nothing that that he he 1071507 had not received management, any medical f o r h i s neck since On c r o s s - e x a m i n a t i o n , him that that he made t h e d e c i s i o n his neck since retiring employment. Pensacola returned not do retired Miller riding have neck testified to retire has freight traumatic i n CSX's forces f o r other employment that of seeking other he c o u l d i f he h a d w a n t e d , "what man i n made the effect [ o f ] Larry served him a have b u t he d i d Allerellie, as s y s t e m safety a general mechanical department, condition trains because of on [ h i s ] n e c k . " identified h e was that and t h a t d i d n o t know f o r the position physician he was t h e m o s t s e n i o r as a s w i t c h m a n he no on t h e p a i n h e h a s no i n t e n t i o n that pain o f h i s c o n d i t i o n and based has n o t looked stated inspector Miller's unsuitable CSX. would because Miller than 2003. to retire he d e c i d e d because other t e s t i f i e d that C S X o f f i c i a l who h a d f o r m e r l y mechanical that Miller t o work switching he and t h a t when so n o t work i n h i s neck. condition March Miller told experiencing he c o u l d treatment, stated hazard and of switchman. four he conditions contends associated contributed t o w h i c h h e was e x p o s e d d u r i n g F i r s t , he p r e s e n t e d e v i d e n c e i n d i c a t i n g 7 to the h i s career that with at a number o f 1071507 areas along the t h e CSX r o u t e s track conditions. as " c o n t i n u o u s l y good jerk." locomotive CSX were p a r t i c u l a r l y These a r e a s were d e s c r i b e d rough," " f a i r l y t o shake from side "thrown out" of t h e i r stated train that down he of track to side had t o " h o l d seat. requested would cause the so v i o l e n t l y that the o n " t o keep On c r o s s - e x a m i n a t i o n that the engineer i n a n t i c i p a t i o n of the "rough never reported King, never i n testimony rough r i d i n g , " and a " p r e t t y One p a r t i c u l a r s e c t i o n e m p l o y e e s on b o a r d t h e t r a i n being rough because of spots" a n y o f t h e " r o u g h s p o t s " t o CSX. Miller slow that However, track. t h e t r a i n s were r o u t i n e l y i s s u e d " s l o w "constant" after King also problems being stated that reported Second, Miller that were n e v e r claims that e m p l o y e d b y CSX. motion generated section of the t r a i n another section O.D. orders" areas of track satisfactorily were corrected t o CSX. a c t i o n " while force c e r t a i n areas he Miller, t o r e d u c e t h e t r a i n ' s s p e e d when t r a v e l i n g t h r o u g h r o u g h of the and t h a t a n e n g i n e e r e m p l o y e d b y C S X who h a d w o r k e d w i t h testified from by he was "Slack a moving 8 The to "slack a c t i o n " i s the loose- freight i s traveling at a of the t r a i n . exposed train greater "slack" when speed i s said one than t o be 1071507 " g o i n g o u t " when t h e l o c o m o t i v e s a r e t r a v e l i n g f a s t e r t h a n t h e rest is o f t h e t r a i n and "coming traveling riding in backward forces by faster the than i n " when t h e r e s t the locomotive. locomotive would be the "whipping" action moving in or out. l o c o m o t i v e h a r d and w i l l The action" varies depending on M i l l e r was e x p o s e d t o " s l a c k the freight M i l l e r rode "thrown" created "slack employees forward by the action" "slack" hits The i n t e n s i t y o f t h e " s l a c k the weight and type of train. a c t i o n " r e g u l a r l y w h i l e r i d i n g on cabooses when w o r k i n g a s a c o n d u c t o r t h e m i d 1 9 8 0 s when CSX p h a s e d out. associated A common condition known a s " d e a d " d r a w - h e a d . located on t h e f r o n t to railroad the referred "give ran the i n the locomotive a n d f l a g m a n f r o m 1967 u n t i l felt and trains. Third, Those cause t h e employees t o be " k n o c k e d " f r o m t h e i r s e a t s . of the t r a i n A draw-head of the caboose car i n front t o as b e i n g "dead" t o i t a t a l l " so t h a t like you ran i n t o out " i t f e l t like with a solid of when i s the welded that i t . because the cabooses The 9 coupling draw-head solid, action" with was no ran i n " i t w a l l , " a n d when " s l a c k you were was connects the caboose i t was "slack them action" r e a r - e n d e d i n an a u t o m o b i l e 1071507 accident." the The employees traumatic regular basis impacts and riding i n the produced felt "beat by up" install a cushioned draw-head the caboose i n the 1980s, traumatic impacts Finally, contributed his caused by Miller to the employment seats mid during with Miller's the f o r c e s he used career: was wall of be a the low-back locomotive adjusted forward pedestal height support seat mounted on that the floor of (1) out alleviate the exposed types the to during locomotive "toadstool" seat. be of seats e m p l o y e e ' s h e a d and or The " t o a d s t o o l " side-mounted the to the seat to locomotive. Due neck area. were to of i t s seat back, the " t o a d s t o o l " seat p r o v i d e d f o r the CSX Some " t o a d s t o o l " s e a t s the a phasing a track that permitted and b a c k w a r d . to a trip. locomotive was two could to on action." " r o u n d b o t t o m " s e a t and ( 2 ) t h e " J a g g e r " seat action" of helped that CSX end experienced shortly before "slack contends CSX. "slack the which the traumatic the at did cabooses the little Additionally, t h e s i d e - m o u n t e d " t o a d s t o o l " s e a t s were o f t e n u n s t a b l e and not secure the because of wear on the by rust locomotive wall caused "wollered out," which mounting-track caused and these 10 the system track seats to and system's "wobble" being and 1071507 "shake." result The s i d e - m o u n t e d of wear of the " t o a d s t o o l " seats track system adjustment p i n s , which also c o n t r i b u t e d the seats. These seats wood, b r i c k s , Miller or testified point that four times s a g as a missing and would height- to the i n s t a b i l i t y of r e g u l a r l y h a d t o b e " p r o p p e d " up u s i n g flagsticks i n order to correct t h a t he e n c o u n t e r e d a s e a t the s a g . t h a t sagged t o t h e i t h a d t o b e " p r o p p e d " up a p p r o x i m a t e l y per year. H o w e v e r , he seats that vibrated with "very stated that three the or "loose" common." In t h e movements o f t h e l o c o m o t i v e 1972, t h e F e d e r a l studied the effect employees seats. and Railroad Administration ("FRA") v i b r a t i o n s on railroad of locomotive-cab recommended the phasing out of "toadstool" I n J a n u a r y 1980, t h e A s s o c i a t i o n o f A m e r i c a n ("AAR"), a trade organization, were completed a study Railroads entitled "Locomotive Cab Seat E v a l u a t i o n , " which i n d i c a t e d t h a t 2 2 % o f r a i l r o a d employees complained of neck p a i n train run. improved T h e AAR recommended maintenance recommendations of the a new s e a t until on a better the existing following a typical designed seats. seat Despite and the FRA a n d t h e AAR, CSX d i d n o t i n t r o d u c e the early 1990s. 11 1071507 Terry Wells, he a that served was as an Engineers created with CSX's manager o f l a b o r r e l a t i o n s , former official ("BLE"). as p a r t CSX. locomotive In seats. 1986, locomotive seats considered design was a member labor agreement was to cabs, o f CSX's first cab procuring sought an to upgrade the ergonomically designed maximum c o m f o r t a n d s a f e t y f o r evaluated Specifically, several types the s e a t ; safe motion, of t h e cab committee t h e f o l l o w i n g s p e c i f i c a t i o n s t o be e s s e n t i a l t o t h e of the seat: resistance. give including a contoured seat bottom and b a c k ; l u m b a r s u p p o r t ; an a r m r e s t ; h e a v y d u t y v e n t i l a t e d v i n y l for was o f t h e BLE. committee vendors. Locomotive a "cab committee" locomotive The c a b c o m m i t t e e from v a r i o u s he h a d input r e l a t i n g to the design, the chair that provided employee. seats of cab by that of o f t h e "cab committee" Wells the and t h a t 1986 n a t i o n a l as a r e p r e s e n t a t i v e locomotive the stated to provide comfort engineer the Brotherhood o f t h e BLE's The p u r p o s e and committee with Wells labor the opportunity safety, locomotive testified and simple fabric a d j u s t m e n t ; and o i l and mildew The c a b c o m m i t t e e vibration, good d i d not s p e c i f i c a l l y and p r o t e c t i n g t h e employee's 12 consider neck region 1071507 a s i s s u e s when c o n s i d e r i n g t h e s p e c i f i c a t i o n s f o r t h e new design. The c a b c o m m i t t e e field t e s t i n g : the Jagger seats were then The placed Jagger engineers he was design A how crews, and in o f any survey seat o f the t r a i n performed. the Jagger seat seat Jagger train and crews. was Following explained testified made regarding that the back. conducted the survey to determine of the train s e l e c t e d by a m a j o r i t y that effort the selection between o f the the r a i l r o a d the s a f e t y of the employee i t s locomotives with the Jagger 1990s. s e a t s w e r e s i d e - m o u n t e d on t h e w a l l o f similar employees encountered mounted crews CSX began o u t f i t t i n g locomotive by Wells a short a n d was d o n e w i t h Many o f t h e J a g g e r the with was a " c o l l a b o r a t i v e i n the early specifications being was u l t i m a t e l y Wells Prototype with a short back to provide the complaints seat seat. f o r testing with greater rear v i s i b i l i t y . the unions" seat locomotives o f the Jagger mind. s e a t and t h e N e l s o n s e a t was d e s i g n e d o f t h e BLE. Jagger e v e n t u a l l y s e l e c t e d two s e a t s f o r t o t h e cab committee's on C S X unaware each vote built seat seats to the "toadstool" seats. The t h e same s t a b i l i t y i s s u e s w i t h t h e s i d e as they 13 had with the side-mounted 1071507 "toadstool" seats locomotive mounted wall Jagger examination, inspected or began as Miller he was the mounting-track t o wear. seats h i s seat unsafe when Miller "unstable" testified were before i f he f e l t t h e s e a t required to report and the On was the side- crossrun he defective Although Miller c o m p l a i n e d t o CSX management of the seats, made i t . or each and t h a t the condition complaints described and "shaky." that s t a t e d t h a t he n e v e r s p e c i f i c a l l y regarding system that he s t a t e d sometimes that the numerous seats were replaced. Allerellie locomotive testified cab seats stated that unsafe equipment that t o be the t r a i n federal securely crews have or conditions. complained of defective that an e n g i n e e r Allerellie's repair line department or replace replaced i t . immediately, and sent reported would an seats report testified seat the seat could that a member and Allerellie of either n o t be r e p a i r e d w o u l d be p u l l e d for repair. 14 to He from time t o time and inspect the locomotive required and b r a c e d . obligation a defective I f the seat to the garage mounted Allerellie engineers when regulations or o f fthe stated 1071507 that a locomotive with a defective seat would n o t be allowed to r u n . Dr. Raymon degenerative testified disk disease smoking, genetics, testified that M i l l e r ' s degenerative Miller's that and disk working several such factors as M i l l e r ' s , repetitive and conditions by C S X , D r . Raymon aboard history contributed to H o w e v e r , D r . Raymon a l s o Miller's find a cervical his toh i s stated freight that trains and " c o n t r i b u t e d t o On cross-examination Miller's age and disk degenerative smoking disease. f u r t h e r s t a t e d t h a t even considering a witness with the degree of degenerative R a l p h K e l l e y , an o c c u p a t i o n a l - m e d i c i n e f o rM i l l e r , t e s t i f i e d forces Kelley movement spine disk M i l l e r had. Dr. Dr. that Raymon contributed the age, a g e a n d h i s h i s t o r y o f s m o k i n g , i t i s " n o t common" t o disease shock and symptoms." testified Dr. specifically " a g g r a v a t e d o r p r e c i p i t a t e d h i s symptoms" his c l i n i c a l presentation including trauma. working conditions disease contribute to and c e r v i c a l opined than that securely that the r e l a t i o n s h i p between degeneration loose mounted 15 s p e c i a l i s t and i s widely locomotive s e a t s , which seats tends recognized. cause to more amplify 1071507 the shock f o r c e s railroad to aboard a locomotive. p e r s o n n e l who w o r k a b o a r d t r a i n s a n d who vibrating forces and to require forces work history were likely surgery than Dr. of smoking Dr. K e l l e y concluded that M i l l e r ' s long and h i s w o r k i n g factors in testified were less to h i s degenerative his aboard degenerative that M i l l e r ' s significant f o r CSX, t e s t i f i e d o f h i s age more." Dr. and Dawkins the onset of Miller's had M i l l e r ' s disk age and h i s factors S t e p h e n D a w k i n s , an o c c u p a t i o n a l - m e d i c i n e the r e s u l t the that condition. that Miller's his history stated that symptoms working were age and t h a t his s y m p t o m s , he w o u l d h a v e e x p e r i e n c e d than not exposed conditions c o n d i t i o n s d i d not c o n t r i b u t e to M i l l e r ' s that disorders such significant a witness "nothing CSX are exposed t o s u f f e r neck people that to Dr. K e l l e y a l s o contributed were neck history with disease. and a r e more aboard t r a i n s . trains Dr. K e l l e y s t a t e d specialist neck symptoms o f smoking Miller's and working symptoms, e x p l a i n i n g consistent conditions with h i s contributed h i s symptoms to earlier he d i d . CSX p r e s e n t e d e n g i n e e r , who testimony from Robert L a r s o n , a mechanical conducted v i b r a t i o n t e s t i n g on 16 the locomotive 1071507 runs from Montgomery t o M o b i l e and from Pensacola to Mobile. Larson measured the v i b r a t i o n l e v e l s o f the side-mounted to determine person" sitting vibration levels much on levels vibrating the seats. "coming i s standing. vibration energy testing was Larson o f the locomotive of v i b r a t i o n the person his how Larson fell the measured the to determine the a person's testified feet when that the results of " f a r below z o n e , " m e a n i n g t h e r e was l i t t l e into also walls i n " through "going seats the health r i s k of injury caution as a r e s u l t o f w h o l e - b o d y v i b r a t i o n on e i t h e r t h e M o n t g o m e r y - t o - M o b i l e o r t h e Pensacola-to-Mobile transient at "shocks a level route. Larson that would work reasonably CSX cause injury. environment of that the Larson concluded that, to the relevant standards, aboard the locomotives was safe. also presented biomechanical-engineering types testified and s p i k e s " o f t h e v i b r a t i n g f o r c e s were n o t b a s e d on h i s t e s t i n g a n d c o m p a r i s o n Miller's further seats used by testimony expert, CSX were from D r . John who testified reasonably Trimble, a that safe both from a biomechanical s t a n d p o i n t . M i l l e r p r e s e n t e d t e s t i m o n y from D r . Tyler also Kress, a biomechanical-engineering 17 expert, who 1071507 testified the that the seats shock-filled further stated exasperated u s e d by CSX were n o t a p p r o p r i a t e f o r conditions that aboard the s h o c k - f i l l e d when cab seats sued CSX on the locomotives. conditions are not were securely He further mounted and braced. Miller negligence claim under February the Federal 45 U.S.C. § 51 e t s e q . ( " F E L A " ) , 10, 2003, asserting a Employer's L i a b i l i t y A c t , and a l l e g i n g t h a t during the c o u r s e o f h i s e m p l o y m e n t w i t h CSX he was e x p o s e d t o "excessive vibration track loose, and strain defective as to h i s neck injuries were safety caused practices, alleged seats" spine. b y CSX's that Inspection the CSX was strictly negligence a locomotive U.S.C. with § parts 18 permanent alleged that h i s o r by r e a s o n roadbeds, b y CSX. liable 20701 and in practices, Locomotive Inspection A c t ) , 49 rough resulting i n CSX's t r a c k , maintenance of Miller as a r e s u l t o f n e g l i g e n c e violating provide and or i n s u f f i c i e n c y practices consequence locomotive injuries defect a under and of a equipment, inspection Miller further t h e FELA f o r Act (formerly the B o i l e r ("LIA"), by failing to and a p p u r t e n a n c e s i n good and 1071507 safe working C.F.R. provide § 213.101 adequate CSX the order. 1 et seq., track answered the complaint Miller and also alleged asserting that complaint asserting by denying certain amended h i s c o m p l a i n t on asserting allege an of 49 failed to CSX had the allegations in affirmative t o m i t i g a t e damages. to violation support. i n c l u d i n g the f a i l u r e facts; a three occasions additional that his injuries 49 C.F.R. § 2 2 9 . 1 1 9 f o r f a i l i n g Thereafter, to a s s e r t violation were c a u s e d by to provide defenses, of Miller additional the LIA CSX's v i o l a t i o n cab by of s e a t s t h a t were T h e F E L A a f f o r d s e m p l o y e e s o f common c a r r i e r s a c a u s e o f action for injuries s u s t a i n e d d u r i n g the course of their employment t h a t r e s u l t from t h e i r employer's n e g l i g e n c e . 45 U.S.C. § 5 1 . The L I A d o e s n o t c o n f e r a c a u s e o f a c t i o n u p o n i n j u r e d employees. Rather, " [ i ] t m e r e l y makes v i o l a t i o n o f i t s p r o h i b i t i o n s ' u n l a w f u l . ' Y e t i t has been h e l d c o n s i s t e n t l y that the [LIA] supplements the [ F E L A ] by imposing on interstate railroads 'an a b s o l u t e a n d c o n t i n u i n g duty' to provide safe equipment." U r i e v . T h o m p s o n , 337 U.S. 163, 188 (1949) ( f o o t n o t e o m i t t e d ) . The L I A i s " s u b s t a n t i v e l y i f n o t i n form [ a n ] amendment[] to the [ F E L A ] . [ I t ] d i s p e n s e [ s ] ... w i t h the n e c e s s i t y of p r o v i n g ... negligence" in certain c l a s s e s of FELA s u i t s . U r i e , 337 U.S. at 189-90. Thus, employers are s t r i c t l y l i a b l e f o r i n j u r i e s r e s u l t i n g from v i o l a t i o n s of the LIA. L i l l y v . G r a n d T r u n k W e s t e r n R.R., 317 U.S. 4 8 1 , 485 (1943). 1 19 1071507 securely were CSX mounted and b r a c e d ; c a u s e d by CSX's allowed motion. the CSX allegations The locomotives proceeded of law trial court claims alleging C.F.R. § case, run with amended on M a r c h trial a violation of denied u n d e r t h e FELA court denied defenses. 2008. At the a s s e r t e d by the p r e v e r d i c t 49 i t as and CSX's JML as Miller. to Miller's C.F.R. § 213.101 to claims the a violation renewed a t the c l o s e of a l l the evidence the the CSX m o v e d f o r a p r e v e r d i c t j u d g m e n t a s granted and 17, lateral denying and a s s e r t i n g c e r t a i n to t r i a l i n that excessive complaint ("JML") a s t o t h e c l a i m s 229.63 negligence each o f 49 C.F.R. § 2 2 9 . 6 3 to of the complaint close of M i l l e r ' s The violation answered case a matter and t o a l l e g e t h a t h i s i n j u r i e s and 49 asserting of the LIA. CSX i t s motion f o r a JML; renewed motion for a preverdict JML. The claims case was alleging submitted negligence of the LIA f o r f a i l i n g appurtenances the the jury to provide and b r a c e d cab of on Miller's and h i s c l a i m a l l e g i n g a locomotive i n good and s a f e w o r k i n g alleged violation mounted to violation with parts and which included regulation requiring the securely seats. 20 The order, a FELA jury returned a general 1071507 verdict in Miller's damages a t $ 4 5 0 , 0 0 0 . 2008, favor entered jury's Miller against CSX and The trial court, on in favor of CSX moved the judgment and Miller assessed March based 27, on the verdict. On April postverdict alter, a of 24, JML 2008, or, i n the amend, o r v a c a t e J u n e 20, 2008, the postjudgment trial alternative, court f o r a new for t r i a l ; the j u d g m e n t ; or f o r a r e m i t t i t u r . trial court entered an order denying a to On CSX's motions. Discussion I. CSX contends apportion own that defendant escape a plaintiff (3) between FELA liability (2) because R.R., contributory negligence. Although U.S.C §§ 1490, and 51 & 5 3 . (1) to the contributory FELA defendant c o n d i t i o n made injury, 1495 an Sauer (10th C i r . apportionment of negligence 21 a a work-related F.3d entitled sources: plaintiff's f o r the 45 is a preexisting 106 FELA does p r o v i d e employer's the causes. more s u s c e p t i b l e t o an Damages d a m a g e s among t h r e e other Burlington Northern 1997), the a negligence; n e g l i g e n c e ; and v. of a plaintiff's defendant's cannot Apportionment damages employee's The FELA does 1071507 not allow Norfolk apportionment & Western Ry. among v. jointly Ayers, liable 538 U.S. (2003)(noting that i f a third-party tortfeasor c o n t r i b u t i n g t o an e m p l o y e e ' s to a full seek contrast, from i t appears apportionment 773 F . 2 d 807 well among work-related causes. the an 2 135, 159-66 i s at f a u l t f o r damage, t h e e m p l o y e e i s e n t i t l e d r e c o v e r y from the employer contribution tortfeasors. and t h e e m p l o y e r third-party settled employer's that may then tortfeasor). By t h e FELA n e g l i g e n c e and contemplates other non- See L a n c a s t e r v . N o r f o l k & W e s t e r n Ry., ( 7 t h C i r . 1 9 8 5 ) ( r e c o g n i z i n g t h a t an apportionment B a s e d on c e r t a i n l a n g u a g e i n t h e U n i t e d S t a t e s S u p r e m e C o u r t ' s 2 0 0 3 d e c i s i o n i n A y e r s , some q u e s t i o n h a s a r i s e n a s t o w h e t h e r a p p o r t i o n m e n t b e t w e e n t h e e m p l o y e r ' s n e g l i g e n c e and other n o n - w o r k - r e l a t e d causes i s s t i l l p e r m i s s i b l e under the FELA. In A y e r s , the employee sued N o r f o l k & Western R a i l w a y s e e k i n g t o r e c o v e r d a m a g e s b a s e d on h i s a l l e g e d e x p o s u r e t o asbestos. N o r f o l k & W e s t e r n R a i l w a y s o u g h t an instruction s e e k i n g t o a p p o r t i o n d a m a g e s b a s e d on t h e e m p l o y e e ' s exposure to a s b e s t o s from o t h e r s o u r c e s . The t r i a l c o u r t r e f u s e d t o g i v e t h e i n s t r u c t i o n , and t h e Supreme C o u r t a f f i r m e d . First, c e r t a i n statements i n the d e c i s i o n appear to extend beyond damages c a u s e d by t h i r d - p a r t y t o r t f e a s o r s and t o p r o h i b i t a p p o r t i o n m e n t as t o o t h e r n o n - w o r k - r e l a t e d c a u s e s . However, we do n o t r e a d A y e r s a s p r o h i b i t i n g a p p o r t i o n m e n t as t o o t h e r non-work-related causes. The i s s u e p r e s e n t e d i n A y e r s was whether apportionment was permissible among third-party tortfeasors. The S u p r e m e C o u r t d i d n o t a d d r e s s o t h e r n o n w o r k - r e l a t e d c a u s e s a n d t h e o p i n i o n m u s t be r e a d i n t h a t context. Second, the Supreme C o u r t d i d not explicitly o v e r r u l e o r r e j e c t t h o s e c a s e s a l l o w i n g a p p o r t i o n m e n t among other non-work-related causes. 2 22 1071507 i n s t r u c t i o n was a p p r o p r i a t e where the p r o b a b i l i t y e x i s t e d t h a t plaintiff have been which would the employee negligence); (1st Cir. had instruction the that due to Corp., 909 Shipping where not an condition F. the a t t r i b u t a b l e to not f o r the f o r the s u f f e r e d even pain i f the (affirming jury reduce damages by the eventually have suffered condition even had Varhol National Supp. v. 516 negligence (D.N.J. R.R. preexisting other The causes 23 a employee condition extent need only and be Arab that preexisting f o r the not to which the not the Passenger 19 9 2 ) ( h o l d i n g aggravated must c o m p e n s a t e preexisting condition itself). is a plaintiff's ( 7 t h C i r . 1 9 9 0 ) ; and Evans v. U n i t e d the employer of would when liable supra 594 preexisting a employer's aggravation have to a i s only Sauer, jury employee 1557 790 would 97 F . 3 d that aggravates i t s negligence, the occurred); F.2d Co., by occurred); the principle defendant the p l a i n t i f f directing injury accident caused never the from defendant's & A r o o s t o o k R.R., merely c o n d i t i o n , the injury likelihood the negligence impairment accident suffered, notwithstanding 1996)(reinforcing preexisting and a latent condition S t e v e n s v. Bangor defendant's increased i n j u r e d by proven the injury to a 1071507 mathematical certainty; to rough permit a "Apportionment the finder of Sauer, is exacerbated apportionment. Sauer, only be sufficient 106 F.3d at c a n be p r o v e d w i t h o u t e x p e r t t e s t i m o n y percentage causes." t h e e v i d e n c e need attributable 106 F. 3 d a t 1 4 9 4 . unable by injury to separate the workplace to the 14 94. stating different However, where t h e those accident injuries from fact- caused those or injuries r e s u l t i n g from p r e e x i s t i n g c o n d i t i o n s , the defendant i s l i a b l e for a l linjuries. Stevens, CSX s u b m i t t e d p r o p o s e d that 97 F . 3 d a t 6 0 3 . jury i t must n o t a w a r d damages sustained as t h e r e s u l t charges to M i l l e r instructing the jury for injuries that of other causes, s p e c i f i c a l l y he h i s age and h i s h i s t o r y o f s m o k i n g , and t h a t i t must a w a r d h i m damages only for injuries negligence. CSX that also o c c u r r e d as a d i r e c t submitted special would have a l l o w e d the j u r y of fault based on CSX's result CSX's interrogatories to assign appropriate violation of of the that percentages LIA; CSX's n e g l i g e n c e ; M i l l e r ' s own c o n t r i b u t o r y n e g l i g e n c e ; a n d M i l l e r ' s age and h i s h i s t o r y court of smoking. erroneously rejected CSX i t sjury contends charges that relating i s s u e o f a p p o r t i o n m e n t and e l e c t e d t o use a b a s i c 24 the trial to the jury-verdict 1071507 form with no contends special that the interrogatories trial court's p r o p o s e d j u r y c h a r g e s and reversible error The new decision trial court. rests Jordan (Ala. 2008). strengthens verdict. for reviewing charge to the grant the sound denial of trial jury i s as rejection this court's CSX of its constitutes trial. Review or to deny a motion discretion of Calloway, 7 So. a of In a d d i t i o n , a of to presumption the a new r e l . J o r d a n v. The 3 Id. whether ex categorical i t to Standards within instructions. special interrogatories entitling A. or for motion correctness C o u r t has refusal give the a a trial 310, new afforded stated to the 3d a for 313 trial a jury standard particular follows: "'"In a j u r y case, a party i s e n t i t l e d to have i t s case t r i e d to a j u r y t h a t i s g i v e n the a p p r o p r i a t e s t a n d a r d by w h i c h t o r e a c h i t s d e c i s i o n , and a w r o n g f u l r e f u s a l of a r e q u e s t e d j u r y charge c o n s t i t u t e s a ground for a new trial. See, C.I.T. F i n a n c i a l S e r v i c e s , I n c . v . B o w l e r , 537 So. 2d 4 (Ala. 1988). An incorrect, misleading, erroneous, or prejudicial c h a r g e may form the b a s i s f o r g r a n t i n g a new t r i a l . S e e , N u n n v . W h i t w o r t h , 545 So. Although federal substantive law g o v e r n s a FELA a c t i o n , g e n e r a l l y a FELA a c t i o n t h a t i s a d j u d i c a t e d i n s t a t e c o u r t i s g o v e r n e d by t h e p r o c e d u r a l r u l e s o f t h e s t a t e c o u r t . G l a s s v. B i r m i n g h a m , 905 So. 2d 789 (Ala. 2004). 3 25 1071507 2 d 766 ( A l a . 1 9 8 9 ) . However, the r e f u s a l of a requested, written instruction, a l t h o u g h a c o r r e c t statement of the law, i s n o t c a u s e f o r r e v e r s a l on a p p e a l i f i t appears that t h e same r u l e of law was s u b s t a n t i a l l y and f a i r l y g i v e n t o t h e j u r y i n the t r i a l court's o r a l charge. See, R u l e 5 1 , A l a . R. C i v . P. When e x a m i n i n g a c h a r g e a s s e r t e d t o be e r r o n e o u s , t h i s C o u r t l o o k s t o t h e e n t i r e t y o f t h e c h a r g e t o see i f there i s reversible error. See, G r a y c o R e s o u r c e s , I n c . v . P o o l e , 500 So. 2 d 1030 (Ala. 1986)."' " C a c k o w s k i v . W a l - M a r t S t o r e s , I n c . , 767 So. 2 d 3 1 9 , 327 ( A l a . 2000) (quoting Shoals Ford, Inc. v. Clardy, 588 So. 2d 879, 883 (Ala. 1991)). A d d i t i o n a l l y , ' [ a ] n y e r r o r or d e f e c t w h i c h does not a f f e c t t h e s u b s t a n t i a l r i g h t s o f t h e p a r t i e s may be disregarded.' B i s h o p v. S t a t e A u t o . Mut. I n s . Co., 600 So. 2 d 2 6 2 , 265 ( A l a . C i v . A p p . 1991) (citing R u l e 6 1 , A l a . R. C i v . P . ) . As a r e s u l t , t h e j u r y instruction must be erroneous as well as prejudicial, and this Court cannot presume prejudice. B r a b n e r v . C a n t o n , 611 So. 2 d 1 0 1 6 , 1018 ( A l a . 1 9 9 2 ) ; P r e f e r r e d R i s k M u t . I n s . Co. v . R y a n , 589 So. 2 d 1 6 5 , 167 ( A l a . 1 9 9 1 ) . The a p p e l l a n t h a s t h e b u r d e n o f d e m o n s t r a t i n g t h a t an e r r o n e o u s j u r y i n s t r u c t i o n was p r e j u d i c i a l . See R y a n , 589 So. 2 d a t 167 ( c i t i n g D i n m a r k v . F a r r i e r , 510 So. 2 d 819 (Ala. 1987))." Southeast E n v t l . 32, 43-44 relating L.L.C. v. R i v e r s , 12 So. 3d ( A l a . 2008). B. CSX Infrastructures, CSX's P r o p o s e d submitted to the issue the of Jury following Charges proposed apportionment: 26 jury charges 1071507 "DEFENDANT'S REQUESTED JURY I N S T R U C T I O N NO. 3 8 . D e f e n d a n t i s e n t i t l e d t o a p p o r t i o n damages b e t w e e n the various causes of a Plaintiff's injury, including pre-existing conditions. B a s e d on t h e e v i d e n c e i n t h i s c a s e , you s h o u l d d e t e r m i n e what percentage of P l a i n t i f f ' s present c o n d i t i o n was c a u s e d by t h e i n j u r i e s s u s t a i n e d as a r e s u l t o f h i s age, smoking, and g e n e t i c s , i f any, what p e r c e n t a g e was c a u s e d b y t h e n e g l i g e n c e o f t h e D e f e n d a n t , i f a n y , a n d w h a t p e r c e n t a g e was c a u s e d b y P l a i n t i f f ' s own n e g l i g e n c e , i f a n y . " "DEFENDANT'S REQUESTED JURY I N S T R U C T I O N NO. 3 9 . You must n o t a w a r d damages t o P l a i n t i f f f o r i n j u r i e s that he s u s t a i n e d a s a r e s u l t of other causes including, but not l i m i t e d to, Plaintiff's age, smoking, genetics, and other non-railroad activities. You must o n l y award t h e amount o f damages that occurred as a direct result of Defendant's negligence. " I f y o u f i n d t h a t P l a i n t i f f ' s i n j u r y was d u e i n p a r t t o h i s age, smoking, g e n e t i c s , or other nonrailroad activities, you should determine the p o r t i o n o r p e r c e n t a g e o f P l a i n t i f f ' s i n j u r y t h a t was so c a u s e d . " "DEFENDANT'S REQUESTED JURY I N S T R U C T I O N NO. 4 0 . If you f i n d that the P l a i n t i f f ' s age, smoking, g e n e t i c s , o r o t h e r n o n - r a i l r o a d a c t i v i t i e s may h a v e c a u s e d h i m harm, you s h o u l d n o t c o n s i d e r any l o s s caused by such age, smoking, g e n e t i c s , o r o t h e r nonrailroad activities nor should you award the Plaintiff a n y damages that were caused by t h e P l a i n t i f f ' s age, smoking, g e n e t i c s and n o n - r a i l r o a d 27 1071507 "DEFENDANT'S REQUESTED JURY I N S T R U C T I O N NO. 4 1 . I f y o u f i n d f o r t h e P l a i n t i f f , y o u may a w a r d h i m monetary compensation only f o r the extent of the i n j u r y caused by t h e Defendant i n t h e course o f t h e Plaintiff's occupational activities w h i l e he was employed by t h e Defendant. I f t h e P l a i n t i f f has a p r e - e x i s t i n g i n j u r y o r c o n d i t i o n , then you s h o u l d compensate him o n l y f o r t h e a g g r a v a t i o n o f t h e pre¬ existing i n j u r y o r c o n d i t i o n and n o t t h e e n t i r e injury itself. I f you f i n d t h a t t h e r e h a s b e e n an a g g r a v a t i o n o f a p r e - e x i s t i n g c o n d i t i o n you s h o u l d , i f p o s s i b l e , d e c i d e what p o r t i o n o f t h e P l a i n t i f f ' s p r e s e n t c o n d i t i o n r e s u l t e d from t h e a g g r a v a t i o n and o n l y award h i m damages f o r t h a t p e r c e n t a g e o f h i s i n j u r y i n your v e r d i c t . " The trial court refused to give the j u r y charges b y CSX; i n s t e a d , t h e t r i a l of apportionment as proposed c o u r t c h a r g e d t h e j u r y on t h e i s s u e follows: "The preexistence of the condition i n the P l a i n t i f f w h i c h s e r v e s o n l y t o make h i m m o r e o r l e s s susceptible to the i n f l i c t i o n of the injury i n q u e s t i o n , d o e s n o t a f f e c t t h e d a m a g e s t o w h i c h he i s entitled. "So i f y o u f i n d f o r t h e P l a i n t i f f , y o u may a w a r d him monetary compensation o n l y f o r t h e e x t e n t o f t h e injury proximately caused by the Defendant's negligence or v i o l a t i o n of the Locomotive Inspection Act or s a f e t y r e g u l a t i o n . " I f t h e P l a i n t i f f has a p r e e x i s t i n g i n j u r y o r c o n d i t i o n , then you s h o u l d compensate him o n l y f o r the aggravation of the preexisting injury or c o n d i t i o n and n o t t h e e n t i r e i n j u r y i n i t s e l f . 28 1071507 " I f y o u f i n d t h a t t h e r e h a s b e e n an a g g r a v a t i o n of a p r e e x i s t i n g c o n d i t i o n , you s h o u l d , i f p o s s i b l e , d e c i d e what p o r t i o n s of the P l a i n t i f f ' s present c o n d i t i o n r e s u l t e d from t h e a g g r a v a t i o n and only a w a r d h i m damages f o r t h a t p e r c e n t a g e o f h i s i n j u r y i n your v e r d i c t . " I f , however, you cannot s e p a r a t e t h e i n j u r i e s c a u s e d o r e x a c e r b a t e d by t h e a c c i d e n t f r o m t h o s e r e s u l t i n g from a p r e e x i s t i n g c o n d i t i o n , then the Defendant i s l i a b l e f o r a l l of such i n j u r i e s . " The p r o p o s e d statement the a s u b m i t t e d b y CSX o f t h e l a w on t h e i s s u e proposed charges defendant's plaintiff's only charges correctly preexisting not a of apportionment. instructed negligence merely were condition, the Although the j u r y aggravates correct that when or exacerbates defendant f o r the a g g r a v a t i o n or e x a c e r b a t i o n of the is a liable preexisting c o n d i t i o n p r o x i m a t e l y c a u s e d by t h e d e f e n d a n t ' s n e g l i g e n c e and not the e n t i r e instruct injury the injury jury caused or from the i n j u r y then that exacerbated resulting 97 F . 3 d a t 6 0 3 . court proposed included charge no. the proposed i f i t were i t s h o u l d compensate Stevens, trial itself, an 41, by solely unable the which 29 failed separate to the negligence from a p r e e x i s t i n g charge almost to defendant's the employee The charges condition f o r the whole injury. g i v e n t o t h e j u r y by t h e verbatim informed statement the jury of CSX's that a 1071507 defendant of a i s liable only preexisting condition defendant's negligence trial of court's to exacerbated by the and n o t t h e e n t i r e i n j u r y i t s e l f . The the supra, compensated jury by the f o r the whole trial court that plaintiff's the defendant's i f the jury negligence a the proposition injury was caused injury then the employee should The correct from or the injury. was caused included r e s u l t i n g from p r e e x i s t i n g c o n d i t i o n s be exacerbation by i n Stevens, separate or proximately charge to the j u r y also law s e t f o r t h unable f o r the aggravation charge given statement the of the a p p l i c a b l e law. In addition applicable was Raymon with by freight forces, such testified Dr. working conditions aboard degenerative i n this and that of case. spine court Miller Dr. was e x p o s e d Kelley the f r e i g h t disk Dr. and and to r i d i n g opined trains disease, 30 was disease. t o d e g e n e r a t i v e d i s k and and the r e p e t i t i v e trauma as t h o s e M i l l e r Raymon statement t h e j u r y by t h e t r i a l disk t r a i n s , can c o n t r i b u t e Both correct given degenerative disease. Miller's a the evidence and Dr. K e l l e y vibrating being law, the charge supported diagnosed to spine that contributed Dr. the to Raymon 1071507 specifically the stated trains that "aggravated Miller's or Dr. on opined his disk that the symptoms" presentation and symptoms." other disease Miller's to symptoms hand, other conditions contribute The basis to M i l l e r ' s split f o r the Miller's causes. a safe history of court's the more," and t h a t freight trains as to inability jury's evidence causation to apportion working environment and Miller's did not Accordingly, r e f u s a l to give further CSX's find no provided liability we find no proposed and error apportionment with i n s t r u c t i o n a c t u a l l y given a for i n f a i l i n g to and M i l l e r ' s apportionment trial Dawkins symptoms. i n the smoking. Miller's Dr. i n j u r y b e t w e e n CSX's a l l e g e d n e g l i g e n c e provide trial aboard attributed and w e r e t h e r e s u l t o f h i s age h i s t o r y o f smoking and " n o t h i n g working aboard his to h i s c l i n i c a l degenerative conditions precipitated "contributed Dawkins, working age and h i s error i n the jury charges regard on to the to the j u r y by t h e court. C. Special-Verdict CSX a l s o a r g u e s t h a t submit the t r i a l i t s s p e c i a l - v e r d i c t form 31 Form court erred to the j u r y . i n refusing to CSX contends 1071507 that t h i s was multiple a complicated claims, extensive c a u s e s o f i n j u r y and that the use of a that expert lasted issues multiple f o r m was necessary not form. Bissett v. Whether to direct special verdicts court. B i s s e t t , s u p r a ; C o m m i t t e e Comments on Rule of 49, Ala. R. Quad C i t i e s , The permitted FELA 555 the P.; So. jury negligence alleged form would see 2d negligence, make claim also and also of Cir. FELA the permitted verdict of 1973 such question 8 as of age the following: 32 the or trial Adoption of SouthTrust Bank by CSX have would findings on both strict-liability LIA. the The jury negligence, and/or the claim, special-verdict to f a u l t b e t w e e n CSX's v i o l a t i o n of the matters 1 992). 1989). individual Miller's contributory Specifically, general submitted the violation a D a r d e s s v. (Ala. form have work-related the to (8th sound d i s c r e t i o n 746 a p e r c e n t a g e s of jury Civ. 727 return the special-verdict which the is within to 2d FELA does Northern jury F. The Burlington the 969 with and presented. special-verdict R.R., nine days, testimony, a special-verdict to a d e q u a t e l y address the require trial and history special-verdict apportion LIA, other of CSX's non- smoking. form asked 1071507 "What p e r c e n t a g e of c a u s e d by t h e f o l l o w i n g : Plaintiff's condition was " a . P e r c e n t a g e due t o D e f e n d a n t ' s v i o l a t i o n of Locomotive I n s p e c t i o n Act p e r t a i n i n g to securely mounted and braced cab seats: "b. Percentage % due to Defendant's negligence: Percentage due to Plaintiff's negligence: o "c. " d . P e r c e n t a g e due t o n o n - w o r k r e l a t e d i n c l u d i n g age a n d / o r s m o k i n g : Q, matters, f! % Question 9 following of the special-verdict form asked the jury the question: "What t o t a l a m o u n t do y o u find, without any r e d u c t i o n f o r a n y n e g l i g e n c e t h a t y o u may find on P l a i n t i f f ' s p a r t o r due t o n o n - w o r k r e l a t e d m a t t e r s including age and/or smoking, will fairly and adequately compensate P l a i n t i f f f o r h i s a l l e g e d neck injury?" In N o r f o l k Southern 2000), t h i s Court plaintiff damages sued for engineer. have v. B r a d l e y , considered a similar Norfolk injuries under he the jury on-the-job the sustained Norfolk submitted permitted plaintiff's Ry. to 772 So. issue. FELA working a special-verdict accident 33 and (Ala. to as the recover a yard form t h a t would damages certain 1147 In B r a d l e y , seeking while apportion 2d between preexisting the non- 1071507 work-related the illnesses plaintiff included, to that miss independently work. among o t h e r s , Norfolk's the following would have caused s p e c i a l - v e r d i c t form questions: " Q u e s t i o n 6 a s k s : 'What a m o u n t do y o u f i n d , without a n y r e d u c t i o n f o r a n y n e g l i g e n c e w h i c h y o u may find on t h e P l a i n t i f f ' s p a r t , w i l l f a i r l y a n d adequately compensate the Plaintiff for the injury he received?' Q u e s t i o n 7 a s k s : 'What p e r c e n t a g e o f t h e damages determined in Question 6 above is a t t r i b u t a b l e to a p r e - e x i s t i n g c o n d i t i o n or to the P l a i n t i f f ' s p r e v i o u s or subsequent a c c i d e n t s ? ' " Bradley, The verdict 772 So. trial form the at court to special-verdict "complex." 2d In the form 1152. refused jury. was submit Norfolk to trial the Norfolk's argued required a f f i r m i n g the s p e c i a l - v e r d i c t form to on because court's jury, this special- appeal the case refusal Court that to was submit stated: "The t r i a l c o u r t p r o p e r l y r e f u s e d N o r f o l k S o u t h e r n ' s p r o p o s e d v e r d i c t f o r m , b e c a u s e i t was c o n f u s i n g and misleading. Question 6 s p e c i f i c a l l y asks the j u r y to a s s e s s t h e amount o f damages t h a t w o u l d f a i r l y and a d e q u a t e l y compensate B r a d l e y f o r h i s injury. Then Q u e s t i o n 7 a s k s t h e j u r y t o a s s e s s a p e r c e n t a g e o f t h e amount o f damages f r o m Q u e s t i o n 6 that are a t t r i b u t a b l e t o 'a p r e - e x i s t i n g c o n d i t i o n o r t o t h e P l a i n t i f f ' s p r e v i o u s or subsequent a c c i d e n t s . ' The q u e s t i o n s a r e i n c o n s i s t e n t a n d p r e s e n t an i n c o r r e c t b a s i s f o r d e t e r m i n i n g d a m a g e s . The q u e s t i o n s would have asked the j u r y to determine the amount of damages Bradley was entitled to based on the o n - t h e - j o b a c c i d e n t and t h e n t o a s s i g n a p e r c e n t a g e 34 a 1071507 of those accident damages as b e i n g a t t r i b u t a b l e t o or medical c o n d i t i o n . another "In a d d i t i o n , the t r i a l court specifically charged the j u r y that Bradley could not recover f o r a n y o t h e r a c c i d e n t o r i l l n e s s t h a t was n o t d i r e c t l y t h e r e s u l t o f t h e a c c i d e n t i n q u e s t i o n . ... "The j u r y was p r o p e r l y i n s t r u c t e d t h a t i t c o u l d compensate B r a d l e y o n l y f o r i n j u r i e s r e s u l t i n g from t h e t r a i n a c c i d e n t . The t r i a l c o u r t d i d n o t e r r i n r e f u s i n g N o r f o l k Southern's proposed v e r d i c t form." Bradley, 772 S o . 2 d a t 1 1 5 2 . Like this questions case 6 and 7 i n B r a d l e y , ask the j u r y to assign questions a percentage damages as a t t r i b u t a b l e t o n o n - w o r k - r e l a t e d and h i s t o r y of smoking Miller the asks jury i n Bradley, instructed by the the trial compensated f o r any i n j u r y negligence. Accordingly, exceeded verdict the j u r y i t s discretion form jury court not we We such f u r t h e r note that like case Miller proximately cannot say that i n r e f u s i n g to submit to the j u r y . 35 f o r h i s neck matters i n this that Miller's t o compensate any r e d u c t i o n f o r n o n - w o r k - r e l a t e d h i s age and h i s t o r y o f s m o k i n g . of i s s u e s s u c h as age f o r t h e a m o u n t o f d a m a g e s he i s e n t i t l e d i n j u r y without as and then 8 and 9 i n was properly could caused not be by CSX's the t r i a l court CSX's special- 1071507 II. CSX motion FELA argues that the for a preverdict for lost wages. 4 L o s t Wages trial JML as CSX argued retired f r o m e m p l o y m e n t w i t h CSX should have after that motion been date. f o r a JML precluded The i s as court to erred Miller's that i n March from s t a n d a r d of in denying i t s claim under the Miller voluntarily 2003 and, therefore, recovering review any for a lost wages ruling on a follows: "When r e v i e w i n g a r u l i n g on a m o t i o n f o r a JML, t h i s C o u r t u s e s t h e same s t a n d a r d t h e t r i a l court used i n i t i a l l y i n d e c i d i n g whether t o g r a n t or deny the m o t i o n f o r a JML. P a l m H a r b o r Homes, I n c . v . Crawford, 689 So. 2d 3 ( A l a . 1 997 ) . Regarding q u e s t i o n s of f a c t , the u l t i m a t e q u e s t i o n i s whether the nonmovant has p r e s e n t e d s u f f i c i e n t e v i d e n c e t o a l l o w t h e c a s e t o be s u b m i t t e d t o t h e j u r y f o r a factual resolution. C a r t e r v . H e n d e r s o n , 598 So. 2 d 1350 ( A l a . 1 9 9 2 ) . The n o n m o v a n t m u s t h a v e p r e s e n t e d s u b s t a n t i a l evidence i n order to w i t h s t a n d a motion f o r a JML. See § 1 2 - 2 1 - 1 2 , A l a . C o d e 1 9 7 5 ; W e s t v . F o u n d e r s L i f e A s s u r a n c e Co. o f F l o r i d a , 547 So. 2 d 870, 871 ( A l a . 1989). A reviewing court must d e t e r m i n e w h e t h e r t h e p a r t y who b e a r s t h e b u r d e n o f p r o o f has p r o d u c e d s u b s t a n t i a l e v i d e n c e c r e a t i n g a f a c t u a l d i s p u t e r e q u i r i n g r e s o l u t i o n by t h e j u r y . C a r t e r , 598 So. 2 d a t 1 3 5 3 . In r e v i e w i n g a r u l i n g on a m o t i o n f o r a JML, t h i s C o u r t v i e w s t h e e v i d e n c e i n t h e l i g h t most f a v o r a b l e t o t h e nonmovant and i n j u r e d e m p l o y e e can r e c o v e r l o s t wages u n d e r the FELA. See S e a b o a r d S y s . R.R. v . K e e n , 514 So. 2 d 1018 ( A l a . 1 9 8 7 ) ; N o r f o l k S o u t h e r n Ry. v . B l a c k m o n , 262 Ga. A p p . 2 6 6 , 585 S.E. 2 d 194 ( 2 0 0 3 ) . 4 An 36 1071507 e n t e r t a i n s such reasonable inferences would have been free t o draw. Id. q u e s t i o n of law, however, t h i s Court p r e s u m p t i o n o f c o r r e c t n e s s as t o t h e t ruling. R i c w i l , I n c . v . S.L. P a p p a s & 2d 1126 ( A l a . 1 9 9 2 ) . " Waddell So. & Reed, I n c . v. U n i t e d 2 d 1 1 4 3 , 1152 The Railroad 231a(a)(1), Investors as t h e j u r y Regarding a i n d u l g e s no rial court's Co., 599 So. Life I n s . Co., 8 7 5 ( A l a . 2003). Retirement Act ("RRA"), 45 U.S.C. provides: "(1) The f o l l o w i n g - d e s c r i b e d i n d i v i d u a l s , i f t h e y shall have ... f i l e d application for annuities, shall, subject to the conditions set forth i n subsections ( e ) , ( f ) , a n d (h) o f t h i s s e c t i o n , b e e n t i t l e d t o a n n u i t i e s i n t h e amounts p r o v i d e d u n d e r s e c t i o n 231b o f t h i s title-"(i) individuals who have attained retirement age (as d e f i n e d i n section 216(l) o f t h e S o c i a l S e c u r i t y A c t [42 U.S.C. § 4 1 6 ( l ) ] ) ; " ( i i ) i n d i v i d u a l s who h a v e a t t a i n e d t h e a g e of s i x t y and have c o m p l e t e d t h i r t y y e a r s o f service; "(iii) i n d i v i d u a l s who h a v e a t t a i n e d t h e age o f s i x t y - t w o a n d h a v e c o m p l e t e d l e s s than thirty years of s e r v i c e , but the annuity of such individuals shall be r e d u c e d b y 1/180 f o r e a c h o f t h e f i r s t 36 m o n t h s t h a t he o r s h e i s u n d e r r e t i r e m e n t age (as d e f i n e d i n s e c t i o n 2 1 6 ( l ) o f t h e S o c i a l S e c u r i t y A c t when t h e a n n u i t y b e g i n s t o a c c r u e a n d b y 1/240 f o r e a c h a d d i t i o n a l m o n t h t h a t he o r s h e i s u n d e r r e t i r e m e n t age (as d e f i n e d i n s e c t i o n 2 1 6 ( l ) o f t h e 37 § 1071507 S o c i a l S e c u r i t y A c t [42 U.S.C. § 4 1 6 ( l ) ] ) when t h e a n n u i t y b e g i n s t o a c c r u e ; "(iv) individuals who have a current connection with the r a i l r o a d industry, whose permanent physical or mental c o n d i t i o n i s s u c h a s t o be d i s a b l i n g f o r work i n t h e i r r e g u l a r o c c u p a t i o n , a n d who (A) h a v e c o m p l e t e d t w e n t y y e a r s o f s e r v i c e o r (B) h a v e a t t a i n e d t h e a g e o f s i x t y ; a n d "(v) i n d i v i d u a l s whose p e r m a n e n t or mental c o n d i t i o n i s such t h a t unable to engage in any employment." The RRA annuity imposes two c o n d i t i o n s physical they are regular on t h e r e c e i p t of retirement benefits: " ( 1 ) No i n d i v i d u a l s h a l l be under subsection (a)(1) of s h a l l have ceased t o r e n d e r an e m p l o y e r a s d e f i n e d in title. e n t i t l e d t o an a n n u i t y t h i s s e c t i o n u n t i l he compensated s e r v i c e t o s e c t i o n 231(a) of t h i s "(2) An a n n u i t y under subsection (a)(1) of this s e c t i o n s h a l l be p a i d o n l y i f t h e a p p l i c a n t shall h a v e r e l i n q u i s h e d s u c h r i g h t s a s he may h a v e t o r e t u r n t o t h e s e r v i c e o f an e m p l o y e r " 45 U.S.C. § 2 3 1 a ( e ) ( 1 ) It i s undisputed retirement age and ( 2 ) . that Miller applied f o r and received b e n e f i t s p u r s u a n t t o § 2 3 1 a ( a ) ( 1 ) ( i i ) , b a s e d on h i s and h i s years o f s e r v i c e w i t h relinquished any r i g h t pursuant to § 231a(e)(1) to return and (2). 38 CSX, a n d t h a t he v o l u n t a r i l y t o h i s employment Miller with specifically CSX stated 1071507 that he d i d not contends, take Miller disability should any damages f o r l o s t to retire The his rights argument rejected. In 2009)(not Yard f o r CSX, slipped recover, had i n the alleged provided § the fell plaintiff The 5 safer under previously walking injury on FELA B a l l a s t i s a type of g r a v e l rock p l a c e d railroad ties to provide stability and distribute loads. T h e r e a r e two t y p e s o f b a l l a s t , w h i c h i s l a r g e r , and y a r d b a l l a s t , 39 CSX La. railroad 2006, i n CSX's S i b e r t CSX seeking to alleging that putting mainline On f r o m CSX years been v. 25, yard b a l l a s t , surface. and a April sued by to (E.D. 2009) ballast retired h i s age Broadus 8, wages and the chose CSX. the p l a i n t i f f , r a t h e r than 5 recovering from in July plaintiff voluntarily on has mainline things, lost 2 3 1 a ( a ) ( 1 ) ( i i ) based from CSX 2 3 1 a ( a ) ( 1 ) ( i i ) and opinion 08-1201, on S i b e r t Yard a § CSX Supp. 2 d ) , i t s duties ballast 2007, (No. Alabama. among o t h e r breached by s u s t a i n e d a back and in Mobile, to unpublished Inc., precluded future compensation r e p o r t e d i n F. engineer when he to Therefore, M a r c h 2 0 0 3 , b e c a u s e he pursuant presented an Transportation, been wages a f t e r voluntarily relinquish have retirement. of which February pursuant CSX he 16, to service. b e t w e e n and u n d e r drainage and to ballast: mainline which i s smaller. 1071507 CSX from moved the d i s t r i c t recovering plaintiff's future decision court lost to preclude wages the because, to v o l u n t a r i l y retire i t said, and b e n e f i t s p u r s u a n t t o t h e RRA r e q u i r e d h i m t o c e a s e service of an e m p l o y e r ; lost the and t o r e l i n q u i s h t h e r i g h t t o r e t u r n future terms court therefore, wages f o r work o f t h e RRA. i tcontended, he c o u l d plaintiff to receive compensated to the service he c o u l d no l o n g e r I n d e n y i n g CSX's m o t i o n , not recover perform under the d i s t r i c t stated: "The RRA d o e s n o t , e i t h e r e x p l i c i t l y or by cross-reference, preclude a claim f o r future lost wages u n d e r t h e FELA. The RRA ' i s s u b s t a n t i a l l y a Social Security Act f o r employees of common c a r r i e r s . ' E i c h e l [ v . New Y o r k C e n t r a l R.R., 375 U.S. 2 5 3 , 254 ( 1 9 6 3 ) ] . I t e s t a b l i s h e s c o n d i t i o n s f o r retirement and d i s a b i l i t y . I t does n o t d e a l with employer t o r t l i a b i l i t y . I t i s up t o t h e R a i l r o a d R e t i r e m e n t B o a r d (RRB) t o d e t e r m i n e e l i g i b i l i t y a n d c o n t i n u i n g e l i g i b i l i t y f o r r e t i r e m e n t b e n e f i t s . See 45 U.S.C. § 2 3 1 f ( b ) ( 1 ) "Defendant e s s e n t i a l l y urges that because plaintiff voluntarily retired, as d e f i n e d by t h e RRA, he h a s no f u t u r e working capacity. This argument begs t h e q u e s t i o n o f whether h i s employer's negligence caused h i s l o s s of earning c a p a c i t y which provoked h i s retirement. F u r t h e r m o r e , i t s h o u l d be n o t e d t h a t v o l u n t a r y r e t i r e m e n t u n d e r t h e RRA d o e s not require a worker to [forgo] a l l future employment--only that rendered t o an employer c o v e r e d u n d e r t h e RRA. In a d d i t i o n , the Court finds i t s i g n i f i c a n t t h a t d e f e n d a n t c i t e s t o no r e p o r t e d cases in support of i t s novel proposition. 40 the 1071507 D e f e n d a n t r e l i e s s o l e l y on an u n p u b l i s h e d o r d e r f r o m a s t a t e court i n Kentucky to support i t s c o n t e n t i o n . (R. Doc. 61)(citing Fairchild v. CSXT , No. 0 5 - C I 0 6 6 4 2 ( C i r . C t . Ky. 2 0 0 8 ) ) . The o r d e r , which i s o n l y a few s e n t e n c e s l o n g and l a c k s substantive analysis, o f f s e t s a j u r y award for future lost wages. F a i r c h i l d v . CSXT , No. 0 5 - C I - 0 6 6 4 2 ( C i r . C t . Ky. 2 0 0 8 ) . I t d o e s n o t p r e c l u d e the p l a i n t i f f from presenting evidence of future wage c a p a c i t y at t r i a l . Id. I n d e e d , t h e C o u r t h a s f o u n d no a u t h o r i t y under the FELA t h a t r e q u i r e s such p r e c l u s i o n . "The Court sees no reason why plaintiff's relinquishment of work w i t h a covered employer should preclude him from arguing under the FELA t h a t , b u t f o r t h e n e g l i g e n c e o f h i s e m p l o y e r and h i s r e s u l t i n g i n j u r y , he w o u l d h a v e c o n t i n u e d to work and r e c e i v e wages. The f a c t f i n d e r may certainly decide whether or not this is true and, i f n e c e s s a r y , t o w h a t age p l a i n t i f f w o u l d h a v e a c t u a l l y worked. Furthermore, defendant can introduce e v i d e n c e t h a t p l a i n t i f f r e t i r e d and a r g u e t h a t he would have r e t i r e d at t h a t time r e g a r d l e s s of h i s injury. [CSX] could also argue that [the plaintiff's] f a i l u r e to r e t u r n to work v i o l a t e d h i s d u t y t o m i t i g a t e damages. R u s s e l l v. N a t ' l R.R. P a s s e n g e r C o r p . , 189 F. 3d 5 9 0 , 596 (7th C i r . 1999) ( h o l d i n g t h a t a FELA p l a i n t i f f c l a i m i n g damages f o r lost future earnings has a duty to mitigate damages). But, plaintiff's claim for tort-like damages f o r h i s e m p l o y e r ' s a l l e g e d n e g l i g e n c e is separate from his right to receive retirement b e n e f i t s u n d e r t h e RRA. And h i s r e c e i p t o f t h e s e b e n e f i t s d o e s n o t as a m a t t e r o f l a w p r e c l u d e him f r o m r e c o v e r i n g f u t u r e wage l o s s as an e l e m e n t o f h i s damages u n d e r t h e FELA." We find similarly the hold relinquishment reasoning that of his of Miller's Broadus retirement r i g h t to 41 persuasive, and employment w i t h his CSX and we voluntary would not 1071507 preclude that, him but injury, with from f o r the damages alleged negligence under o f CSX to earn the and through FELA his wages resulting h i s employment CSX. this jury could after the case have and instead of and his he retiring The surgery in cervical CSX was and have time treatment for diagnosed order to t h a t he been CSX for his the in was those symptoms. Dr. degenerative disk in nerve responded w e l l r e l e a s e d to for 2002 and root performed and the surgery to the fuse and Dr. Raymon i n S e p t e m b e r 2002 t o r e t u r n t o h i s f u l l duties without be undergoing work not work f r o m w o r k w h i l e he with radiculopathy Miller to to the n e c k symptoms o c c u r r e d Miller decompress which after 2003 i f i t had m i s s any from willing continued of M i l l e r ' s cervical released Miller Miller onset vertebrae. requested evidence symptoms neck i n March subsequently with that would conservative disease presented d i d not Miller receiving Raymon of that neck i n j u r y . 2001, Miller concluded onset surgery r e t u r n to work. restrictions. Miller after as he w o u l d h a v e c o n t i n u e d In with seeking again began he returned to experiencing work and 42 was symptoms exposed in to his neck the work 1071507 conditions who prescribed and, conditions at that time worked until March could no retire i f not, longer intended unable to to receive do and performed Miller work until so and Raymon, that for his the age neck p a i n work Miller pain." job that he chose he his to both needed to 65 pain. of time i n h i s n e c k , and reached of the duties at to the p a i n . tolerate full determined he continue tolerate t e s t i f i e d t h a t he because but Miller following that he was continued his and to retirement CSX. Accordingly, based on the reasoning evidence presented h e r e , we not CSX's p r e v e r d i c t for and could the the p a i n Miller treatment he "keep w o r k i n g tolerate f r o m CSX. whether o f h i s j o b and to 2003. treatment t o Dr. could Miller from returned with under the conservative Miller discussed changed chose trains. the p o s s i b i l i t y of whether h i s w o r k i n g c o n d i t i o n s Miller be aboard the err i n denying lost wages a f t e r III. A. conclude that March the as Failure 43 of to trial and the court did to M i l l e r ' s 2003. Mitigation Alleged JML i n Broadus Damages Mitigate claim 1071507 CSX n e x t argues that Miller failed to that retirement erred A FELA p l a i n t i f f F.3d 1226 1999). (D. lost injury, court date. v. Union Broadus, 189 F. Pacific 509, 521 Fleetwood (Maine damage, loss that must a party take duty to mitigate of Pennsylvania, Once defendant has t h e burden Jones v. could Consolidated who reasonable damages Rail that mitigated Corp., 44 arises (quoting I n c . , 878 that A.2d a FELA h i s o r h e r damages, t h e FELA of proving have '" i t i s established has a duty t o m i t i g a t e effort has See A v c o F i n . S e r v s . , I n c . or plaintiff reasonable, (7th C i r . v . N u g e n t , 436 F. S u p p . 2 d 1 9 3 , 204 Homes 2005))). v. 3 d 5 9 0 , 596 a f t e r he o r s h e h a s s u f f e r e d an i n j u r y o r l o s s v. 56 Russell supra; R.R., damages a r i s e s a f t e r a p a r t y 2006)("'A p l a i n t i f f ' s Searles his the t r i a l (Ala. 1994)(noting Piche after wages has a d u t y t o r e a s o n a b l y Corp., 631 S o . 2 d 940 that of law, wages a f t e r t h a t lost See W i l s o n Passenger to reduce i t ) ; Me. his i n j u r y , l o s s , o r damage. suffered steps claiming The d u t y t o m i t i g a t e Ramsey, has damages (10th C i r . 1995); R.R. suffered v mitigate him t o recover h i s damages. National as a m a t t e r i n M a r c h 2003 a n d , t h e r e f o r e , i n allowing mitigate i testablished, 80 0 the p l a i n t i f f , with h i s o r h e r damages. F.2d 590 (6th Cir. 1071507 1986). Not plaintiff also 181, 184 F.3d jobs question establish were the the defendant but that must available. whether an h i s o r h e r damages Wilson, employee (10th C i r . 1977); 684 (2d C i r . Dr. duty Raymon Hawkins v. 1115 acted i s a question for T r e j o v . D e n v e r & R i o G r a n d e W e s t e r n R.R., Miller's after the to mitigate jury. defendant appropriate Generally, the the t o seek employment, that reasonably 163 must failed show supra. only Legal 568 Serv. F.2d Care, 1998). t o m i t i g a t e h i s damages a r o s e had diagnosed his neck i n J u l y 2002, condition, and performed surgery to c o r r e c t the c o n d i t i o n , causing M i l l e r first from lose Miller satisfied returned worked that time to he Miller 1461, retired failed i t says, f i n d any t y p e Hansard h i s duty v. 1468 Ramsey, to h i s employment until because, work. supra; mitigate with i n March CSX Piche, h i s damages i n September 2003. However, t o m i t i g a t e h i s damages a f t e r b y h i s own of employment Pepsi-Cola he i n which Circuit 45 Bottling supra. when 2002 CSX and 2003, effort CSX r e l i e s Co., the United to upon 8 65 States he states March made no a f t e r March 2003. Metropolitan (5th C i r . 1989), of Appeals f o r the F i f t h admission to F.2d Court h e l d t h a t a n e m p l o y e e was not 1071507 entitled t o b a c k p a y b e c a u s e , " b y h i s own a d m i s s i o n , he s t o p p e d looking f o r work. A plaintiff search and c o n t i n u e to recover Miller's Howard RHB, 2d). persists Cir. issue abandon h i s j o b back pay." h i s d a m a g e s was o n g o i n g . See I n c . v . I n n D e v . , I n c . , (No. 0 7 - 1 0 2 4 - 1 1 , 2009) Generally, (D.S.D. 2009)(not "the duty reported [to mitigate i n F. damages] a s l o n g a s d a m a g e s a r e s u f f e r e d a n d may r e a s o n a b l y b e mitigated." the to mitigate Johnson I n t ' l , September Supp. (5th duty may n o t s i m p l y S c h w a r t z v . NMS 1978). Indus., We n o t e I n c . , 575 F . 2 d 5 5 3 , 556 the following testimony as t o of mitigation: "Q [ B y C S X ' s c o u n s e l ] . O k a y . Now, y o u w e r e t h e one who made t h e d e c i s i o n t o r e t i r e a n d t o n o t w o r k anymore, r i g h t ? "A [ B y M i l l e r ] . Y e s , s i r . b a s e d o n t h e p a i n I was h a v i n g I made t h a t d e c i s i o n i n my n e c k . "Q. O k a y . A n d y o u ' v e made no e f f o r t t o a l t e r n a t i v e employment s i n c e you've r e t i r e d , you? "A. No, s i r . "Q. Okay. Now, CSX r e h a b i l i t a t i o n program, don't "A. find have I h a v e no "Q. O k a y . rehabilitation has they? a vocational of a vocational idea. Y o u ' r e n o t aware program? 46 1071507 "A. No, s i r . "Q. D i d y o u make a n y e f f o r t to t r y to a n o t h e r j o b w i t h i n CSX s i n c e y o u r e t i r e d ? "A. find s i r . "Q. O k a y . H a v e y o u made a j o b o u t s i d e CSX? "A. any No, No, any e f f o r t to t r y to s i r . "Q. Y o u ' v e n o t made a n y e f f o r t j o b s i n c e you r e t i r e d , right? "A. find No, to t r yto find s i r . "Q. A n d a f t e r y o u r r e t i r e m e n t , t h e f a c t o f t h e m a t t e r i s , y o u h a v e no d e s i r e t o g e t a n o t h e r j o b either within the r a i l r o a d or outside the r a i l r o a d w i t h some o t h e r e m p l o y e r ; i s n ' t t h a t right? "A. And t h a t ' s based on t h e p a i n i n my neck. "Q. Now, s i n c e y o u r r e t i r e m e n t you've n o t had a n y d e s i r e t o go i n t o a n y f o r m o f e m p l o y m e n t w h e t h e r i t would h u r t your neck o r n o t ; i s n ' t t h a t t r u e ? "A. No, s i r , I h a v e n ' t . "Q. Okay. "A. I h a v e n ' t d e c i d e d w h a t j o b s w o u l d h u r t my neck o r w h i c h ones w o u l d n ' t . I just -- I j u s t h a d n ' t -- I d e c i d e d I d i d n ' t w a n t t o w o r k a n y m o r e due t o my n e c k . "Q. T h a t ' s r i g h t . And over t h e l a s t 5 y e a r s , s i n c e y o u r e t i r e d , y o u ' v e made no e f f o r t s t o t r y t o 47 1071507 find not, another job whether i t would hurt y o u ' v e made no e f f o r t , right? "A. No, your neck sir. "Q. Okay. And t h e r e a s o n f o r t h a t i s you i n t e n d to enjoy your r e t i r e m e n t , right? "A. I think "Q. You "A. I also Although employment v i e w e d as after supra. as other that CSX other worker CSX Miller in Pensacola c o u l d have r e t u r n e d March of his neck duty establish that The acknowledged at the t o my did neck." not his fact to m i t i g a t e his jury as damages were that available. other appropriate p e r f o r m was he was the by to Wilson, jobs i n d i c a t e s t h a t the could that h i s damages i n c u m b e n t u p o n CSX a switchman but 48 any testimony, f o r the time of h i s r e t i r e m e n t t o w o r k as pursue condition. record Miller -¬ mitigated i t was jobs just deposition. 2003, have r e a s o n a b l y for Miller. by me he a question appropriate to tell that in for Miller's failed suggested switchman. could i n my w o r k due e m p l o y m e n t a t CSX, were a v a i l a b l e job retired to work w i t h Further, show can't creates that you testified he a whole, Didn't just Miller continuing seeking I mentioned did. to whether M i l l e r by or that most and only of a senior that he t h a t d i d not do 1071507 so because he would h a v e on that d i d not Miller's unsuitable neck a JML submitting issue and testified CSX that on say t h a t on of M i l l e r ' s made prejudicial. charge to the a evidence court of safety hazard presented erred i n not mitigation in this entering and instead the t r i a l court's trial j u r y charge h i s d a m a g e s was court gave the on following jury: "If you are reasonably satisfied from the evidence the P l a i n t i f f acted reasonably i n this r e g a r d , t h e n t h e P l a i n t i f f has s a t i s f i e d h i s d u t y t o m i t i g a t e h i s damages. "However, i f you're r e a s o n a b l y s a t i s f i e d e v i d e n c e i n t h i s case t h e P l a i n t i f f has 49 the erroneous " I ' l l t e l l y o u t h a t an i n j u r e d p e r s o n i s u n d e r a duty to m i t i g a t e or m i n i m i z e the economic l o s s resulting from h i s i n j u r i e s , depending upon the s e v e r i t y o f h i s i n j u r i e s a n d w h e t h e r o r n o t he i s r e a s o n a b l y a b l e t o do s o , t h i s d u t y w o u l d include the i n j u r e d person's making a reasonable e f f o r t to resume g a i n f u l employment w i t h i n a r e a s o n a b l e t i m e following his injury. the and Instructions to m i t i g a t e The him jury. Mitigation that effect switchman. the issue to the duty the the t r i a l the issue next argues mitigation switching condition based B. CSX "what f o r the p o s i t i o n of cannot for [of] Additionally, Allerellie [ h i s ] neck." Accordingly, c a s e , we know from not 1071507 acted reasonably t o m i t i g a t e h i s damages i n t h i s r e g a r d , t h e n t h e P l a i n t i f f may n o t r e c o v e r d a m a g e s for earnings lost that otherwise c o u l d have been earned." CSX a r g u e s t h a t b a s e d on t h e f a c t s o f t h i s court's charge that Miller "reasonable effort reasonable time incomplete, and m i s l e a d i n g . Miller's fold duty and states following to mitigate March to his until he time to explained duty during age he f o l l o w i n g t h e September a f t e r h i s March that was two- First, CSX his to damages work in had a duty t o a f t e r he court gainful states returned CSX a improper, such. that M i l l e r 65. a case mitigate that M i l l e r resume CSX make within was i n this the period reached to employment as to before retired argues left in that the the jury with needed only t o make a employment within injury and d i d extended 2003 50 2002 a duty to mitigate also make i t c l e a r t h a t M i l l e r ' s the period duty injury" t o t h e j u r y by t h e t r i a l effort a Specifically, a and erroneous understanding reasonable gainful S e c o n d , CSX s t a t e s h i s damages 2003, reasonable not had under h i s damages been h i s surgery charge given the have Miller September 2002. mitigate resume following should that to was case the t r i a l retirement. 1071507 We disagree Miller suffered supported inference presented. As to mitigate his first had This surgery mitigate b e c a u s e he had testimony, continuing was retired i t was because upon his to which only to We one Miller continued mitigated the rather, work following the i t continuing injury to work. Put that satisfied have gave until rise March to him a mitigated his damages. 51 his from question reasonably another to way, a duty 2003, o f f a c t e x i s t e d as t o w h e t h e r t h e r e a f t e r M i l l e r reasonably not original prevented could was his have c o n c l u d e d t h a t Miller were to according of so duty 2003, continuation whether h i s d a m a g e s by suffered the time be March injury; return h i s employment. as in July to miss him in satisfied Miller not above, arose o n g o i n g and reasonably supra. Miller existed question could s u f f e r e d a new symptoms mitigate, h i s neck causing that is mentioned by r e t u r n i n g t o h i s e m p l o y m e n t w i t h CSX When mitigated that Schwartz, surgery. fact on damages duty to m i t i g a t e damages suffered. have which duty as Miller injury, evidence from work. of second the 2 0 0 2 , when he neck a because i t i n f e r s by Miller's long w i t h CSX's c o n t e n t i o n , and to a could 1071507 Accordingly, that Miller we conclude was u n d e r that a duty the t r i a l court's t o make a " r e a s o n a b l e resume g a i n f u l employment w i t h i n a r e a s o n a b l e his injury" that was consistent i t properly Therefore, we informed with the jury of find no e r r o r a s t o t h i s Railroad-Retirement allowing his a of to allow Miller's him to recover a c t u a l net l o s t deduction from income t a x e s , be would have actually reduced railroad-retirement past lost Miller's also for CSX to present evidence taxes, wages i n an amount Although the t r i a l gross wages ruled lost to a "taken taxes. that n e t sum home" thereby court f o r f e d e r a l and reflective after his only meant which i t defined 52 as state gross pay o f what he payment of "gross and c h a r g e d t h e j u r y t h a t i t c o u l d award earnings, of allowed CSX c o n t e n d s t h a t t h e t r i a l " n e t " wages as t o i n excess CSX s o u g h t t o e s t a b l i s h t h a t M i l l e r ' s income t a x e s " and court committed r e v e r s i b l e railroad-retirement wages. should improperly presented Taxes when i t r e f u s e d amount following issue. CSX n e x t a r g u e s t h a t t h e t r i a l the to the a p p l i c a b l e law. IV. error effort time the evidence charge court minus damages "net l o s t wages 1071507 after deduction concludes, CSX Miller was primarily Western v. o f f e d e r a l and Ry. v. allowed relies Liepelt, Ingram Tank S h i p s , support s t a t e income t a x e s . " to upon 444 overstate the U.S. Inc., 732 F.2d that i t s contention the 493 475 trial from wages. his gross wages i n order I t i s c l e a r t h a t the the than income. Liepelt, or her the gross Supreme C o u r t loss. and erred & Madore (5th. C i r . 1984), determine to in refusing required his net to lost m e a s u r e of damages i n employee's a f t e r - t a x income Liepelt, CSX Norfolk M i l l e r was appropriate a F E L A c a s e i s b a s e d on his to in (1980), court to deduct the r a i l r o a d - r e t i r e m e n t taxes pay h i s wage decisions 490, Thus, 444 U.S. at rather 493. In stated: "The a m o u n t o f money t h a t a wage e a r n e r i s a b l e t o contribute to the support of his family is unquestionably a f f e c t e d b y t h e a m o u n t o f t h e t a x he must pay to the Federal Government. It is his after-tax income, rather than his gross income before taxes, that provides the only realistic measure of h i s a b i l i t y to support h i s f a m i l y . I t f o l l o w s i n e x o r a b l y t h a t t h e wage e a r n e r ' s i n c o m e t a x i s a r e l e v a n t f a c t o r i n c a l c u l a t i n g the monetary l o s s s u f f e r e d b y h i s d e p e n d e n t s when he d i e s . " 444 U.S. federal j u r y may United at 493-94. income taxes It i s proper should be award to the p l a i n t i f f . States Court of Appeals 53 to instruct deducted from Id. Further, f o r the Fifth the any jury that damages the i n Madore, the Circuit stated: 1071507 "Unless t h e amounts t h e w o r k e r w o u l d have been r e q u i r e d t o pay i n income t a x e s and s o c i a l s e c u r i t y t a x e s i s n e g l i g i b l e o r s h o u l d , f o r some a r t i c u l a t e d r e a s o n , be d i s r e g a r d e d , t h e l o s t i n c o m e s t r e a m must be c o m p u t e d a f t e r d e d u c t i n g t h e i n c o m e t a x e s a n d s o c i a l s e c u r i t y t a x e s t h e w o r k e r would have p a i d had he c o n t i n u e d t o w o r k , f o r he i s e n t i t l e d o n l y t o b e made w h o l e f o r w h a t he h a s l o s t , h i s n e t i n c o m e . " Madore, 732 F . 2 d a t 4 7 9 There i s no d i s p u t e t a x e s a r e t o be d e d u c t e d determine h i s actual however, whether deducted from actual The (footnote omitted). both the federal from M i l l e r ' s net lost Miller's net lost that and s t a t e g r o s s wages i n o r d e r t o wages. The p a r t i e s r a i l r o a d - r e t i r e m e n t taxes gross wages income i n order dispute, are to be to determine h i s wages. r a i l r o a d - r e t i r e m e n t taxes have been e x p l a i n e d as paid pursuant t o t h e RRA follows: "Both employees and c a r r i e r s pay a f e d e r a l t a x [Railroad Retirement T a x A c t , 26 U.S.C. §§ 3 2 0 1 ¬ 3233] w h i c h funds a R a i l r o a d Retirement Account. The R a i l r o a d R e t i r e m e n t B o a r d , p r o v i d e d f o r b y t h e A c t , 45 U.S.C. § 2 3 1 f , d i s b u r s e s b e n e f i t s f r o m t h e a c c o u n t t o e a c h e l i g i b l e ' i n d i v i d u a l , ' 45 U.S.C. § 231a. " I n i t s modern form, t h e A c t r e s e m b l e s b o t h a p r i v a t e p e n s i o n program and a s o c i a l w e l f a r e p l a n . I t p r o v i d e s t w o t i e r s o f b e n e f i t s . The u p p e r t i e r , like a private pension, i s t i e d t o e a r n i n g s and career service. A n e m p l o y e e , t o be e l i g i b l e f o r b e n e f i t s , m u s t w o r k i n t h e i n d u s t r y 10 y e a r s . A b s e n t d i s a b i l i t y , no b e n e f i t i s p a i d , h o w e v e r , u n t i l t h e 54 1071507 e m p l o y e e e i t h e r r e a c h e s a g e 62 o r i s a t l e a s t y e a r s o l d a n d h a s c o m p l e t e d 30 y e a r s o f s e r v i c e . U.S.C. § 2 3 1 a ( a ) ( 1 ) . ... 60 45 "The lower, and l a r g e r , tier of benefits corresponds exactly to those an e m p l o y e e would e x p e c t t o r e c e i v e w e r e he c o v e r e d b y t h e S o c i a l S e c u r i t y A c t . 45 U.S.C. § 2 3 1 b ( a ) ( 1 ) . ... " Hisquierdo v. Hisquierdo, 439 U.S. 572, 574-75 (1979) (footnote omitted). "The c u r r e n t v e r s i o n o f t h e RRA was e n a c t e d i n 1974 The c u r r e n t v e r s i o n 'resembles both a p r i v a t e p e n s i o n p r o g r a m a n d a s o c i a l w e l f a r e p l an . ' H i s q u i e r d o v . H i s q u i e r d o , 4 3 9 U.S. 5 7 2 , 5 7 4 , 99 S . C t . 8 0 2 , 59 L . E d . 2 d 1 ( 1 9 7 9 ) . I t e s t a b l i s h e s two t i e r s o f b e n e f i t s : T i e r I , w h i c h p r o v i d e s amounts essentially equivalent to social security benefits; and T i e r I I , w h i c h p r o v i d e s r e t i r e m e n t b e n e f i t s o v e r and above s o c i a l security benefits and o p e r a t e s s i m i l a r l y t o o t h e r i n d u s t r i a l p e n s i o n s y s t e m s . See Railroad Retirement Board, Railroad Retirement H a n d b o o k 2 0 0 6 , a t 5, a v a i l a b l e a t w w w . r r b . g o v / p d f / opa/handbook.pdf ( h e r e i n a f t e r t h e 'Board Handbook'). The B o a r d , 'an i n d e p e n d e n t a g e n c y i n t h e e x e c u t i v e b r a n c h , ' a d m i n i s t e r s t h e RRA. 45 U.S.C. § 2 3 1 f . "The RRA F u n d i s s u p p o r t e d i n p a r t b y a t a x o n both the r a i l r o a d companies and the railroad employees. 26 U.S.C. §§ 3201, 3211. Both the r a i l r o a d s and t h e i r employees pay t a x e s i n t o T i e r I a t a r a t e e q u a l t o s o c i a l s e c u r i t y t a x e s . See i d . For T i e r I I , t h e t a x r a t e v a r i e s , and i s p u b l i s h e d a n n u a l l y b y t h e D e p a r t m e n t o f t h e T r e a s u r y . S e e 26 U.S.C. 3 2 4 1 ( d ) . The T i e r I I a n n u a l t a x r a t e f o r employers i s significantly h i g h e r than that f o r e m p l o y e e s . E . g . , 71 F e d . R e g . 67, 70 9 ( N o v . 22 , 2 0 0 6 ) (an e m p l o y e r i s t a x e d 1 2 . 1 p e r c e n t a n d a n e m p l o y e e 55 1071507 is taxed 3.9 percent c o m p e n s a t i o n ) . ... " CSX of (Ind. Ct. 2007). Miller relies on t h e d e c i s i o n i n M a y l i e v. N a t i o n a l P a s s e n g e r C o r p . , 791 F. S u p p . 477 that taxes the railroad-retirement g r o s s wages. sued We h i s employer injury he favor of damages agree. under suffered employment. his FELA back Following a t r i a l , the for to employee lost and wages were In Maylie, the to not d e d u c t i b l e the r a i l r o a d recover during percent of determining the on employee's the amount of however, the projected trial that the t r i a l railroad-retirement income and t h a t court taxes his erred 56 $238 , 0 0 0 . gross income of income. d i d not 80 In have take into The e m p l o y e r a r g u e d on in failing gross In the employee would i n the employee's the employee's things, a w a r d e d damages f o r court account the r a i l r o a d - r e t i r e m e n t taxes. appeal other after-tax t h e amount o f income t h a t i n taxes, of among a projected based f o r an course him, loss income employee damages the t h e e m p l o y e e was of from the j u r y returned a v e r d i c t i n awarded in R.R. (E.D. P a . 1 9 9 2 ) , a n d a r g u e s accordance with L i e p e l t , paid employee's T r a n s p . , I n c . v . G a r d n e r , 874 N . E . 2 d 3 5 7 , 3 6 1 - 6 3 App. his the income to include projected should have the gross been 1071507 reduced by 30 percent, rather than by 20 percent. Maylie, supra. During the after value account, The trial the c o u r t t h a t the value lost the the his injury of his was approximately eventual of stipulated the to employee's including the benefits. Based amount on counsel represented of the b e n e f i t s package the retirement or $4,700, i f the v a l u e employer value employee's was of the pension $4,700 benefits of this the the refusal, figure but trial year, i f taken was into excluded. f o r the refused employee's the employee $13,000 p e r pension to to present consider lost retirement court determined t h a t t h e $ 4 , 7 0 0 f i g u r e w o u l d be u s e d t o r e p r e s e n t t h e v a l u e t h e e m p l o y e e ' s b e n e f i t s and from the taxes. employee's Maylie, Relying gross t h a t no d e d u c t i o n w o u l d be income supra. upon L i e p e l t , the employer argued t h a t the r e t i r e m e n t taxes i n the employee's gross addressed allowed f o r the r a i l r o a d - r e t i r e m e n t c o u r t e r r e d i n r e f u s i n g t o i n c l u d e t h e amount o f t h e court of the i s s u e as income. The railroaddistrict follows: " R a i l r o a d r e t i r e m e n t taxes are p a i d i n t o a fund from w h i c h r a i l r o a d r e t i r e m e n t b e n e f i t s a r e p a i d o u t . See 45 U.S.C. § 2 3 1 n ( a ) . Had p l a i n t i f f c o n t i n u e d w o r k i n g until the age of s i x t y - t w o , and had plaintiff 57 trial 1071507 r e m a i n e d i n d e f e n d a n t ' s e m p l o y d u r i n g t h a t t i m e , he w o u l d h a v e b e e n e l i g i b l e f o r an a n n u i t y u p o n h i s retirement, paid from the fund into which his railroad r e t i r e m e n t t a x e s had b e e n p a i d . See 45 U.S.C. § 2 3 1 a ( a ) ( 1 ) ( i i ) . I t i s undisputed that p l a i n t i f f i s e n t i t l e d to r e c o v e r the v a l u e of l o s t f u t u r e f r i n g e b e n e f i t s . Cf. Jones & L a u g h l i n S t e e l C o r p . v . P f e i f e r , 462 U.S. 5 2 3 , 534 & n. 12, 103 S. C t . 2 5 4 1 , 2 5 4 9 & n. 12, 76 L. E d . 2 d 768 ( 1 9 8 4 ) ( l o s t f r i n g e b e n e f i t s ' s h o u l d be i n c l u d e d i n an ideal e v a l u a t i o n o f t h e w o r k e r ' s l o s s ; ' t h e s e may i n c l u d e , inter alia, r e t i r e m e n t and p e n s i o n p l a n s ) . I t i s l i k e w i s e c l e a r t h a t t h e $4,700 f i g u r e , w h i c h the p a r t i e s agreed r e p r e s e n t e d the v a l u e of p l a i n t i f f ' s b e n e f i t s package, d i d not i n c l u d e the contingent v a l u e of p l a i n t i f f ' s pension b e n e f i t s . The value t h a t t h e j u r y p l a c e d on p l a i n t i f f ' s lost future wages and b e n e f i t s , t h e r e f o r e , d i d n o t i n c l u d e t h e v a l u e of h i s l o s t r a i l r o a d r e t i r e m e n t p e n s i o n . It w o u l d be i n a p p r o p r i a t e t o d e d u c t f r o m p l a i n t i f f ' s lost salary taxes that, in effect, represented p l a i n t i f f ' s c o n t r i b u t i o n toward a pension without i n c l u d i n g , as an i t e m o f d a m a g e s , t h e v a l u e o f t h a t pension. Because defendant d i d not consent to i n c l u s i o n o f t h e v a l u e o f t h e p e n s i o n as an i t e m o f damages, i t was not e r r o r to refuse to reduce p l a i n t i f f ' s l o s t w a g e s b y t h e a m o u n t s he w o u l d h a v e had t o pay i n r a i l r o a d r e t i r e m e n t t a x e s . " Maylie, 791 Here, F. Supp. Miller 65, he taxes Had would into Miller have the 487-88 contends would have c o n t i n u e d o f age. at (emphasis t h a t , but t o w o r k f o r CSX added). f o r h i s neck until he injury, reached f o r CSX continued the r a i l r o a d - r e t i r e m e n t retirement pay fund, and e n t i t l e d to a l a r g e r retirement pension 58 he would a t 65 t h a n he years continued working to until 65 he reached have the been pension 1071507 he received entitled value when t o seek as p a r t i n this pension, 462 U.S. case. a t age 60. Although o f h i s damages of h i s retirement Corp v. P f e i f e r , so he r e t i r e d the reduction see Jones 5 2 3 , 534 Miller (1984), R a t h e r , he h a s s i m p l y the court inappropriate amount of his 65th to deduct the contributed i n Maylie, s o u g h t as damages claim pension f o r that pension, when Miller the reduction same Court's gross the after i t would lost he March wages would 2003 as p a r t of h i s otherwise to contribute of other lost Therefore, to a be the have through of h i s retirement would have retirement o f w h i c h he d i d n o t r e c e i v e . should in this case n o t be d e d u c t e d f r o m that jurisdictions t h a t have c o n s i d e r e d See Ramsey v . B u r l i n g t o n N o r t h e r n the Miller's wages t o d e t e r m i n e h i s n e t l o s t wages i s c o n s i s t e n t holdings issue. taxes To h o l d determination r a i l r o a d - r e t i r e m e n t taxes gross i n the value period. value that has not sought of r e q u i r i n g M i l l e r the f u l l This Miller's fund Steel M i l l e r has n o t done conclude railroad-retirement birthday effect from to the retirement damages the we i n the & Laughlin wages f r o m M a r c h 2003 t h r o u g h h i s 6 5 t h b i r t h d a t e . like was with this & S a n t a Fe R y . , 130 S.W.3d 646 (Mo. C t . A p p . 2 0 0 4 ) ( r e j e c t i n g d e f e n d a n t ' s r e l i a n c e 59 1071507 on Liepelt that the and Madore trial court while relying and holding e r r i n r e f u s i n g to admit d i d not on Maylie evidence of what employee w o u l d have had t o pay t a x e s when he d i d not retirement Southern v. (1997) Ry. the Perkins, (holding to allow that the 224 Ga. trial App. court of Ry. the v. 251 Va. benefits); 481 not err did railroad-retirement Chittum, railroad-retirement 552 , d e f e n d a n t t o show e m p l o y e e ' s n e t amount Western seek l o s t in 408 , 4 68 defendant's reliance on Liepelt the court not in refusing did err in refusing by Norfolk & and and 877 (1996) holding to that deduct r a i l r o a d - r e t i r e m e n t t a x e s f r o m e m p l o y e e ' s g r o s s wages i n to establish his net Accordingly, in r e f u s i n g to of Miller's deducting we allow conclude that CSX his from lost LIA next argues that claim. The order trial evidence taxes The his LIA i t was FELA p r o v i d e s gross for court as d i d not to the amount purposes 60 in order of to Claim entitled in wages the err wages. V. CSX the to p r e s e n t taxes net the wages). railroad-retirement those establish lost 545 reduced S.E.2d (rejecting trial S.E.2d i n c o m e as taxes); Norfolk part: t o a JML on Miller's 1071507 " E v e r y common c a r r i e r b y r a i l r o a d w h i l e e n g a g i n g i n commerce between any o f t h e s e v e r a l States or Territories, o r between any o f t h e S t a t e s and Territories, ... s h a l l be l i a b l e i n d a m a g e s t o a n y p e r s o n s u f f e r i n g i n j u r y w h i l e he i s e m p l o y e d b y s u c h c a r r i e r i n s u c h c o m m e r c e , ... f o r s u c h i n j u r y o r death resulting i n whole or i n part from t h e negligence o f any o f t h e o f f i c e r s , agents, or employees o f such c a r r i e r , o r by reason o f any defect or insufficiency, due t o i t s n e g l i g e n c e , i n i t s ... m a c h i n e r y ... o r o t h e r e q u i p m e n t . fl fl " I n a l l a c t i o n s o n a n d a f t e r A p r i l 2 2 , 1908 b r o u g h t a g a i n s t a n y s u c h common c a r r i e r b y r a i l r o a d u n d e r o r by v i r t u e o f any o f t h e p r o v i s i o n s o f t h i s c h a p t e r to r e c o v e r damages f o r p e r s o n a l i n j u r i e s t o an employee, o r where such i n j u r i e s have r e s u l t e d i n h i s d e a t h , t h e f a c t t h a t t h e e m p l o y e e may h a v e b e e n g u i l t y of contributory negligence s h a l l not bar a r e c o v e r y , b u t t h e damages s h a l l be d i m i n i s h e d b y t h e jury i n proportion t o t h e amount o f n e g l i g e n c e attributable t o s u c h e m p l o y e e : P r o v i d e d , T h a t no s u c h e m p l o y e e who may be i n j u r e d o r k i l l e d s h a l l b e h e l d t o have been g u i l t y o f c o n t r i b u t o r y n e g l i g e n c e in any case where t h e v i o l a t i o n by such common c a r r i e r o f any s t a t u t e enacted f o r t h e s a f e t y o f employees c o n t r i b u t e d t o t h e i n j u r y o r death of such employee." 45 U.S.C. §§ 51 & 5 3 . its a duty employees Birmingham Southern Pursuant t o t h e FELA, a r a i l r o a d to provide a safe workplace. R.R., 905 S o . 2 d 7 8 9 owes Glass v. ( A l a . 2004). This d u t y i s more e x p a n s i v e t h a n t h e g e n e r a l d u t y t o u s e r e a s o n a b l e care. Ex p a r t e W i l l i a m s , 554 S o . 2 d 440 61 (Ala. 1989)(Jones, 1071507 J., dissenting). In order to recover under a FELA claim a l l e g i n g n e g l i g e n c e , t h e p l a i n t i f f must p r o v e t h e e x i s t e n c e o f a duty, a breach of t h a t duty, c a u s a t i o n , and s u p r a ; C o n s o l i d a t e d R a i l C o r p . v. G o t t s h a l l , (1994). A relaxed u n d e r t h e FELA. is simply standard "'Under t h i s whether the of statute proofs slightest, i n producing the i n j u r y Missouri This Court has R.R., 352 512 U.S. U.S. U.S. or death a t 543 500, 506 been Glass, 532, case reason part, f o r which even the the damages (quoting Rogers (1957)). stated: "The F E L A was enacted i n 1908 i n order to p r o v i d e r a i l r o a d e m p l o y e e s a remedy f o r i n j u r i e s and death resulting from accidents on interstate railroads. C o n s o l i d a t e d R a i l Corp. v. Gottshall, 512 U.S. 5 3 2 , 5 4 2 , 114 S . C t . 2 3 9 6 , 129 L. E d 2 d 427 (1994). C o n g r e s s e n a c t e d t h e FELA b e c a u s e o f i t s f r u s t r a t i o n w i t h r a i l companies' evading liability to their employees f o r such injuries and death; c o n s e q u e n t l y , t h e F E L A s t r i p s s u c h an e m p l o y e r of many o f i t s c o m m o n - l a w d e f e n s e s . R o g e r s v. M i s s o u r i P a c . R.R., 352 U.S. 5 0 0 , 5 0 7 - 0 8 , 77 S . C t . 4 4 3 , 1 L. Ed. 2d 493 (1 957 ) . While the FELA i s to be construed liberally, i t is not a workers' compensation s t a t u t e , G o t t s h a l l , 512 U.S. at 543, 114 S . C t . 2 3 9 6 , n o r d o e s t h e F E L A r e n d e r an e m p l o y e r an i n s u r e r o f t h e s a f e t y o f i t s e m p l o y e e s . Atlantic C o a s t L i n e R.R. v . D i x o n , 189 F . 2 d 5 2 5 , 526 (5th Cir. 1951). 62 542 applied of a j u r y with n e g l i g e n c e p l a y e d any Gottshall, Pacific the t e s t justify that employer sought.'" 512 c a u s a t i o n has conclusion are damage. v. 1071507 " D e s p i t e t h e l i b e r a l manner i n w h i c h t h e FELA i s to be c o n s t r u e d , ' [ t ] h e b a s i s of the employer's l i a b i l i t y i s i t s n e g l i g e n c e , n o t t h e mere f a c t t h a t the injury occurred.' D i x o n , 189 F . 2 d a t 5 2 7 ; s e e a l s o L o u i s v i l l e & N a s h v i l l e R.R. v . G r e e n , 255 A l a . 642 , 644 , 53 So. 2 d 3 5 8 , 359 (1951). 'Employer negligence remains a prerequisite to liability.' S o t o v . S o u t h e r n P a c . T r a n s p . Co., 644 F . 2 d 1147, 1148 (5th C i r . 1981)." Glass, 905 The So. LIA 2d at 793. provides that "[a] railroad carrier allow t o be used a l o c o m o t i v e o r t e n d e r on only when the locomotive appurtenances without provide As a of i n note to makes 1 i t s and above, violation U r i e v . T h o m p s o n , 337 supplements and injured t h e FELA by U.S. i m p o s i n g on parts the 49 LIA railroad of i t s 163, all 337 parts condition life or U.S. and and limb a t 188. The LIA imposes appurtenances safe to of operate McGinn v. 63 and 188 U.S.C. does § not prohibitions (1949). interstate The railroads equipment." a "broad duty to unnecessary Burlington line employees, i t s locomotives without or safe to operate "'an a b s o l u t e and c o n t i n u i n g d u t y ' t o p r o v i d e s a f e Urie, use i t s railroad of p e r s o n a l i n j u r y . " action " [ i ] t merely 'unlawful.'" LIA danger mentioned cause tender are i n proper c o n d i t i o n unnecessary 20701(1). rather ... or may in keep proper peril N o r t h e r n R.R., to 102 1071507 F.3d 295, 299 (7th W e s t e r n R.R., with the U.S. necessity classes Crane 317 Cir. of v. 481 of (citing (1943)). proving [FELA] s u i t s . " Cedar Rapids Thus, (1969). 1996) & railroad The ... Urie, Iowa Lilly LIA v. U.S. City employers are injuries r e s u l t i n g from v i o l a t i o n s of McGinn, ... in at 189-90. Ry., 395 certain also 164, 166 liable for supra. A plaintiff demonstrating: "broad duty may (1) to establish that keep locomotives peril a l l i n proper unnecessary employer FRA. Ohio has failed McGinn, 102 R.R., causation violation 805 that to (6th the even the 817 to standard of Cir. the life 2d LIA. defendant's slightest, or and limb," at 2 99 G r e e n v. Thus, safe or (2) (4th in River of the i n p r o d u c i n g the 64 the LIA Cir. an its of operate its without the railroad issued by the v. Baltimore 1987)). The action Terminal LIA by breached that Mosco a plaintiff violation to regulations applicable supra; appurtenances (citing 1091 of employer and comply w i t h 1088, is 1985). parts Lilly, violation railroad condition F.3d F. the a LIA. ... See U.S. strictly the Trunk "dispense[s] negligence 337 Grand need FELA alleging Ry., 763 establish "'played & any a F.2d only part, i n j u r y or d e a t h f o r w h i c h 1071507 damages Rogus, not are sought.'" 35 U.S. a t 5 0 6 ) . a defense R.R., Gottshall, to a LIA claim. 818 F . 2 d 7 1 3 , 715 Miller alleged locomotives were Finally, not i n proper to ensure mounted and b r a c e d . " prescribed (quoting negligence v. B u r l i n g t o n violated the parts condition that contributory Garcia CSX unnecessary danger of p e r s o n a l failed a t 543 i s Northern (10th C i r . 1987). that on i t s l i n e s 512 U.S. LIA by and appurtenances and safe to using of which operate without i n j u r y b e c a u s e , he a l l e g e d , CSX the locomotive We the note cab seats that a cab were "securely seat, which i s b y f e d e r a l r e g u l a t i o n , 49 C.F.R. § 2 2 9 . 1 1 9 ( a ) , i s a locomotive part and appurtenance. Pacific Transp. C.F.R. § mounted it 229.119(a) initially violated "securely CSX relies Western the that mounted and b r a c e d " upon t h e d e c i s i o n seats failed that Southern be to v. Chicago alleging that provide locomotives. ( 8 t h C i r . 1990), a JML on a L I A c l a i m 49 "securely to establish in i t s i n Sandstrom 65 Further, i tfailed cab seats C o . , 907 F . 2 d 839 affirmed cab argues that M i l l e r § 229.119(a) by p r o v i n g Transp. court requires ( 9 t h C i r . 1993). v. and b r a c e d . " CSX C o . , 6 F . 3 d 603 See O g l e s b y a & North i n which violation 1071507 of § 229.119(a), required t o be In o f two Sandstrom, the carrying attempted but suffer to the seat The plaintiff the forward was sufficient found movement evidence a violation Appeals f o r the of grabbing the i n the seat seat the The seat the upon The that was jumped and the plaintiff in front plaintiff to court erred j u r y b e c a u s e , he said, the derailment trial itself court could have United States Court disagreed, stating: "The m e r e f a c t t h a t t h e s e a t m o v e d f o r w a r d u p o n t h e d e r a i l m e n t w o u l d n o t i t s e l f show t h a t t h e s e a t was not ' s e c u r e l y mounted and braced.' The latter requirement does not mean 'fixed in place' or 'immovable,' but o n l y t h a t t h e s e a t be securely attached and supported. Indeed, the record i n d i c a t e s t h a t t h e s e a t s w e r e d e s i g n e d t o be m o v a b l e f o r w a r d a n d b a c k w a r d b e c a u s e s u c h s e a t m o v e m e n t was necessary to enable the occupant to p o s i t i o n h i m s e l f to l o o k t h r o u g h the windows of the cab. 66 of supra. that the t r i a l from which the Circuit i t . causing c l a i m to the of § 229.119(a). Eighth with Sandstrom, r e f u s i n g to submit the rear of a l o c o m o t i v e a r g u e d on a p p e a l not "immovable." snowplow d e r a i l e d by were cab forward, serious injuries. seats seated locomotive moved cab was of the himself the or plaintiff the brace that in place" a s n o w p l o w when t h e tracks, in "fixed side-mounted seats pushing him concluding of 1071507 " [ T h e p l a i n t i f f ] i n t r o d u c e d no e v i d e n c e t h a t t h e s e a t i n f r o n t o f h i m was n o t ' s e c u r e l y m o u n t e d a n d braced.' Because of the l a c k of such evidence, the d i s t r i c t court j u s t i f i a b l y r e f u s e d to submit that issue to the jury." 907 F.2d a t 840-41. Sandstrom i s distinguishable There, the p l a i n t i f f ' s based on the derailment. pointed fact out that alleged violation that However, the seat the Eighth the seats moved forward Circuit Court during of a Appeals t o move f o r w a r d and t h a t t h e s e a t s be " s e c u r e l y The c o u r t c o n c l u d e d that the p l a i n t i f f i n j u r e d was n o t " s e c u r e l y m o u n t e d a n d b r a c e d " beyond t h e f a c t the seats designed moved i n the present to move Sandstrom, M i l l e r ' s backward-movement contends seats forward forward not during case and the derailment. are side-mounted backward like Although wall the seats seats in L I A c l a i m i s n o t b a s e d on t h e f o r w a r d - a n d design and has p r e s e n t e d were that t o be " f i x e d i n b y w h i c h he was the seat indicating case. the seat that no e v i d e n c e present o f § 2 2 9 . 1 1 9 9 ( a ) was d i d not require the seats p l a c e " or "immovable." offered the were d e s i g n e d backward and t h a t t h e requirement mounted and b r a c e d " from "securely of the evidence mounted 67 seat. Rather, to the effect and braced" Miller that the because the 1071507 track-mounting the It systems s e a t s t o be would be "loose," f o r the s e a t s had "loose" difficult and to "wobble," to comprehend c a u s i n g them t o eroded, which "wobble," that "shake," cab "shake," and § 229.119(a). established We a violation CSX's v i o l a t i o n the slightest, Gottshall, 512 in U.S. and the were loose, 543. "sag," "wobble" and "shake." system for installed i n the not which specialist. neck has i n turn the caused also Jagger 1990s, from f r o m Dr. K e l l e y , Dr. K r e s s t e s t i f i e d 68 an that Dr. to seats to that which u n s t a b l e and testimony seats of wear indicates early part, evidence the seats, as injury. presented secure because record expert b i o m e c h a n i c a l e n g i n e e r , and medicine " ' p l a y e d any Miller's Miller s e a t s t o become presented Miller a jury question existed locomotives i n the causing those Miller and The track-mounting that could required r e g u l a r l y exposed to side-mounted unstable, were 229.119(a). producing'" track-mounting system, wear, conclude of § 229.119(a) at i n d i c a t i n g t h a t he was that of § we n e x t must d e t e r m i n e w h e t h e r to whether even Accordingly, "sag." seats that be s a i d t o h a v e b e e n " s e c u r e l y m o u n t e d a n d b r a c e d " a s by caused would to the were also shake. Kress, a occupationalthe seats used 1071507 by CSX were inappropriate aboard the locomotives exacerbated braced. recognized Kelley aboard t r a i n s such locomotive CSX Miller got seats between shock forces and that railroad disorders increase movement An aboard the work h i s t o r y disk i n 2001. with were disease. Initially, a t t h e e n d o f a r u n when he However, and p a i n the pain The n e c k began r a d i a t i n g that would exposed to the seats f o r c e s on t h e l o c o m o t i v e . 69 locomotives. the locomotives pain and r e s t e d . revealed to which r u n when he was a g a i n MRI work f o r the employee, neck became c o n s t a n t who loose aboard subside cervical that began would widely f o r c e s a r e more opined that Miller's experiencing and not exposed h i s degenerative on h i s n e x t arm. people Kelley forces conditions a personnel factors i n causing neck p a i n eventually than Dr. the shock to the traumatic right is trains. o f f the locomotive return and neck and h i s working Miller's there Dr. K e l l e y concluded significant n o t s e c u r e l y mounted that stated aboard to amplify Finally, were c o n d i t i o n s were f u r t h e r a n d who a r e e x p o s e d t o v i b r a t i n g to suffer forces tends He that conditions testified relationship degeneration. likely and t h a t those by cab s e a t s Dr. f o r the s h o c k - f i l l e d Miller pain down h i s suffered from 1071507 degenerative response nerve traumatic the to r e t i r e Dr. to disk Raymon the As disease, had vertebrae; he above, disk that stating aboard Dr. freight precipitated h i s symptoms" presentation began eventually tolerate contributes testified to the that once locomotives. trauma Raymon contributed specifically the the that degenerative Miller's trains working "aggravated or and symptoms." Viewing favorable would evidence, to Miller, have conclude the been that a of § violation slightest'" and " c o n t r i b u t e d a and t h e again Miller repetitive disease. conditions aboard while good however, to the seats locomotives stated a t o decompress f r o m CSX b e c a u s e he c o u l d no l o n g e r testified working conditions aboard he e x p e r i e n c e d degenerative Miller's b y D r . Raymon the c e r v i c a l symptoms. neck p a i n initially t o w o r k a n d was e x p o s e d forces experiencing Miller performed and t o fuse returned decided disease. to surgery root Miller disk and d r a w i n g free jury as to draw, question 229.119(a) i n producing we must, such in existed & as Reed, light "'any part, most as t h e j u r y supra, t o whether M i l l e r ' s neck i n j u r y . 70 a inferences Waddell played to h i s c l i n i c a l we CSX's even Gottshall, the 512 1071507 U.S. not a t 5 4 3 . We therefore e r r i n denying CSX's conclude motion VI. the Louisville 867 on the t r i a l i n favor of the court element refusing to JML. of erred i n refusing to foreseeability. court entered the p l a i n t i f f charge the a j u d g m e n t on t h e j u r y ' s on that the t r i a l jury on the claim. The court erred element L i k e CSX case, the r a i l r o a d in on G a l l i c k v . B a l t i m o r e & O h i o R.R., 108 (1963), "essential which element" foreseeability Court on the that reasonable in a FELA concluded element negligence charge This of that employer 372 case. Acknowledging Gallick claim, encompasses the element this d i d not r e q u i r e f o r e s e e a b i l i t y because a a proper of f o r e s e e a b i l i t y . "The [ U n i t e d S t a t e s ] S u p r e m e C o u r t [ i n G a l l i c k ] thus p r o p e r l y defined negligence and admeasurement of the duty of the defendant i n terms of a c t s or omissions of the reasonably prudent person under 71 U.S. that stated: Court of f o r e s e e a b i l i t y i s an i s an e l e m e n t o f a FELA n e g l i g e n c e nevertheless charge held i n this h i s FELA foreseeability. Dollar relied In v . D o l l a r , 294 A l a . 2 7 6 , 314 S o . 2 d r a i l r o a d employer appealed, arguing in court d i d Foreseeability & N o r t h e r n R.R. (1975), verdict jury the t r i a l for a preverdict CSX n e x t a r g u e s t h a t t h e t r i a l instruct that 1071507 like circumstances. Such definition and admeasurement o f duty encompasses t h e elements o f foreseeability without the use of the words ' a n t i c i p a t e ' or 'foreseeable.' This i s also true of the f o l l o w i n g o r a l charge, g i v e n by t h e t r i a l c o u r t in t h i s case: "'... Well, negligence i s simply the failure to use due care under the c i r c u m s t a n c e s . Now, t h e l a w s a y s a p e r s o n i s n e g l i g e n t i f he d o e s s o m e t h i n g that a reasonable prudent person would not o r d i n a r i l y do u n d e r t h e same o r s i m i l a r circumstances, or that a person i s n e g l i g e n t i f he f a i l s t o do t h a t w h i c h a r e a s o n a b l e p r u d e n t p e r s o n w o u l d do u n d e r t h e same o r s i m i l a r c i r c u m s t a n c e s . S o , I would say t o you i n t h i s case t h a t t h e g i s t of this case really i s a question of negligence. I f there's no negligence, then, of c o u r s e , t h e P l a i n t i f f would have no r i g h t t o r e c o v e r . ...'" 294 A l a . a t 2 8 0 , 314 S o . 2 d a t 8 7 0 . The follows trial court i n this charged the jury on negligence as case: "Now, I u s e d t h e t e r m ' n e g l i g e n c e , ' L a d i e s a n d Gentlemen, and n e g l i g e n c e s i m p l y i s t h e f a i l u r e t o use r e a s o n a b l e c a r e . R e a s o n a b l e c a r e i s t h a t d e g r e e of c a r e t h a t a r e a s o n a b l y c a r e f u l p e r s o n w o u l d use under l i k e c i r c u m s t a n c e s . N e g l i g e n c e may c o n s i s t i n doing something that a reasonably careful person w o u l d n o t do u n d e r t h e c i r c u m s t a n c e s o r i n f a i l i n g t o do s o m e t h i n g that a reasonably careful person w o u l d do u n d e r l i k e c i r c u m s t a n c e s . " The jury similar charge on n e g l i g e n c e to the negligence i n this charge 72 given case i s substantially i n Dollar; therefore, 1071507 it adequately Accordingly, refusing encompasses we to conclude give next reversible that element trial court charges Miscellaneous contends of on the CSX's r e q u e s t e d VII. CSX the that Jury the e r r o r i n s e v e r a l of foreseeability. d i d not err in foreseeability. Charges trial i t s other court committed instructions to the jury. First, to CSX argues instruct the jury employees with available and to use the t h a t CSX latest, trial was not best, or court erred trial the most perfect t h a t i t s h o u l d n o t be h e l d l i a b l e plaintiff court had a substantially reasonably gave in failing r e q u i r e d to f u r n i s h i t s this safe equipment for continuing e q u i p m e n t a f t e r l a t e r i m p r o v e m e n t s had been provided The the that discovered, place charge, to work. stating: "The extent of the Defendant's duty was to e x e r c i s e reasonable care under the circumstances at the time and place in question to provide the P l a i n t i f f a r e a s o n a b l y s a f e p l a c e to work. "Now, u n d e r the law the D e f e n d a n t had a d u t y t o use r e a s o n a b l e care to p r o v i d e the P l a i n t i f f with r e a s o n a b l y s a f e and s u i t a b l e t o o l s , a p p l i a n c e s and machinery with which he was to do his work. Appliances, i n order t o be reasonably safe and s u i t a b l e , n e e d n o t n e c e s s a r i l y be t h e l a t e s t o r t h e b e s t w h i c h c o u l d h a v e b e e n p r o v i d e d t o do t h e w o r k . " Consequently, we find no e r r o r as 73 to this claim. 1071507 N e x t , CSX a r g u e s t h a t t h e t r i a l instruct of the jury that Miller i t was n o t t o r e t u r n simply because instructed the jury as court erred i n f a i l i n g to a verdict he h a d b e e n i n j u r e d . i n favor The t r i a l follows: "[I]n o r d e r t o r e c o v e r under [ t h e FELA n e g l i g e n c e c l a i m ] , t h e p l a i n t i f f must p r o v e by a p r e p o n d e r a n c e o f t h e e v i d e n c e t h e f o l l o w i n g : N u m b e r 1, t h a t t h e Defendant was n e g l i g e n t i n one o r more o f t h e particulars claims. And Number 2, that the Defendant's n e g l i g e n c e p r o x i m a t e l y caused i n whole or i n part some injury and consequent damages s u s t a i n e d by t h e p l a i n t i f f [ I ] f you a r e n o t s a t i s f i e d from t h e e v i d e n c e o r t h e P l a i n t i f f has not met h i s b u r d e n b y a p r e p o n d e r a n c e o f t h e e v i d e n c e , that the n e g l i g e n c e of the Defendant proximately caused i n whole or i n part some injury and consequent damage to the P l a i n t i f f , then your v e r d i c t s h o u l d be f o r t h e D e f e n d a n t . fl "The D e f e n d a n t , h o w e v e r , was n o t a g u a r a n t o r o r insurer of the safety of the workplace. The e x t e n t o f t h e D e f e n d a n t ' s d u t y was t o e x e r c i s e r e a s o n a b l e c a r e under t h e c i r c u m s t a n c e s a t t h e time and p l a c e in question to provide the P l a i n t i f f a reasonably s a f e p l a c e t o work. fl " I f ... t h e p r e p o n d e r a n c e o f t h e e v i d e n c e d o e s not s u p p o r t t h e P l a i n t i f f ' s c l a i m u n d e r t h e FELA f o r negligence, then your v e r d i c t would be f o r t h e Defendant on this claim then you s h o u l d next c o n s i d e r the P l a i n t i f f ' s c l a i m under the Locomotive Inspection Act. fl 74 court 1071507 " I f you s h o u l d f i n d f r o m a p r e p o n d e r a n c e o f t h e evidence that the Defendant did violate the p r o v i s i o n s of the L o c o m o t i v e I n s p e c t i o n Act or [§ 2 2 9 . 1 1 9 ( a ) ] as a l l e g e d b y t h e P l a i n t i f f , a n d that t h e v i o l a t i o n was a p r o x i m a t e cause i n whole or i n part in bringing about or a c t u a l l y causing the P l a i n t i f f ' s i n j u r i e s , then the P l a i n t i f f i s e n t i t l e d to recover f r o m t h e D e f e n d a n t t h o s e damages w h i c h you f i n d f r o m a p r e p o n d e r a n c e o f t h e e v i d e n c e t h a t t h e P l a i n t i f f a c t u a l l y s u s t a i n e d as a r e s u l t o f t h a t v i o l a t i o n without any r e q u i r e m e n t o f a s h o w i n g o f n e g l i g e n c e on p a r t o f t h e D e f e n d a n t . " The trial court requested a the verdict in favor The trial that unless evidence his liability trial i t was that Miller not a a give claim because the Therefore, we find the trial his no the jury could verdict and CSX's from he not was j u r y made i t in favor of of the preponderance negligence claim. the simply render by to clear i n s t r u c t i o n to established FELA refusing court of court's i t could he in because by clear Miller err given injured. very not instruction, instruction render did FELA error absolute- as to this claim. Finally, CSX argues a p o r t i o n of M i l l e r ' s is Alabama Pattern that requested Jury Instructions: no. Specifically, trial e r r e d i n i n s t r u c t i n g the 75 erred in giving j u r y i n s t r u c t i o n no. instruction court 17.02. court Civil CSX 10, which ("A.P.J.I."), contends jury regarding that the the nature 1071507 of CSX's d u t y by e l e c t i n g its charge, n o t t o do be d e s p i t e the A.P.J.I. committee's so: " T h i s d u t y i s a b s o l u t e and d e l e g a t e d by The to i n c l u d e the f o l l o w i n g sentence the defendant Committee's Notes on Use to of t h i s recommendation c o n t i n u o u s and another." in cannot A.P.J.I. sentence 17.02. state: "The Committee does not recommend t h a t the sentence which i s i n brackets which reads, 'This duty i s a b s o l u t e and continuous and cannot be delegated by the defendant to another' be used except in those cases where a contention or s u g g e s t i o n i s made t h a t t h e d u t y t o m a i n t a i n t h e t r a c k s or t h e e q u i p m e n t has been d e l e g a t e d t o a t h i r d p a r t y , s u c h as a s i d i n g s i t u a t i o n . " Committee Notes Miller on Use, that argues A.P.J.I. CSX opened the door continuously arguing throughout u n i o n was CSX used with the t r i a l to t h i s charge that M i l l e r ' s and that statement allegedly CSX caused informed the Miller's jury injury. during We that agree i t s opening t h a t m e m b e r s o f t h e u n i o n w e r e on t h e c o m m i t t e e recommended the seats Throughout the that members had union i n the questioning course Miller of the been locomotives. based on CSX's alleged trial CSX involved Miller caused his sought to in selecting o b j e c t e d to nondelegable 76 duty by trade u l t i m a t e l y r e s p o n s i b l e f o r the locomotive seats Miller. placed 17.02. that injury. establish the seats this line of of care to 1071507 provide CSX a safe workplace. sought Miller an charge court instruction conference." At the referring nondelegable. trial CSX's B a s e d on court relating to erred in trial to litigated. have See Rivers, jury trial reasons CSX's charge conference, to g i v i n g as that that portion being on trial of absolute cannot portion charged the the the the and say t h a t of at the charge A party i s issues being supra. VIII. the on "[W]e'll deal with that t h e f o r e g o i n g , we the directing of q u e s t i o n i n g based duty giving objection, court t o CSX's d u t y o f c a r e b e i n g n o n d e l e g a b l e . entitled For to M i l l e r ' s the duty of care, s t a t i n g : o v e r r u l e d CSX's o b j e c t i o n charge the from not to o b j e c t to the l i n e nondelegable the In response Conclusion stated above, we Lyons, Woodall, affirm the judgment of court. AFFIRMED. Cobb, and C.J., and Smith, Parker, i n p a r t and concurs Shaw, J J . , c o n c u r . Murdock, J . , concurs in Stuart, the i n the r a t i o n a l e result. 77 1071507 MURDOCK, Justice concurring I of i n the fully the (concurring in i n the issues jury main I.B. Inc. ("CSX"), as t o t h e i s s u e discussion requested by in charges in two: by the CSX part and I.C. of these the two treatment analysis in Transportation, of apportionment Part to save requested As CSX. opinion's thorough presented, Part the of rationale result). concur numerous the o f damages special-verdict issues, I concur and form in the result. As no. to the 41, which jury-charge the apportionment trial when issue, court the trial no. 40, court, employer's combine first opinion to notes, contemplates other cause non-work-related (summarizing injury apportionment the dealt with aggravate to were n o t g i v e n by different: matters " i t appears charge an CSX's r e q u e s t e d c h a r g e s no. deal w i t h something non-work-related gave, actions the e q u i v a l e n t of which where b o t h requested essentially employee's p r e e x i s t i n g i n j u r y . through CSX's and the well the work-related matters settled causes." So. v. As that among an e m p l o y e r ' s 78 the circumstance employee. holding in Lancaster 38 the the negligence 3d Norfolk main FELA and at & Western 1071507 Ry., 773 F.2d 807 apportionment (7th Cir. 1 985), instruction was existed that p l a i n t i f f a condition notwithstanding , and F.3d a the (10th instruction likelihood suffered the the accident Thus, writing, trial may that injury not as the due the employee a f o r the The at R.R., 106 the by jury to reduce would damages eventually preexisting condition So. issue 3d at I discuss to have g i v e n fact that one o r more have even had ). at the that was none of given by these the end of this c h a r g e s were requested t o be by CSX given, not charges instruction court 39 alone of of them. by whatever the to i t s charge does not m a t t e r . in lieu the included in relation i n a d d i t i o n to 79 no. 38-40 r e q u e s t e d requested trial preexisting-injury-apportionment were (charge of charges nos. "if-you-cannot-separate-the-cause" charges 3d I b e l i e v e i t would have been r e v e r s i b l e e r r o r f o r c o u r t not nature So. on occurred," i f not by suffered, negligence," employee to the a f f i r m i n g a judgment based "directing have been a p p r o p r i a t e ) CSX. an C i r . 1997), an would have been i n j u r e d which defendant's that where t h e h o l d i n g i n S a u e r v. B u r l i n g t o n N o r t h e r n 1490 jury the from "recognizing appropriate probability latent as The other 1071507 Also, believe as t o t h e s p e c i a l - v e r d i c t q u e s t i o n s no. opinion, are shortcomings Southern well 8 and worded from which Ry. v. no. 9, and form proposed as d e s c r i b e d do not q u e s t i o n s no. Bradley, 772 2d I i n the main from the suffer 6 and no. So. b y CSX, 7 i n Norfolk 1147 (Ala. 2000), suffered. N o t w i t h s t a n d i n g t h e a b o v e - e x p r e s s e d c o n c e r n s , as t h e m a i n opinion notes, those i n j u r i e s "where the f a c t - f i n d e r i s unable to separate c a u s e d o r e x a c e r b a t e d by t h e w o r k p l a c e accident from those i n j u r i e s r e s u l t i n g from p r e e x i s t i n g c o n d i t i o n s , the defendant (citing (1st it is liable Stevens for a l l injuries." v. Bangor C i r . 1996)). & A r o o s t o o k R.R., A l t h o u g h , as t h e m a i n i s not necessary to prove with "mathematical attribution certainty," evidence between the I see presented to the j u r y various employer's negligence Inspection A c t , on history of and on no hand, other 80 at 594, 603 also notes, to d i f f e r e n t causes basis of the causes, and 3d F.3d opinion i t s violation the 97 f o r i t t o make concurring t h e one smoking, So. of i n any an allocation including the Locomotive the employee's hand. The the law age and allows 1071507 attribution concur based i n the on e v i d e n c e , not result. 81 speculation. I therefore

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