{ "id": 8955227, "name": "DOUGLAS K. WARNOCK, Plaintiff v. CSX TRANSPORTATION, INC., Defendant", "name_abbreviation": "Warnock v. CSX Transportation, Inc.", "decision_date": "2003-07-15", "docket_number": "No. COA02-568", "first_page": "215", "last_page": "219", "citations": [ { "type": "official", "cite": "159 N.C. App. 215" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "643 F.2d 19", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1202842 ], "year": 1981, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/f2d/643/0019-01" ] }, { "cite": "842 F.2d 1335", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10549913 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/f2d/842/1335-01" ] }, { "cite": "644 F. Supp. 1040", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 6052411 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/f-supp/644/1040-01" ] }, { "cite": "674 P.2d 1276", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10431416 ], "year": 1983, "pin_cites": [ { "page": "1284", "parenthetical": "\"a loser should not by design get two bites at the cherry.... The proper time to challenge the verdict was when the jury was still able to explain that which [the defendant] now considers to be an inconsistency\"" } ], "opinion_index": 0, "case_paths": [ "/p2d/674/1276-01" ] }, { "cite": "725 So.2d 1144", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11772047 ], "year": 1998, "pin_cites": [ { "page": "1145", "parenthetical": "\"party's failure to seek jury reconsideration below is properly regarded as a conscious choice of strategy since a complaining party would naturally risk having the award unfavorable adjusted\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/725/1144-01" ] }, { "cite": "465 F.2d 114", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 714921 ], "year": 1972, "pin_cites": [ { "page": "118", "parenthetical": "concluding that \"the trial court should have been given the opportunity to correct error, if any existed, by resubmitting the matter to the jury.\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/465/0114-01" ] }, { "cite": "107 L. Ed. 2d 372", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "493 U.S. 964", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11435136, 11435034, 11434823, 11435303, 11434922, 11435180, 11435349, 11435096, 11435066, 11435227, 11434877, 11434847 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/493/0964-08", "/us/493/0964-05", "/us/493/0964-01", "/us/493/0964-11", "/us/493/0964-04", "/us/493/0964-09", "/us/493/0964-12", "/us/493/0964-07", "/us/493/0964-06", "/us/493/0964-10", "/us/493/0964-03", "/us/493/0964-02" ] }, { "cite": "878 F.2d 144", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10530680 ], "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/f2d/878/0144-01" ] }, { "cite": "444 U.S. 490", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11306989 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "493" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/444/0490-01" ] }, { "cite": "112 L. Ed. 2d 102", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "498 U.S. 847", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6385601, 6386755, 6386116, 6386247, 6386375, 6387306, 6385459, 6386933, 6385813, 6387127, 6387484, 6385951 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/498/0847-02", "/us/498/0847-08", "/us/498/0847-05", "/us/498/0847-06", "/us/498/0847-07", "/us/498/0847-11", "/us/498/0847-01", "/us/498/0847-09", "/us/498/0847-03", "/us/498/0847-10", "/us/498/0847-12", "/us/498/0847-04" ] }, { "cite": "894 F.2d 299", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10530630 ], "year": 1990, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/f2d/894/0299-01" ] }, { "cite": "45 U.S.C. \u00a7 51", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 559, "char_count": 9789, "ocr_confidence": 0.763, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21276665164648595 }, "sha256": "d902aefb76dd318c11eb077cad07521da9feaa4f0f700f8c58d42cb6881812a1", "simhash": "1:6a6a6ea81b2499f2", "word_count": 1595 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and LEVINSON concur." ], "parties": [ "DOUGLAS K. WARNOCK, Plaintiff v. CSX TRANSPORTATION, INC., Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nDouglas K. Wamock (\u201cplaintiff\u2019) appeals from judgment entered by the trial court in favor of CSX Transportation, Inc. (\u201cdefendant\u201d). In a separate order dated 1 November 2001, plaintiff\u2019s motions for a new trial and judgment not withstanding the verdict were denied. For the reasons stated herein, we conclude that the trial court committed no error.\nThe pertinent facts of the instant appeal are as follows: Plaintiff was employed by defendant, a railroad company, for thirty years as a locomotive engineer. In March of 1999, plaintiff was engaged in a \u201chumping operation,\u201d which required him to move railroad cars in the rail yard. During the operation, plaintiff\u2019s locomotive derailed, causing him to suffer a back injury, which necessitated surgical treatment and prevented him from returning to work.\nOn 7 October 1999, plaintiff filed a complaint against defendant under the Federal Employers\u2019 Liability Act (\u201cFELA\u201d), 45 U.S.C. \u00a7 51, et seq., alleging that the derailment was caused by defendant\u2019s negligence and that defendant was strictly liable for the violation of safety regulations. The matter was heard in May 2001 before a jury and at the conclusion of trial, the jury returned the following verdict:\nIssue #1: Was the plaintiff injured by the negligence of the defendant?\nAnswer: NO\nIssue #2: Was the plaintiff injured by the defendant\u2019s violation of the provisions of a Federal Safety Regulation?\nAnswer: NO\nIssue #3: Did the plaintiff by his own negligence contribute to his injury?\nAnswer: YES\nIssue #4: What proportion or percentage of plaintiff\u2019s injury do you find to have been caused by the negligence of the respective parties?\nDefendant 25%\nPlaintiff 75%\nIssue #5: What amount is the plaintiff entitled to recover for personal injury?\nAnswer: $80. 000.00\nAfter reviewing the verdict, the trial court shared the verdict with counsels for defendant and plaintiff in a bench conference. Plaintiff\u2019s counsel objected to the verdict as inconsistent and requested a mistrial. Following the bench conference, the trial court struck the jury\u2019s answer to interrogatory four and interrogatory five, and then entered judgment for defendant. Plaintiff appeals.\nThe dispositive issue on appeal is whether plaintiff waived any claim of error based on the inconsistency of the jury\u2019s verdict where plaintiff insisted that the trial court declare a mistrial and the jury not be permitted to further deliberate. For the reasons stated herein, we conclude that plaintiff has waived his claim of error.\nWe note that plaintiff brought suit in Richmond County Superior Court under the Federal Employers\u2019 Liability Act (\u201cFELA\u201d). FELA suits may be brought in state court or federal court. Lockard v. Missouri P. R. Co., 894 F.2d 299, 303, cert. denied, 498 U.S. 847, 112 L. Ed. 2d 102 (8th Cir. 1990). It is well established that \u201cquestions concerning the measure of damages in an FELA action are federal in character.\u201d Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 493, 62 L. Ed. 2d 689, 693 (1980). \u201cThis is true even if the action is brought in state court.\u201d Id.\nAccording to Rule 49(b) of the Federal Rules of Civil Procedure, when the answers to the special interrogatories are inconsistent with each other and with the general verdict, the court should not enter judgment but return the answers to the jury or order a new trial. Fed. R. Civ. P. 49(b) (2001). However, in Lockard the Court stated that\nif trial counsel fails to object to any asserted inconsistencies and does not move for re-submission of the inconsistent verdict before the jury is discharged, the party\u2019s right to seek a new trial is waived. . . . The purpose of the rule is to allow the original jury to eliminate any inconsistencies without the need to present the evidence to a new jury... . This prevents a dissatisfied party from misusing procedural rules and obtaining a new trial for an asserted inconsistent verdict.\nId. at 304 (citations ommitted); see White v. Celotex Corp., 878 F.2d 144, 146 (4th Cir.), cert. denied, 493 U.S. 964, 107 L. Ed. 2d 372 (1989); see also Ludwig v. Marion Laboratories, Inc., 465 F.2d 114, 118 (8th Cir. 1972) (concluding that \u201cthe trial court should have been given the opportunity to correct error, if any existed, by resubmitting the matter to the jury.\u201d); Chase Construction Co. v. Colon, 725 So.2d 1144, 1145 (Fla. App., 3rd District, 1998) (\u201cparty\u2019s failure to seek jury reconsideration below is properly regarded as a conscious choice of strategy since a complaining party would naturally risk having the award unfavorable adjusted\u201d); Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1284 (Wyo. 1983) (\u201ca loser should not by design get two bites at the cherry.... The proper time to challenge the verdict was when the jury was still able to explain that which [the defendant] now considers to be an inconsistency\u201d).\nIn the instant case, the record reveals that the jury returned a verdict and the trial judge reviewed the verdict. Thereafter, the trial judge briefly excused the jurors and engaged in a bench conference, which does not appear to have been recorded. At the conclusion of the bench conference, the trial judge made the following recorded comments:\nIn accordance with our bench discussions, upon motion of the defendant, and the Court on its own motion, the Court will accept as consistent the answers of the jury to Issues 1, 2 and 3.\nAs to the answer of the jury to Issues 4 and 5 being inconsistent with the jury\u2019s response in answers to the issues of negligence, the Court will set aside the jury\u2019s verdict as to Issues 4 and 5, and render an amount of zero for the recovery of the plaintiff as to personal injuries.\nThe jury was then dismissed and the following colloquy took place between the Court and plaintiff\u2019s attorney:\nThe Court: Anything further from the parties at this time for plaintiff?\n[Plaintiff]: The plaintiff, having advised the Court that we did not feel that any curative instructions would be helpful... It is clear, from the answers given by the jury, that they were confused. They gave such an inconsistent verdict that it defies logic to see how they got there ... we\u2019d ask the Court to declare a mistrial and let us retry this thing, . . .\nWe note that the trial court\u2019s order regarding post-trial motions reveals the following:\nAfter reviewing th[e] verdict, the Court shared the verdict with counsel for both parties at the bench and sought their input as to how to proceed. Plaintiff\u2019s counsel suggested that the only alternative was for the Court to order a mistrial. The Court inquired as to whether plaintiff requested that the issues be resubmitted to the jury with further instructions. Plaintiff\u2019s counsel declined that offer and instead insisted that the jury not conduct further deliberations or receive further instructions... . Rather than objecting to the Court\u2019s acceptance of the verdict and seeking a re-submission of the issues to the jury, plaintiff\u2019s counsel moved for a mistrial and that motion was denied.\nAfter a careful review of the record, it is clear that plaintiff\u2019s counsel refused to seek re-submission of the purportedly inconsistent issues to the jury. We note that the trial court twice gave plaintiffs counsel the opportunity to seek re-submission of the issues, and plaintiffs counsel refused. Plaintiffs counsel further stated that \u201cwe did not feel that any curative instructions would be helpful.\u201d Therefore, plaintiff made a conscious choice to allow the trial court to discharge the jury before any alleged inconsistencies could be properly addressed. Moreover, the only alternative submitted by plaintiff to the trial court was a mistrial. Plaintiff insisted that the jury not conduct further deliberations or receive further instructions.\nWe recognize that the requirement under Rule 49(b) is not whether plaintiff \u201cfeels that any curative instruction would be helpful,\u201d but whether the original jury is allowed to eliminate any inconsistencies without the need to present the evidence to a new jury. Under these set of facts, a grant of a mistrial by the trial court would eliminate the incentive of Rule 49(b) \u201cfor efficient trial procedure, and opens the door to the possible misuse of the rule\u2019s procedures by parties anxious to circumvent an unsatisfactory jury verdict by procuring a new trial.\u201d United States Football League v. National Football League, 644 F. Supp. 1040, 1049 n.8 (S.D.N.Y. 1986), affirmed, 842 F.2d 1335 (2d Cir. 1988); Skillin v. Kimball, 643 F.2d 19, 20 (1st Cir. 1981). Accordingly, counsel for plaintiff waived any right to complain about the alleged inconsistency in the jury verdict by failing to permit the trial court to resubmit the interrogatories to the jury.\nFor the foregoing reasons, we conclude that the trial court committed no error.\nNo error.\nJudges TYSON and LEVINSON concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "WARSHAUER, WOODRUFF & THOMAS, P.C., by Michael J. Warshauer, and KITCHIN, NEAL, WEBB, WEBB, & FUTRELL, P.A., by Henry L. Kitchin for plaintiff appellant.", "MILLBERG, GORDON & STEWART, PLLC, by Frank J. Gordon, for defendant appellee." ], "corrections": "", "head_matter": "DOUGLAS K. WARNOCK, Plaintiff v. CSX TRANSPORTATION, INC., Defendant\nNo. COA02-568\n(Filed 15 July 2003)\nAppeal and Error\u2014 inconsistent verdict \u2014 FELA action\u2014 waiver of error\nPlaintiff railroad employee waived any claim of error based upon the inconsistency of the jury\u2019s verdict in an action under the Federal Employers\u2019 Liability Act when plaintiff\u2019s counsel declined the court\u2019s offer to resubmit the issues to the jury with further instructions and insisted that a mistrial was the only available remedy.\nAppeal by plaintiff from judgment entered 1 June 2001 and order entered 1 November 2001 by Judge Robert F. Floyd in Richmond County Superior Court. Heard in the Court of Appeals 29 January 2003.\nWARSHAUER, WOODRUFF & THOMAS, P.C., by Michael J. Warshauer, and KITCHIN, NEAL, WEBB, WEBB, & FUTRELL, P.A., by Henry L. Kitchin for plaintiff appellant.\nMILLBERG, GORDON & STEWART, PLLC, by Frank J. Gordon, for defendant appellee." }, "file_name": "0215-01", "first_page_order": 245, "last_page_order": 249 }