6.7 FELA—Plaintiff’s Negligence—Reduction of Damages (45 U.S.C. § 53)

           If you decide that the plaintiff was negligent, and that the plaintiff’s negligence was a cause of [his] [her] injury you must then decide to what extent [his] [her] injury was caused by the plaintiff’s negligence.  This should be fixed as a percentage—for example, 10%, 50%, 90%.  The percentage of the plaintiff’s negligence, if any, is for you to decide.  You must then write that percentage on the appropriate place on the verdict form.  Do not make any reduction in the amount of damages that you award to the plaintiff.  I will reduce the damages that you award by the percentage of negligence that you assign to the plaintiff. 

Comment 

              Under FELA, the same standard of causation applies to a plaintiff’s comparative negligence as to defendant’s negligence.  Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 171 (2007). 

            For a discussion applying the FELA comparative negligence doctrine in a Jones Act case, see Kopczynski v. The Jacqueline, 742 F.2d 555, 558 (9th Cir. 1984). 

            The traditional defense of assumption of risk is barred under FELA and cannot be revived in the form of comparative negligence.  See Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316-17 (9th Cir. 1986). 

            For an example of a verdict form for use in FELA cases, see below: 

SUGGESTED VERDICT FORM

1.         Do you find that the plaintiff has proved by a preponderance of the evidence: 

A.        That the defendant was negligent? 

                        Answer YES or NO              

            If you answered NO to Question No. 1.A., do not answer the remaining questions. Sign and date the verdict form and notify the bailiff.  If you answered YES to Question No. 1.A., proceed to Question No. 1.B. 

B.        That the defendant’s negligence was a cause of injury or damage to the plaintiff? 

                        Answer YES or NO          

            If you answered NO to Question No. 1.B., do not answer the remaining questions.  Sign and date the verdict form and notify the bailiff. If you answered YES to Question No. 1.B., proceed to Question No. 2.

2.         Do you find that the defendant has proved by a preponderance of the evidence: 

A.        That the plaintiff was also negligent? 

                        Answer YES or NO          

            If you answered NO to Question No. 2.A., proceed to Question No. 4.  If you answered YES to Question No. 2.A., proceed to Question No. 2.B. 

B.        That the plaintiff’s own negligence was a cause of the plaintiff’s injury or damage? 

                        Answer YES or NO         

            If you answered NO to Question No. 2.B., proceed to Question No. 4.  If you answered YES to Question No. 2.B., proceed to Question No. 3. 

3.         What proportion or percentage of the plaintiff’s injury or damage do you find by a preponderance of the evidence to have been caused by the negligence of the respective parties? 

                        Answer in Terms of Percentages 

                        The defendant          %

                        The plaintiff           %

                        Note: The total of the percentages given in your answer should equal 100%.

                        Proceed to Question No. 4. 

4.         If you answered YES to Question Nos. 1.A and 1.B, what sum of money do you find from a preponderance of the evidence to be the total amount of the plaintiff’s damages (do not reduce any amount by percentages found in Question No. 3)? 

(a)        Lost wages and benefits to date of trial          $       

(b)       Lost wages and benefits in the future [reduced to present value]         $       

(c)        Medical and hospital expenses incurred in the past      $       

(d)       Medical and hospital expenses likely to be incurred in the future [reduced to present value]            $       

(e)        Mental and emotional humiliation or pain and anguish            $       

(f)        Physical pain and suffering    $       

DATED:                                                                                                 

                                                                        PRESIDING JUROR