PATRICK CASHMAN v. PORT AUTHORITY TRANS-HUDSON CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PATRICK CASHMAN,

Plaintiff-Respondent,

v.

PORT AUTHORITY TRANS-HUDSON

CORPORATION,

Defendant-Appellant.

_________________________________

Submitted May 7, 2013 Decided

Before Judges Yannotti and Harris

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4576-10.

Margaret Taylor Finucane, New Jersey Solicitor (Port Authority of New York and New Jersey), attorney for appellant (Benjamin S. Noren and Thomas R. Brophy, of counsel and on the brief).

Thomas J. Joyce, III, attorney for respondent.

PER CURIAM

Following a jury trial in which plaintiff Patrick Cashman was awarded $57,557.76, defendant Port Authority Trans-Hudson Corporation moved to mold the verdict to $19,310.68 in order to reflect the jury's apportionment of fault pursuant to the

Federal Employer's Liability Act (FELA). 45 U.S.C.A. 51-60; see also Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 527 (App. Div.), certif. denied, 180 N.J. 355 (2004) (noting the contours of FELA, "which permits railroad workers to recover for injuries suffered on the job in specified circumstances"). The trial court partially acceded to defendant's application by reducing the verdict to $29,557.76, and memorializing it in the August 1, 2012 order that is the subject of this appeal. We reverse and remand for the entry of a modified judgment in plaintiff's favor for $19,310.68.

I.

The specific details of plaintiff's claims against his employer are not germane to the present appeal. Suffice it to say that while employed by defendant, plaintiff was injured on the job on March 19, 2009, and again on November 18, 2009. In August 2010, plaintiff filed the present FELA personal injury action, which sought compensation for economic and noneconomic damages.

A three-day jury trial was conducted in June 2012. Pursuant to a detailed Jury Verdict Sheet, the jury reported its fault allocation regarding the March 2009 incident as seventy-five percent attributable to defendant and twenty-five percent attributable to plaintiff. The jury awarded $4540.80 as damages

for plaintiff's "lost overtime pay" caused by that incident, but refused to award damages for plaintiff's "pain, suffering, disability, impairment and loss of enjoyment of life." Turning to the November 2009 incident, the jury found plaintiff seventy percent responsible and defendant thirty percent responsible. The jury awarded $13,016.96 in damages for "lost overtime pay from the November 18, 2009 injury," and $40,000 for pain and suffering caused by the same injury.

The aggregate damage award for both incidents, before application of fault allocation principles, was $57,557.76. Defendant asked the trial court to mold the verdict to $19,310.68 by applying the applicable fault percentages to the reported amounts on the Jury Verdict Sheet, as follows:

Lost overtime pay for March 2009 injury:

($4,540.80) X (75%) = $3,405.60

Lost overtime pay for November 2009 injury:

($13,016.96) X (30%) = $3,905.08

Pain and suffering for November 2009 injury:

($40,000.00) X (30%) = $12,000.00

TOTAL: $19,310.68

Instead, the trial court only reduced the November 2009 pain and suffering award by seventy percent, but refused to adjust either of the lost overtime pay awards. Adding each of the lost overtime pay awards to the net award for pain and suffering yielded $29,557.76, as follows:

Lost overtime pay for March 2009 injury:

($4,540.80) X (100%) = $4,540.80

Lost overtime pay for November 2009 injury:

($13,016.96) X (100%) = $13,016.96

Pain and suffering for November 2009 injury:

($40,000.00) X (30%) = $12,000.00

TOTAL: $29,557.76

The final judgment in favor of plaintiff, entered on August 1, 2012, reflected $29,557.76. This appeal, which challenges only the molding of the verdict, followed.

II.

A.

The FELA is the exclusive remedy available to injured railroad employees. 45 U.S.C.A. 51; Kotler v. Nat'l R.R. Passenger Corp., 402 N.J. Super. 372, 377 (App. Div. 2008). State courts are vested with concurrent jurisdiction with the federal courts to hear FELA cases. 45 U.S.C.A. 56; Kotler, supra, 402 N.J. Super. at 377.

The FELA may be characterized as remedial, Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 329-30, 78 S. Ct. 758, 762, 2 L. Ed. 2d 799, 802-03 (1958), and humanitarian in nature. Urie v. Thompson, 337 U.S. 163, 180-81, 69 S. Ct. 1018, 1030, 93 L. Ed. 1282, 1298 (1949). The general congressional intent in enacting the FELA was "to provide liberal recovery for

injured workers" and a flexible remedy to meet the changing conditions affecting the railroad industry's duty towards its workers. Kernan v. Am. Dredging Co., 355 U.S. 426, 432, 78 S. Ct. 394, 398, 2 L. Ed. 2d 382, 388 (1958). The FELA seeks to adjust the cost of injury equitably between employee and employer, Sinkler, supra, 356 U.S. at 329-30, 78 S. Ct. at 762, 2 L. Ed. 2d at 803, to stimulate railroad companies to take measures for the prevention of injury to their employees, Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S. Ct. 440, 442, 74 L. Ed. 1082, 1085 (1930), to protect the health of employees, Urie, supra, 337 U.S. at 191, 69 S. Ct. at 1035, 93 L. Ed. at 1304, and to promote the public interest. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Rock, 279 U.S. 410, 413, 49 S. Ct. 363, 365, 73 L. Ed. 766, 769 (1929). The FELA is to be construed liberally so that the primary purpose of the legislation may be more readily effectuated. Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562, 107 S. Ct. 1410, 1414, 94 L. Ed. 2d 563, 571 (1987).

Among the provisions designed to fulfill the FELA's lofty goals, Congress enacted 45 U.S.C.A. 53, which provides as follows:

In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to

an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.

Generally, then, the FELA is a pure comparative negligence statute, which differs significantly from New Jersey's comparative negligence statute, N.J.S.A. 2A:15-5.1 to 5.8, in that it provides for a plaintiff's recovery, if defendant is found to have been negligent, regardless of the amount of plaintiff's negligence, if any.

B.

It is well established that "[a] verdict may be molded in consonance with the plainly manifested intention of the jury, and judgment entered accordingly." Turon v. J & L Constr. Co., 8 N.J. 543, 552 (1952). The Supreme Court has held that

deference to a jury's findings is reflected also in the general rule that a trial court may not mold a jury verdict according to its perception of the jury's view. A verdict may be molded in consonance with the plainly manifested intention of the jury, but such a determination is best performed in the presence of the jurors and with their consent. Moreover, molding a verdict is most appropriate when it pertains to form rather than substance. Once the jury is
 
 
 
 

 
 
discharged, both trial and appellate courts are generally bound to respect its decision, lest they act as an additional and decisive juror.

[Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135-36 (1990) (citations and internal quotation marks omitted).]

In refusing to adjust the lost overtime pay awards by plaintiff's applicable percentage of fault, the trial court determined that it was clear "that the jur[ors] had taken it upon themselves to reduce plaintiff's overtime award for both incidents by twenty percent." Furthermore, according to the trial court, because the jury had asked a question whether "damages awarded for pain and suffering [would] be reduced by plaintiff's negligence," the jury's question "indicated that the jury had already determined what action to take regarding plaintiff's overtime." Neither of these reasons satisfy the "plainly manifested intention of the jury" standard of Kassick, and we are constrained to reverse.

C.

Plaintiff presented evidence at trial that because of the March incident, "it looks like [he had] an overtime figure of about $5,676." When asked whether his lost overtime caused by the November incident was $16,271.20, plaintiff responded, "That sounds right, yes." Arithmetically, a twenty percent reduction

in each claim yields $4,540.80 and $13,016.96, which correspond exactly with the Jury Verdict Sheet. However, the twenty percent reduction does not correspond to anything else in the case, and is more likely to bespeak weaknesses in plaintiff's lost overtime pay claims, particularly in light of defendant's challenge to them.

For example, during plaintiff's cross-examination, he admitted that he did not always work overtime just because it was offered. "Once in a while," he conceded, he would decline overtime so that he could coach a softball team. Also, plaintiff admitted that if he were offered an overtime opportunity during a holiday season, he "[s]ometimes . . . would turn it down." Additionally, plaintiff's witness Joseph Dominiczak, General President of the Railway Independent Transit Union, testified that "[t]here's no guarantee that there's overtime," and there was no certainty that plaintiff would have taken all overtime opportunities, although "he did work most of the overtime."

Given the vagaries of available overtime and the uncertainty surrounding the amount of plaintiff's lost overtime claims, the jury's reduction of each claim to eighty percent does no more than indicate that the jury assessed all of the proofs before awarding damages. The reduction does not connote

the jury's application of a comparative fault factor, which would then, somehow, become immune to the application of conventional comparative negligence principles under the FELA. The best evidence of the lack of a fault-based determination on the lost overtime claims is that the reduction for both incidents is identical, but the jury's assessment of comparative fault varied widely between the March and November incidents. Clearly, the jury was not pre-molding the awards on its own to comport with the FELA.

Moreover, the jury was fully instructed regarding FELA's comparative fault principles. Nothing was stated to the jury that could remotely be construed as authorization to engage in the reduction of a lost overtime pay claim based upon relative fault. To the contrary, had jurors engaged in such ad hoc verdict gerrymandering, they would have violated their oath to follow the law. It is presumed that the jury understood and followed the trial court's instructions. State v. Nelson, 173 N.J. 417, 478 (2002).

We also do not consider the questions posed by the jury to be supportive of the trial court's conclusions. According to the trial transcript, after approximately ninety minutes of deliberation, the jury sent the trial court the following question: "Will the awarded damages be reduced by the percentage

of plaintiff's negligence?" The court properly responded, in writing, "Yes." Five minutes later, the jury asked another question, this one concerning medical treatment options for plaintiff's injured left elbow, which the court rightly answered. Shortly thereafter, the jury propounded a third question, asking: "Will pain and suffering also be subject to the liability percentages?" The court responded, "[Y]es. That gets molded. . . . So that percentage gets into consideration of once that award is made, that that's calculated later on." Within fifteen minutes thereafter, the jury notified the court that it had reached a final verdict.

From the foregoing, it is plain to us that the jury's third question asking whether pain and suffering damages would also be subject to the liability percentages did not convey the jury's intention to stealthily apply a comparative fault percentage to the lost overtime pay awards. Rather, the jury operated under the unremarkable (and proper) assumption that for each monetary award, if any, that it made in favor of plaintiff, the court would later adjust the amount to account for plaintiff's comparative fault. Accordingly, the trial court's failure to mold the two lost overtime pay awards by the appropriate fault percentages was an abuse of discretion.

Reversed and remanded for the entry of a modified judgment in favor of plaintiff and against defendant for $19, 310.68.

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