THOMAS M. LEONARD 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NOT FOR PUBLICATION WITHOUT THE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

THOMAS M. LEONARD,

Plaintiff-Appellant,

v.

PORT AUTHORITY TRANS-HUDSON

CORPORATION,

Defendant-Respondent.

_______________________________

October 1, 2014

Submitted September 10, 2014 Decided

Before Judges Ashrafi, Kennedy and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0401-10.

Law Office of Thomas J. Joyce, III, attorney for appellant (Mr. Joyce, on the brief).

Margaret Taylor Finucane, New Jersey
Solicitor, attorney for respondent (Thomas R. Brophy, of counsel and on the brief).

PER CURIAM

A jury found defendant Port Authority Trans-Hudson Corporation (PATH) had not been negligent in this personal injury action plaintiff Thomas M. Leonard brought under the Federal Employer's Liability Act (FELA).1 45 U.S.C.A. 51 to 60. Plaintiff appeals the denial of his motion for a new trial or judgment notwithstanding the verdict. For the reasons that follow, we affirm.

I

A FELA action brought in state court is governed by federal law on both liability and damages. Donovan v. Port Authority Trans-Hudson Corp., 309 N.J. Super.340, 348 (App. Div. 1998) (quoting Pelliccioni v. Schuyler Packing Co., 140 N.J. Super. 190, 193 (App. Div. 1976)), certif. denied, 157 N.J.542 (1998). Plaintiff alleges defendant violated FELA by negligently failing to provide him with a reasonably safe workplace. See45 U.S.C.A. 51. FELA provides in pertinent part

Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its . . . works . . . .

[Id.]

The pertinent evidence is as follows. On January 26, 2007, plaintiff was employed by defendant as a car inspector. While working in the PATH station in Harrison, plaintiff fell and injured his back and ribs. Specifically, he claims that, after descending a flight of stairs, he continued to hold onto the handrail, which extended approximately two feet from the last step. At the end of the handrail was a column that stood about one inch from the left side of the handrail. Plaintiff claims that as he moved his hand along the handrail, it became wedged between the handrail and the column. When he pulled his hand out, he lost his balance and fell. During cross-examination, plaintiff admitted he told others he was injured as a result of falling down the stairs.

In support of his claim that defendant was negligent, plaintiff called an engineer as an expert witness, who testified that an Occupational Safety and Health Administration (OSHA) regulation2requires that there be a distance of at least three inches between a "stairway handrail" (handrail) and any other object. The space between the handrail and the column where plaintiff's hand became stuck measured five-eighths of an inch, which plaintiff's expert found was not only a violation of the OSHA regulation but also a "dangerous situation."

Plaintiff's expert conceded that OSHA does not require a handrail to extend more than eleven-and-a-half inches beyond the last stair and that, here, the column and the handrail intersected twenty-three inches beyond that point. He further admitted that while a handrail is necessary for safety on a staircase, one is not required on flat ground. Nevertheless, plaintiff's expert maintained that the OSHA regulation governed the spot where plaintiff's hand got stuck between the handrail and column.

Defendant's expert engineer disagreed PATH violated the subject OSHA regulation, claiming such regulation applied only to stairway handrails, which by definition do not extend beyond a stairway. The expert explained that the primary purpose of a stairway handrail is to provide a handhold in the event one loses his balance or footing on a stair. The subject OSHA regulation, which mandates a three-inch "finger clearance," was adopted to prevent objects from getting too close to a handrail and thus impairing its usefulness. Once a person steps off a staircase and is on horizontal ground, the need for a handrail disappears.

The defendant's expert further noted that, once a handrail is above a horizontal surface, it is called a "fence" or "barrier," and is governed by OSHA regulations different from those that pertain to stairways and handrails. Therefore, the subject OSHA regulation does not apply to fences. The expert pointed out that, although not required by any law, defendant elected to extend the fence to the column, a common practice within the transit industry, to prevent pedestrians from squeezing between the staircase and the column. However, the fence did not violate any OSHA regulation or state code, and the area between the fence and the column was not a dangerous condition. Defendant's expert also opined that plaintiff could not have caught his hand in the manner alleged.

II

On appeal, plaintiff claims the court ruled as a matter of law before trial that the subject OSHA regulation encompassed and controlled the area where plaintiff caught his hand. Therefore, plaintiff argues, the question whether the OSHA regulation applied should not have been submitted to the jury. We disagree.

First, the court did not rule that the subject OSHA regulation applied in this case. Before trial, defendant filed a motion in limine seeking a ruling that the spot where plaintiff caught his hand was not a part of the stairway or handrail and thus not governed by the subject OSHA regulation. Based upon its review of a photograph, the trial court did conclude that the area was part of the staircase. The court stated that where plaintiff caught his hand

would be considered part of the staircase, because it's impossible for somebody to get on and off the staircase without traversing that area. And just the fact that the railing continued beyond the bottom of the stairs would lend credence to that interpretation.

So based on my interpretation of the photograph, I disagree with defense counsel's argument that the area in question is not part of the staircase.

The trial court's analysis and findings, however, were not based upon the subject OSHA regulation or any other law, for that matter. The court merely viewed a photograph of the staircase and the area where plaintiff caught his hand, and concluded that the area was a part of the staircase. That the court intentionally declined to rule on the applicability of the OSHA regulation is evident from its comments during the motion for a new trial or judgment notwithstanding the verdict. The court stated

I allowed into the trial evidence of an OSHA regulation. There was plaintiff's expert; there was [defendant's] expert. Those experts disagreed.

There was an issue as to whether or not OSHA was applicable because plaintiff's contention was that the area where the accident took place was part of the stairway. The defense position was that the area where the accident took place was not part of the stairway, but instead was a fence barrier and was several feet beyond the bottom of the staircase. So it was not clear at the early stages of the trial whether or not OSHA was even applicable or not, so I ruled at that point that the evidence of [an] OSHA violation should come into the trial and should be an issue that was left to the jury.

Second, inconsistent with his assertion the trial court made a dispositive ruling the OSHA regulation applied, plaintiff elicited from his expert the opinion that the subject OSHA regulation applied, and failed to object when defendant's expert engineer testified about the same issue. We conclude the trial court made no ruling that the OSHA regulation governed the area where the incident occurred. Thus, it was appropriate for the jury to consider both experts' testimony on the applicability of the subject OSHA regulation and decide which expert was the more credible on this issue.

Plaintiff also argues on appeal that the evidence clearly showed defendant violated the OSHA regulation and, therefore, the verdict was against the weight of the evidence. Plaintiff does not address the evidence to the contrary provided by defendant's expert.

As noted, federal law governs a FELA action, including a determination of whether a verdict is contrary to the weight of the evidence. Kapsis v. Port Authority of N.Y. & N.J., 313 N.J. Super.395, 402 (App. Div.), certif. denied, 157 N.J.544 (1998); Pressler & Verniero, Current N.J. Court Rules, comment 1.6 on R.4:49-1 (2014). When examining the denial of a motion for a new trial under federal law, a reviewing court applies the abuse of discretion standard, seeSpringer v. Henry, 435 F.3d 268, 274 (3d Cir. 2006), and the evidence is viewed in the light most favorable to the party for whom the verdict was returned. Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652, 656 (3d Cir. 1989). A new trial should be granted "only where the 'great weight' of the evidence cuts against the verdict and 'where a miscarriage of justice would result if the verdict were to stand.'" Springer, supra, 435 F.3d at 274 (quoting Sheridan v. E. I. Dupont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996) (en banc)). In order for a motion for a new trial to be granted on the grounds the verdict was against the weight of the evidence, the record must show that the jury's verdict "cries out to be overturned or shocks [the] conscience." Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991). However, a court must not substitute its "judgment of the facts and the credibility of the witnesses for that of the jury." Lind v. Schenley Indus. Inc., 278 F.2d 79, 90 (3d Cir.) (en banc), cert. denied, 364 U.S. 835, 5 L. Ed. 2d 60, 81 S. Ct. 58 (1960).

Here, the evidence fails to "cut against the verdict." Plaintiff contended defendant violated the OSHA regulation because the distance between the handrail and the column was less than three inches. Defendant's expert testified the regulation did not apply because the spot where plaintiff caught his hand was not a handrail but a fence, that plaintiff's hand could not have become trapped in the manner he alleged, and that the condition was not dangerous. The jury was free to weigh the credibility of the experts and find, consistent with defendant's expert's testimony, that defendant had not been negligent or that the plaintiff had not been injured as a result of getting his hand caught. The jury's verdict neither cries out to be overturned nor shocks the conscience and, accordingly, the trial court did not abuse its discretion by denying the motion for a new trial.

After carefully considering the record and the briefs, we conclude plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed.

1State and federal courts are vested with concurrent jurisdiction to hear FELA cases. 45 U.S.C.A. 56.

2 Although the citation to the regulation was not specifically mentioned during the expert's testimony, it was undisputed the expert was referring to 29 C.F.R. 1910.23(e)(6).