Kаthleen G. O‘GEE, Plaintiff-Appellee, v. DOBBS HOUSES, INC., Defendant and Third-Party Plaintiff-Appellant, v. UNITED AIR LINES, INC., Third-Party Defendant-Appellee and Cross-Appellant.
Nos. 81 and 206, Dockets 77-7158 and 77-7189
United States Court of Appeals, Second Circuit
Decided Jan. 19, 1978
570 F.2d 1084
Argued Sept. 30, 1977.
We therefore conclude with some reluctance because of the situation I have just mentioned that the two candidates and their officers and agents, as well as the Police Commissioner should be restrained in order to effect the protection of the Fourteenth Amendment rights of ABC and its viewing public. We think that although there has already been one arrest at one of the headquarters at the instigation of one of the employees of one of the candidates and that this criminal case is pending, nevertheless, despite the constraints being put on federal courts by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and other related cases, the impact of those cases is excepted when the remedy at law is inadequate and the harm is “great and immediate.”
Since we are dealing hеre with something that is going to happen on Monday, there is no conceivable possibility that the state courts in the criminal prosecution can determine the matter by that date.
Accordingly, we reverse the order of the district court, and we order a restraining order to be issued preventing the arrest of the ABC crew, but we are limiting it to the condition that CBS and NBC participate simultaneously in the broadcasts in question. In the event that CBS and NBC refuse to either cross the picket line or have their managerial crew operate, then the injunсtion will not be operative because that would result only in ABC getting what we might call in the vernacular a “scoop” which is not our intention. In other words, we want the networks to be on a par and if they are on a par, then Mr. Koch‘s suggestion that the public will be defeated in its right of viewing becomes chimerical.
If counsel will proceed to the Clerk‘s Office, he will find that we have scribbled out an order based on the opinion which we have just delivered, and you might then proceed to Judge Duffy‘s court, which I think is Part I this week, and make such further arrangements as may be necessary, to process the papers.
I want to thank counsel both for the speed with which they met this problem and for the skill with which they presented the issues. It was very helpful to the court on both sides, and I compliment you all.
(Later in the day, the Court added to its oral opinion: “The judgment dismissing the complaint is reversed.“)
Joseph Arthur Cohen, New York City (Alexander, Ash, Schwartz & Cohen and Sidney A. Schwartz, New York City, on the brief), for defendant and third party plaintiff-appellant.
Donald F. Driver, New York City (Haight, Gardner, Poor & Havens, New York City, on the brief), for third party defendant appellee and cross-appellant.
Before LUMBARD, MOORE and FEINBERG, Circuit Judges.
LUMBARD, Circuit Judge:
This appeal and cross-appeal arise out of an incident that took place during a United Airlines flight on April 23, 1972, as a result of which Kathleen O‘Gee (now Mrs. Kathleen Collins), a United flight attendant, claimed to have suffered injuries to her back. The incident occurred when O‘Gee attempted to reposition a large piece of kitchen equipment loaded on board the plane by Dobbs Houses, Inc. [Dobbs], a caterer. Dеfendant Dobbs appeals from a jury verdict against it in the amount of $170,000, and third-party defendant United cross-appeals from the dismissal of its counterclaim against Dobbs for indemnification of costs.
We affirm the judgment against Dobbs on the issues of liability, but remand to the district court with instructions to grant Dobbs a new trial on the issue of damages unless, within a reasonable time, plaintiff signifies willingness to accept a reduction of damages to $85,000. We reverse the dismissal of United‘s counterclaim.
I. FACTS
In 1968, Dobbs and United entered into a contract pursuant to which Dobbs agreed to provide the food that United would serve on flights out of Atlanta, Ga. This contract was in effect on April 23, 1972. Part of Dobbs’ responsibility in Atlanta was to load food onto a cold buffet belonging to United. The buffet is a large, cabinet-like, four-drawer unit weighing between five and eight hundred pounds when loaded. After being filled, the buffet is raised to the galley section of the aircraft, where it is placed on tracks on the floor and slid into a recessed position.
Dobbs’ responsibility ended when the buffet was latched in place. The locking mechanism consisted of а lever/latch on each rail of the track on which the buffet rode.1 The levers had to be in the “up” position to permit a buffet to be removed; when the buffet was withdrawn, the levers were supposed to drop to the “down” position, permitting a new buffet to be installed. The levers would then remain down, locking the buffet in place, until they were once again raised, manually or by foot. Though this system was designed to work automatically, in that removing a buffet forced the levers down, and a new buffet could not be installed unless the levers were in the lockеd, “down” position, it was conceded that if the levers were, in fact, in the “up” position while a buffet was in place, the buffet would not be secure, and might slide out into the galley. Accordingly, the United Ramp Manual, which was binding on Dobbs, required a visual check of the levers, and a physical pull on the buffet, after the buffet was loaded on board, to ensure that the latches were down and that the buffet was locked in place.
On April 23, 1972, O‘Gee was a stewardess on United flight # 476, a Stretch 727,
Throughout the period of takeoff, O‘Gee faced the galley and observed no one enter the area. Some five minutes after takeoff, she noticed that the buffet had slid two feet out of position, substantially blocking access to the emergency exit. O‘Gee immediately sought to push the unit back into position, but failed. At this time, she “felt something pull” in her back. She then braced one foot behind her and tried again, again failing, and feeling a sharper pain in her back. A third try with the help of another stewardess failed, as did an attempt by the flight engineer. Finally, all three acting in concert succeeded in pushing the buffet back; O‘Gee stepped on the locking levers to latch the buffet in place, where it remained for the rest of the flight. No report of this incident was made at the conclusion of the flight.
During the remainder of April 23, O‘Gee had a “very bad backache,” of which she complained to another stewardess and the flight engineer. She returned to work on April 24 and 25, but suffered pain and stiffness throughout both days. On April 26, she reported to a United medical officer, who gave her medication and requested that she return before her next flight. Over the next fourteen months, O‘Gee saw several physicians, both in New York City and in Rochester, where her parents lived.
Her problem was variously diagnosed as back sprain, a slipped disk, and a herniated disk. Much of this period was spent either in bed or in therapy; attempts to resume work in July and again in October of 1972 were unsuccessful.3 Finally, in May of 1973, O‘Gee underwent a laminectomy for the removal of a herniated disk from her back. After a period of recuperation, she returned to work at United (on smaller planes than formerly) in September of 1973. Thereafter, O‘Gee lost no further time from work as a result of the April, 1972, incident, and even received commendations for perfect records in 1975 and 1976.4
O‘Gee brought suit against Dobbs, alleging that her injury was the result of the defendant‘s negligence in placing and securing the buffet unit on the plane. Dobbs impleaded United, claiming that any injury sustained resulted from defects in United‘s equipment. United counterclaimed against Dobbs for costs and counsel fees, citing the indemnity clause of its contract with Dobbs.
At trial, O‘Gee did not call to testify any of the doctors she had consulted in the two years immediately following the incident.5 Rather, she relied for her medical testimony exclusively on Dr. Leo J. Koven, who first saw her in December of 1976, but who was given access to the findings of the Rochester doctors who had recommended and performed the laminectomy, as well as to her hospital records. Dr. Koven was permitted to testify, over strenuous objection, to the opinions of other doctors O‘Gee had seen, as he had learned of them through their reports, and through the history he had taken from O‘Gee herself.
Following a seven-day jury trial, a special verdict was returned finding Dobbs negligent, its negligence 100% responsible for plaintiff‘s damages, and O‘Gee entitled to $170,000. A motion to set aside the verdict
- That the evidence was insufficient to permit a jury verdict on the issues of Dobbs’ negligence and causation;
- That the trial court erred in making reference to the so-called ‘emergency doctrine’ in its charge to the jury;
- That the trial court erred in permitting Dr. Koven to testify about other doctors’ opinions; and
- That the trial court erred in refusing to set aside the verdict as excessive.
On its cross-appeal, United alleges that the terms of its indemnification agreement with Dobbs require that Dobbs be found liable to United for any expenses incurred in defending against the third-party complaint.
II. SUFFICIENCY OF EVIDENCE
By undisputed ruling of Judge Weinstein, Georgia tort law is the law of this case. Under prevailing Georgia law, there was more than the “scintilla” of evidence required to get to the jury, and enough evidence to sustain the jury verdict for O‘Gee, with respect to both thе duty owed by Dobbs to O‘Gee, see Davis v. Aiken, 111 Ga.App. 505, 142 S.E.2d 112 (Ct. App.1965), and the breach of that duty, see Cagle v. Atchley, 127 Ga.App. 668, 194 S.E.2d 598 (Ct.App.1972). The main issue is foreseeability of injury, and it was reasonably foreseeable that an unsecured buffet might come loose, and a United employee be injured in trying to replace it.
Similarly, the question of causation is for the jury, absent overwhelming evidence. Powers v. Pate, 107 Ga.App. 25, 129 S.E.2d 193 (Ct.App.1962). Again, there was more than enough evidence to sustain the verdict. Finally, we cannot say that, as a matter of law, the evidence was insufficient to permit the jury to find that Dobbs’ negligent installation of the buffet was the sole cause of O‘Gee injury, and that United was totally blameless.
III. THE EMERGENCY DOCTRINE
Judge Weinstein‘s sole reference to the ‘emergency doctrine’ is set forth in the margin.6 We cannot find that so brief and unstressed an instruction was error in the circumstances of this case. Plaintiff was a stewardess, rigorously trained in the safety procedures of her airline. One of the factors she must have had uppermost in her mind was the need to preserve access to emergency exits at all times during flight.
IV. DR. KOVEN‘S TESTIMONY
This allegation of error raises questions of substantially greater magnitude. Of the doctors O‘Gee had consulted in the period immediatеly following the incident, a number were present right in New York, where the trial was held. Yet instead of calling any of these doctors, who had had a chance to examine her when both the nature of her injuries and the probability of their being sequelae of the incident would have been most apparent, she called only Dr. Koven, a doctor retained for the purposes of the litigation, and who first saw O‘Gee in December of 1976, more than four years after the buffet.
It was through the testimony of Dr. Koven that O‘Gee presented to the jury the opinions of the doctors she had seen in 1972 and 1973. Judge Weinstein permitted the witness to testify not only to what O‘Gee had told him about her condition and its genesis, but also to what O‘Gee had told him that the other doctors had told her about her injuries. Thus, Dr. Koven‘s testi-
Prior to the adoption of the Federal Rules of Evidence, a non-treating doctor such as Dr. Koven would have been permitted to recite his patient‘s statements to him, not as proof of the facts stated, but only to show the basis of his opinion. W. MсCormick, Evidence § 267 (1954). The Federal Rules, however, rejected this distinction as being too esoteric for a jury to recognize. 4 Weinstein & Berger, Evidence 803(4)[01].
Nowhere does the commentary on
V. DAMAGES
Dobbs argues that the $170,000 verdict for O‘Gee is excessive. We laid down the standard for review of the size of a verdict sixteen years ago:
[W]e hold we have the power to review the order of a trial judge refusing to set aside a verdict as excessive. If we reverse it must be because of an abuse of discretion. If the question of excessiveness is close or in balance, we must affirm. The very nature of the problem counsels restraint. Just as the trial judge is not called upon to say whether the amount is higher than he personally would have awarded, so are we appellate judges not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand. We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law.
Dagnello v. Long Island Railroad Co., 289 F.2d 797, 806 (2d Cir. 1961) (footnote omitted). Whatever the opinion of the triаl court,7 we must make our own assessment of the evidence to determine whether there has been a denial of justice. See Grunenthal v. Long Island Railroad Co., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968); Batchkowsky v. Penn Central Co., 525 F.2d 1121, 1126 (2d Cir. 1975) (Lumbard, J., dissenting); DeMauro v. Central Gulf Steamship Corp., 514 F.2d 403 (2d Cir. 1975).
We believe that the denial of the motion to set aside the verdict as excessive was, in this case, an abuse of discretion. O‘Gee alleged $10,000 in actual lost wages, for the fourteen months in 1972 and 1973 when she did not work. There was no
Indeed, when O‘Gee returned to work temporarily in October of 1972, she was found to be—and certified by her signature that she agreed she was—in good health. Further evidence of this is provided by O‘Gee‘s 1971 and 1972 tax returns that were presented to the jury. In 1971, when she was presumably working full time, O‘Gee earned approximately $6982. In 1972, during which she missed five months, she earned approximately $6411. Apparently her condition did not prevent her from working substantial amounts of overtime.
On appeal, it was argued that O‘Gee suffered humiliation and a loss of prestige as a result of being forced to work on smaller planes than she had formerly. Suffice it to say that we do not find this, even in conjunction with the other items of damage alleged, to justify an award of $170,000. Consequently, we conclude that Dobbs is entitled to a new trial on the issue of damages, unless O‘Gee is willing to аccept a reduction of the judgment to $85,000, one half of the present figure.
VI. THE INDEMNITY AGREEMENT
The indemnity clause of the contract between Dobbs and United is set forth in the margin.8 Judge Weinstein ruled, after the verdict, that the clause was not meant to apply to situations in which United was not a primary defendant, but only a third-party defendant brought in by Dobbs.
The only language in the clause that could conceivably justify that conclusion is the sentence regarding notice to Dobbs of claims against United. This clause cannot apply to claims brought by Dobbs against United, it is argued, for in thоse cases there is clearly no reason for United to notify Dobbs of the claims. We are not persuaded by that argument. We posit a case in which a passenger had suffered the same injury as O‘Gee under the same circumstances, but was not restrained from joining United as a defendant by an employment relationship. Surely Dobbs and United would have raised as cross-claims against each other the very same claims here raised by third-party complaint and counterclaim. Does Dobbs assert that in that case, the intent of the indemnity agreement would be for Dobbs to reimburse United for its expenses in connection with defense against the passenger‘s claims, but not for its expenses with respect to the cross-claims?
We regard the indemnity agreement as one whereby United sought to ensure that it would not have to bear the costs of any suit to which it was a party arising out of the service of food or the loading of the buffet, unless it was found to have been grossly negligent. The result here should be the same as in North Central Airlines, Inc. v. City of Aberdeen, 370 F.2d 129 (8th Cir. 1966), in which the city was permitted to recover its costs from the airline under an indemnity agreement, even though the injured passenger/plaintiff had sued only the airline, which had in turn impleaded the city as lessor of its terminal.
Finally, we are not inclined to accept Dobbs’ argument that United, having rest-
Affirmed in part, reversed in part, remanded in part with instructions.
FEINBERG, Circuit Judge (concurring in part and dissenting in part):
I concur in so much of the majority opinion as affirms Dobbs’ liability to plaintiff Kathleen O‘Gee and reverses the dismissal of United‘s counterclaim. I emphatically dissent from the reduction of plaintiff‘s damages from $170,000 to $85,000, on pain of a new trial.1
Plaintiff at the time of the incident complained of was 23 years old. The jury could havе found—and presumably did, in view of the size of the verdict—the following: Before the injury to plaintiff‘s back, she was in “very good health” and had never had any back problems. Plaintiff had been “very active” and regularly skied, played tennis, used a small sailboat and enjoyed gardening. As a result of the accident, she was completely bedridden in early 1973 for a while and in severe pain. Despite the use of a back brace at this time, plaintiff was unable to straighten her back and continued to have “a lot of pain.”
In May 1973, plaintiff suffered the distress, both physicаl and mental, and the risk of a myelogram immediately followed by a laminectomy to remove a herniated disc. After this operation, she had to “learn to walk all over again” and has been in pain every day. She cannot play tennis and has given up attempts to ski again. She took her sailboat out once but found it “too much for [her] back.” She has married since the accident, but has trouble with household chores and does no more gardening.
Despite these medical procedures and a regimen of pain-producing daily exercises, plaintiff still has some numbness, mechanical disability, and recurrent pain for which she takes medication. The onset of her menstrual period increases her discomfort since her back swells and she experiences numbness running down her right leg as far as the calf. Moreover, pregnancy would assuredly aggravate her back condition. She has a 3½ inch permanent scar on her lower back. Dr. Koven testified that there was evidence of an “ongoing disability or derangement in the lower portion of the back, which was also producing pressure on the nerve root.” He concluded that this condition was permanent, but that it might be relieved by a fusion operation, although such an operation is not always successful. Without a fusion, according to the doctor, plaintiff will continue to have pain. Plaintiff was 28 at the time of trial with a life expectancy of almost 50 years. As a result of this injury, she was out of work a total of 14 months and lost $10,000 in wages.
The jury found that defendant Dobbs was negligent and that its negligence caused plaintiff‘s injury. As a result of that negligence, plaintiff has suffered severely in the past and will do so in the future. Her life has been radically and permanently changed. She is no longer a young woman in exuberant good health able to do what she wants. Now, her activities are limited and she has pain every day, and the years ahead are not promising.
In view of the substantial past and future pain and suffering, the loss of wages, the permanent disabilities, and the loss of en-
John SUGGS, Appellee, v. J. Edwin LaVALLEE, Superintendent, Clinton State Correctional Institution, Appellant.
No. 137, Docket 77-2053
United States Court of Appeals, Second Circuit
Decided Jan. 27, 1978
Argued Sept. 2, 1977.