Salazar v. Continental Construction of Montana
Filing
349
ORDER denying 339 Motion for New Trial, signed by Magistrate Carolyn S Ostby on 4/16/2013. (HMM) Modified on 4/17/2013 to change to written opinion. (NOB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JUAN SALAZAR,
CV 11-16-BLG-CSO
Plaintiff,
ORDER
vs.
A&J CONSTRUCTION OF
MONTANA, INC.,
Defendant.
Pending is Plaintiff Juan Salazar’s (“Salazar”) Rule 59 Motion for
a New Trial. ECF 339.1 For the reasons set forth below, the Court will
deny Salazar’s motion.
I.
BACKGROUND
This case was tried before a jury during a six-day trial beginning
1
The ECF citation refers to the document as it is numbered in the
Court’s electronic filing system. Citations to page numbers refer to
those assigned by the ECF system.
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on January 22, 2013. ECF 309. On January 29, 2013, the jury
returned a verdict in favor of Defendant A&J Construction of Montana,
Inc. (“A&J”). ECF 326. Specifically, as to Question Number 1 on the
verdict form – “Was A&J negligent in the incident that occurred on
June 19, 2008?” – the jury answered “Yes.” ECF 326 at 1. To Question
Number 2 – “Was A&J’s negligence a cause of injury to Juan Salazar?”
– the jury answered “No.” Id. at 2. This answer to Question Number 2
ended the jury’s deliberations. Id.
The Clerk of Court entered judgment in favor of A&J on January
30, 2013. ECF 329. On February 27, 2013, Salazar timely filed the
pending motion for a new trial.
II.
PARTIES’ ARGUMENTS
Salazar’s motion for a new trial is based on his contention that
the verdict was against the clear weight of the evidence. He argues
that because the “clear weight of the evidence indicates Mr. Salazar’s
injuries were caused by A&J’s negligence[,] the verdict rendered
contrary to this evidence is a miscarriage of justice.” Pltf’s Br. in
Support of Mot. for New Trial (ECF 340) at 2. Salazar contends that:
(1) A&J was found to be negligent because it did not have an OSHA
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compliant fall arrest system in place (id. at 6-7); (2) with no predesignated anchor points or an onsite qualified person available, “the
clear weight of the evidence showed this non-compliance was a
substantial factor in Salazar’s fall” (id. at 5, 7); and (3) “[f]or all intents
and purposes, A&J did not make causation a part of its defense either
with the evidence it presented or in argument” (id. at 4). Salazar
argues that “had the requisite implementation, enactment, and
training been done, the clear weight of the evidence indicates that Mr.
Salazar would not have ascended the trusses without being tied-off at a
pre-designated anchor point.” Id. at 10.
A&J argues that Salazar’s motion should be denied “because the
jury reasonably concluded upon supportable evidence that [Salazar’s]
acts and omissions alone were the substantial factors in causing his
injuries.” Deft’s Response in Opposition (ECF 347) at 1. A&J argues
that while it was Salazar’s burden to prove causation, A&J presented
evidence showing that Salazar’s “free choice not to use his fall
protection gear while climbing onto the top plate was the cause of his
own injuries...” Id. at 5 (emphasis in original). A&J argues that the
evidence at trial demonstrated that Salazar: (1) appreciated the risk of
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not wearing fall protection, (2) knew that he was supposed to wear fall
protection while working at heights, and (3) did not know why he was
not wearing fall protection on the day of his accident. Id. at 12-13.
Thus, A&J concludes, the jury’s determination that A&J’s negligence
was not a substantial factor in bringing about Salazar’s injuries was
reasonable and should not be disturbed. Id. at 16.
III. LEGAL STANDARD
Rule 59(a)(1) states that a new trial may be granted after a jury
trial “for any reason for which a new trial has heretofore been granted
in an action at law in federal court[.]” When, as here, a motion is made
for a new trial based on the trial evidence, the district court has the
duty “to weigh the evidence as [the court] saw it, and to set aside the
verdict of the jury, even though supported by substantial evidence,
where, in [the Court’s] conscientious opinion, the verdict is contrary to
the clear weight of the evidence.” Molski v. M.J. Cable, Inc., 481 F.3d
724, 729 (9th Cir. 2007) (quoting Murphy v. City of Long Beach, 914
F.2d 183, 187 (9th Cir. 1990)).
It has long been recognized, however, that a judge is not free to
reweigh the evidence and set aside the jury verdict merely because the
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jury could have drawn different inferences or conclusions or because
the judge feels that other results are more reasonable. Tennant v.
Peoria & Pekin Union Ry., 321 U.S. 29, 35 (1944). More recently, the
Ninth Circuit held that it is an “impermissible practice” for the court to
take its own view of the evidence in place of the jury’s. Tortu v. Las
Vegas Metropolitan Police Dept., 556 F.3d 1075, 1084 (9th Cir. 2009).
See also Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735, 743
(9th Cir. 2003) (reversing order granting a new trial, stating “[i]t is not
the courts’ place to substitute our evaluations for those of the jurors”);
Roy v. Volkswagen of America, Inc., 896 F.2d 1174 (9th Cir. 1990)
(reversing order granting new trial, stating that a new trial may not be
granted “merely because [the trial judge] might have come to a
different result from that reached by the jury”).
IV.
DISCUSSION
Salazar focuses his motion for a new trial on the jury’s finding
that A&J’s negligence was not a cause of Salazar’s injury. The Final
Jury Instructions regarding negligence included Jury Instruction No. 6,
which provided:
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Every person is responsible for injury to the person of another,
caused by his negligence.
Negligence is the failure to use reasonable care. Negligence may
consist of action or inaction. A person is negligent if he fails to act
as an ordinarily prudent person would act under the
circumstances.
ECF 325 at 7. Jury Instruction No. 7 provided:
A&J had a non-delegable duty of safety on the work site where
Salazar was injured.
This non-delegable duty required that A&J do the following:
(1)
furnish a place of employment that was safe for each
employee;
(2)
with the exception of footwear, purchase, furnish, and
require the use of health and safety devices, safeguards,
protective safety clothing, or other health and safety items,
that may be required by state or federal law, the employer,
or the terms of an employment contract;
(3)
adopt and use practices, means, methods, operations, and
processes that are reasonably adequate to render the place
of employment safe; and
(4)
do any other thing reasonably necessary to protect the life,
health, and safety of the employees.
Violation of this non-delegable duty is negligence.
Id. at 8. Finally, Jury Instruction No. 8 provided:
If you find that A&J violated any Occupational Safety and Health
Act regulations, you may consider that as evidence of negligence.
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Id. at 9.
The Final Jury Instructions contained one causation instruction,
Jury Instruction Number 12, which provided:
A party’s conduct is a cause of injury if the conduct is a
substantial factor in bringing about the injury.
Id. at 13. Salazar did not object to Jury Instruction 12 at the trial, nor
does he object now. Rather, Salazar argues that, under the abovequoted jury instructions, the clear weight of the evidence should have
led the jury to conclude that A&J’s negligence was a substantial factor
in bringing about Salazar’s injury.
Salazar’s position rests in part on the assumption that the jury
based its finding of negligence on subsections (1) and (3) of Instruction
Number 7. ECF 340 at 5. Salazar argues that the only evidence
defining a “place of employment that was safe” came from OSHA
standards, and that the evidence demonstrated that A&J failed to
implement an OSHA compliant fall arrest system on the work site. Id.
Without predesignated anchor points or site-specific training, Salazar
argues, “it is more likely than not” a worker would be injured in a fall;
thus, A&J’s inadequate fall arrest system must have been a
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“substantial factor” in bringing about Salazar’s injury.
To support his position, Salazar directs the Court to Jay Foster’s
testimony explaining: (1) A&J used the same site-specific fall arrest
plan for about ten years for different types of job sites, (Foster Trial
Test (ECF 337) at 29-30, 42); (2) A&J’s Safety & Health Plan did not
designate specific anchor points designed by a Qualified Person, (Foster
Trial Test (ECF 341) at 35); and (3) each worker was required to
designate proper anchor points each time that worker went into the
trusses (id. at 74-75), and different workers gave different suggestions
as to where Salazar should have tied off.
In response, A&J points to the following evidence: (1) Salazar’s
testimony regarding the necessity and use of fall protection, (2)
testimony from multiple witnesses regarding the training provided at
the work site, (3) testimony from the other workers regarding the
necessity of fall protection, and the location of anchor points, and (4)
testimony from Salazar’s expert witness regarding the location of
anchor points. See ECF 347 at 6-8.
After carefully weighing the evidence presented at the trial under
the applicable legal standards, the Court concludes that the jury’s
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verdict is not against the clear weight of the evidence. First, contrary
to Salazar’s assertions, the record reflects that A&J defended against
causation allegations. As quoted in Salazar’s brief, A&J’s counsel
stated in final argument “[w]hat caused Mr. Salazar’s fall was his own
free choice to not use fall protection the day of his accident.” ECF 340
at 11 (citing Deft’s Closing State. (ECF 338) at 9). A&J’s counsel also
stated, “[w]e, more likely than not, would not be here if Mr. Salazar
would have worn his fall protection that day[,]” and that “Mr. Salazar
also testified that if he had been wearing his fall-protection gear or
using it he wouldn’t have hit the ground.” ECF 338 at 4.
Second, the verdict form does not specify under which of the
several negligence instructions or subsections the jury found
negligence. The Court therefore may not rely on Salazar’s assumption
that the jury found negligence based on the failure to have an OSHA
compliant fall arrest system. For example, the jury could have found
negligence based on a lack of adequate safety documentation, the
failure to purchase and furnish safety gear, or a different violation of
OSHA not involving the fall arrest system – conclusions supportable by
the record.
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Finally, the jury’s finding that A&J’s negligence was not a
substantial factor in bringing about Salazar’s injury finds support in
the evidence. There was trial evidence of the following: (1) evidence
that Salazar was not wearing his safety harness when he ascended to
the top plate shortly before his fall; (2) Salazar appreciated the risk of
not wearing fall protection while working at heights, but did not know
why he was not wearing fall protection that day, (Salazar Trial Test
(ECF 347-1) at 7, 10-13); and (3) while various witnesses gave different
suggestions as to where Salazar should have tied off, each identified
anchor points, such as the top plate or the truss, to which a worker
could tie off, (see, e.g., Foster Trial Test (ECF 337) at 76 (“Any of us
would have climbed the extension ladder, gotten to the top, taken a
beam wrap, put it around the eight-by-eight, hook your lanyard on and
then step out on the top plate”); MacDonald Trial Test (ECF 346) at 8
(“He could start by tying off to the bottom cord until his D-ring went
above that level”).
In light of this and other evidence, and in deference to the jury’s
role in resolving any discrepancies in the testimony, the Court is not
“left with the definite and firm conviction that a mistake has been
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committed.” See Landes, 833 F.2d at1371-72. Accordingly, the Court
cannot conclude that the jury’s verdict is contrary to the clear weight of
the evidence. See, e.g., Correia v. Fitzgerald, 354 F.3d 47, 56-57 (1st
Cir. 2003) (affirming district court’s denial of Rule 59 motion where
jury found negligence but no causation). The jury had a difficult task to
perform in reaching its verdict and the Court is not persuaded that it
should substitute its opinion for the opinions of the jurors.
V.
CONCLUSION
Based on the foregoing, IT IS ORDERED that Salazar’s Motion
for a New Trial (ECF 339) is DENIED.
DATED this 16th day of April, 2013.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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