COOKE V. CSX CORP.
TORTS: FELA CLAIM and substantial factor vs. substantial cause
NOT PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: HOWARD PRESIDING; NICKELL, TAYLOR CONCUR
DATE RENDERED: 12/07/2007
Cooke appeals a jury verdict in favor of CSX on his FELA claim stemming from alleged injuries he sustained on two separate occasions while on the job with CSX. Specifically, Cooke alleged that CSX failed to provide adequate lighting in his work area (paint shop) and wrongfully assigned him to perform a job by himself that safely required two employees to complete. Cooke alleged three errors by the TC, each of which was addressed by the COA as follows:
1) Cooke claims error in the language contained in the TC’s liability instruction that read, "Do you believe from the evidence that CSX failed to exercise that care required of it, and that failure, no matter how slight, was a substantial factor in causing injury to the Plaintiff? Cooke contends that the wording does not comport with the model instruction set forth by the Kentucky Supreme Court in Hamilton v. CSX Transportation, 208 S.W.3d 272 (Ky. 2006), which disapproved of the use of "substantial cause" because it placed a higher common law burden on the plaintiff instead of the lower "in whole or in part" FELA burden.
The COA agreed, finding error in the TC’s use of "substantial factor" in light of Hamilton and its error in failing to include acceptable causation language such as "caused in whole or in part" or "played any part, even the slightest." The COA did point out that this trial occurred before the Hamilton decision was rendered. The COA then rejected CSX’s argument that Cooke had failed to preserve this argument for appeal by the failure to object to the instruction when both attorneys were asked by the TC during trial. The COA analyzed CR 51(3) and felt that Cooke’s tender of a jury instruction that avoided the above-cited error preserved the issue for appeal, and did not feel that later statements made by Cooke’s attorney on the record qualified as a clear waiver. The COA therefore ordered reversal of the judgment entered against Cooke on this issue alone.
2) Cooke secondly assigns error to the TC’s exclusion of testimony from a rebuttal witness, Hughes, who previously worked for CSX in the same paint shop where Cooke alleged he suffered injury but only after the date of injury. On avowal, Hughes proposed to offer testimony contradictory to testimony of a CSX witness that the lighting in the paint shop as shown in a video taken almost a year after the injury date fairly and accurately depicted the lighting conditions at the time of the earlier Cooke injury date. The TC had excluded the testimony since Hughes had no personal knowledge of the lighting in the shop at the time of injury before the date of his hire.
The COA noted that Hughes’ avowal testimony stated his belief that the lighting was insufficient at the time of his hire, that he complained about it to CSX, and that CSX later installed additional lighting making the paint shop brighter before the video was taken. While the COA did not believe the TC’s exclusion of his testimony was an abuse of discretion that alone would warrant a new trial, it nevertheless ruled that Hughes should be permitted to testify at the new trial as ordered above.
3) Cooke’s final argument on appeal was that the TC erred in directing a verdict on his claim that CSX failed to provide adequate assistance for his job duties by requiring him to paint rail cars at the same pace as that previously performed by two employees together. TC felt that Cooke had failed to offer any evidence to warrant the claim going forward to the jury.
The COA agreed with the TC, noting that Cooke offered no expert testimony to support this theory and pointing out that his argument ignores the undisputed evidence that at the time of the alleged injuries, the number of cars painted per shift was only one-half the number painted when two persons previously performed the job duties.