United States District Court, E.D. Arkansas, Jonesboro Division
ROBERT C. HOWARD, PLAINTIFF
NUCOR-YAMATO STEEL COMPANY, DEFENDANT
OPINION AND ORDER
J. LEON HOLMES UNITED STATES DISTRICT JUDGE
This is a negligence case. Robert C. Howard was injured at a Nucor-Yamato Steel Company facility during the process of loading a heavy object onto his flatbed trailer. He alleged that while he was attempting to position dunnage on the trailer, Nucor’s overhead crane struck the dunnage and caused him to fall from the trailer. Nucor denied that the crane struck the dunnage and contended that Howard fell due to his own negligence. A jury found that there was negligence on the part of Nucor and on the part of Howard, attributing 87 percent of responsibility to Nucor and 13 percent of responsibility to Howard. Document #48. The jury found that Howard was damaged in the amount of $331, 600. Pursuant to the jury verdict, the Court entered judgment in favor of Howard against Nucor in the amount of $288, 492. Nucor has filed a renewed motion for judgment as a matter of law and, in the alternative, a motion for a new trial pursuant to Federal Rule of Civil Procedure 50(b). Document #70. For the following reasons, Nucor’s motion is denied.
Howard was a truck driver. On June 27, 2011, he drove from his home in Paducah, Kentucky, to the Nucor plant in Blytheville, Arkansas, in order to pick up an arbor, which is a cylindrical steel object (also called a roll), weighing approximately 38, 500 pounds, approximately 16 feet in length and 43 inches in diameter, and which is used in the steel mill to press hot steel. Howard signed in upon arrival at the plant and learned that he was to back his truck into door eleven and wait for Nucor employees to bring the arbor to the trailer. Nucor employees Scott Norris and Joey Summers were responsible for helping Howard load the arbor. Norris operated the crane from which the arbor was suspended. Howard was responsible for “staging up” before the arbor was loaded, which means he had to get the dunnage ready. Dunnage-wooden beams or railroad ties-is used to build cradles for large equipment. Howard testified that his normal procedure involved Nucor employees moving the load over the trailer, so that he could determine where the load should be positioned relative to the front and rear ends of the trailer. Then, Nucor employees generally would move the load over to the side and Howard would arrange his dunnage in two places perpendicular to the sides of the trailer so that the arbor could rest on the dunnage and be strapped down securely. After the dunnage was arranged, the load would be moved back to the desired position, set, and strapped in preparation for transportation.
While positioning his dunnage on the day of the accident, Howard fell from the trailer and fractured his calcaneus-heel bone. The fracture-line extended from the heel into one of the small joints in the foot called the subtalar joint, which is loaded with weight each time someone takes a step. Doctor Frederick Day treated Howard in the emergency room. He testified at trial via video deposition that the type of injury Howard sustained was a life-changing injury, even with a successful procedure to restore the joint to its proper alignment. Doctor Day performed such a procedure-an open reduction internal fixation-on Howard. He used wires, 76 screws, and a plate to stabilize Howard’s heel bone. Doctor Day provided follow-up treatment to Howard until Howard decided to transfer his care to Doctor Burton Stodghill, who also testified at trial via video deposition. Doctor Stodghill reiterated that a calcaneal fracture is a life-changing injury because it increases the chances of developing subtalar osteoarthritis and testified that he believed to a reasonable degree of medical certainty that Howard would have problems with subtalar osteoarthritis and ambulation for the rest of his life. He testified that Doctor Day did a good job of restoring the heel but that even if you can get a subtalar joint anatomically aligned, the damage is done at the time of the fracture. Doctor Stodghill eventually performed an operation to remove the plate installed by Doctor Day because Howard complained of pain around the area of the incision. In January 2014, Doctor Stodghill noted osteoarthritic changes within the subtalar joint. He opined that there was a high probability that Howard would never experience another pain-free step.
Judgment as a matter of law can be granted only if a reasonable jury would have no legally sufficient evidentiary basis to find for Howard. Luckert v. Dodge County, 684 F.3d 808, 817 (8th Cir. 2012) (citing Fed.R.Civ.P. 50(a)). “A jury verdict should not be overturned unless there is a complete absence of facts to allow a jury to reach its conclusion.” Madden v. Lumber One Home Center, Inc., 745 F.3d 899, 902-03 (8th Cir. 2014) (quoting Wilson v. Brinker Int’l, Inc., 382 F.3d 765, 770 (8th Cir. 2004)). “[J]udgment as a matter of law is proper when the record contains no proof beyond speculation to support the verdict.” Heating & Air Specialists, Inc. v. Jones, 180 F.3d 923, 932-33 (8th Cir.1999) (internal quotation marks omitted). In considering Nucor’s motion, the Court must give Howard the benefit of all reasonable inferences, assume as proven all facts that his evidence tended to show, and assume that all conflicts in the evidence were resolved in his favor. See Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 (8th Cir. 2000). The Court must consider evidence presented in favor of Howard during Nucor’s case in ruling on the renewed motion for judgment as a matter of law. See, e.g., Auto Transport v. Potter, 197 F.2d 907, 908-09 (8th Cir. 1952) (“The defendants presented a motion for a directed verdict in their favor for insufficiency of the evidence at the close of all the evidence which was overruled, and on this appeal all evidence submitted by both the plaintiff and the defendants must be considered in determining whether or not a submissible case was made.”). See also Potti v. Duramed Pharmaceuticals, Inc., 938 F.2d 641, 645 (6th Cir. 1991); Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 58, 922 S.W.2d 718, 722 (Ark. 1996) (“If, after the denial of a request for a directed verdict or a dismissal, a defendant introduces evidence which, together with that introduced by the plaintiff, is legally sufficient to sustain a verdict, he waives his claim of error by the court in refusing to direct a verdict, or dismiss, at the close of the plaintiff’s case.”); 9B Arthur R. Miller, Federal Practice and Procedure § 2534 (3d ed. 2015).
During a three-day trial, both sides presented the jury with extensive testimony along with several demonstrations to show how Howard fell from his flatbed trailer. Jurors heard three versions of what happened from Norris, Summers, and Howard.
Norris was an experienced crane operator, but he did not routinely load trailers, did not know the manner in which Howard planned to proceed, and did not have experience with the type of loading system Howard planned to use. Nucor policy required Norris to call a meeting to discuss loading the trailer since it was not a routine load, but he failed to do so.
Norris testified that, using the crane, he first moved the arbor over what he thought was the center of the trailer. Then, he spoke with Howard to ask where he wanted the arbor to be set. Howard stood on the ground with Norris and helped him position the arbor relative to the length of the trailer. Then, Howard climbed up onto the trailer to help Norris position the arbor relative to the width of the trailer. Norris agreed that it was a violation of Nucor policy to move the arbor while Howard was on the trailer. According to Norris, the arbor remained suspended some 12 to 18 inches above the center of the trailer while Howard attempted to move his dunnage in place. Norris testified that his eyes were on the arbor-which he contends was motionless-and that he did not see Howard fall. At some point, while Norris was watching the arbor suspended over the trailer, he saw Howard’s feet moving in his peripheral vision. Norris testified that when he saw Howard’s feet underneath the arbor, he hit the emergency stop. According to Norris, he hit E-stop even though the arbor was motionless just to verify that it would not move anymore. One or two seconds later Norris heard Summers shout but is not sure what he said. Norris realized that Howard fell when Summers told him so. Then, he went around the trailer to where Howard had fallen. According to Norris, Howard stated that the crane operator knocked him off. Norris did not object to the statement at the time, given the circumstances, but testified at trial that he did not knock Howard off the trailer.
Summers testified that when Norris finished positioning the arbor above the trailer, he saw Howard pick up his dunnage, which was lying at the front of the trailer, and begin to drag it toward the rear of the trailer. Summers previously thought that Howard would position his dunnage from the ground by reaching up onto the trailer. Howard needed to position the dunnage perpendicular to the edge of the trailer, which would require him to place it directly under the suspended arbor. Summers admitted that it was unsafe to attempt to position the dunnage in such a manner, but he did not say anything to Howard. When Howard started moving toward the arbor, Summers looked at Norris for a couple seconds to make sure he hit the E-stop. Summers wanted to verify that the crane was not moving, in case anything happened. When Summers looked back toward Howard, he saw Howard’s feet getting closer to the edge as Howard walked sideways down the length of the trailer. Summers shouted to watch out and then saw Howard’s hands fly up as he stepped off the trailer. Summers went around to check on Howard, who stated that the crane operator knocked him off. Summers did not argue because he knew Howard was in pain.
According to Howard, Norris used the crane to position the arbor over the trailer at the appropriate point relative to the trailer’s length but then moved the arbor over to the side, away from the trailer, so that Howard could position the dunnage. Then, he grabbed the dunnage, which was laying at the front of the trailer, held one end at waist-level and dragged it toward the rear of the trailer. At some point, it began to feel heavy, snapped out of his hands, and he fell backward. Howard landed on his foot. He pulled himself up, looked over the trailer, saw the arbor suspended over the dunnage, and then collapsed. Howard testified that he was surprised because the arbor had been over to the side of the trailer when he began to move the dunnage and he had not seen it move back to a point above the trailer. According to Howard, Norris came to him and said that he had fallen from the trailer and Howard replied: “No, I didn’t. The crane operator knocked me off.” During the trial, Howard pointed to Norris, identifying him as the Nucor employee who suggested that he fell off the trailer.
Ed Cable-a Nucor supervisor-interviewed Norris and Summers and prepared an incident report after Howard’s fall in which he recorded that a cause of or a contributing factor to the accident was that Howard was not wearing a reflective vest. The purpose of a reflective vest is to be seen clearly. Howard’s not wearing a reflective vest could have contributed to or caused the accident only if Norris did not see Howard dragging the dunnage down the trailer and therefore engaged the crane to move the arbor. Cable testified that the consensus among the employees on the scene at the time of the accident, i.e., Norris and Summers, was that Nucor had knocked Howard off the trailer.
In short, the most compelling evidence was the immediate reaction of the three persons who were present at the time of the accident. It is undisputed that Howard’s immediate, unpremeditated, spontaneous reaction was that the crane operator knocked him off the trailer. Likewise-according to Cable-Norris and Summers believed immediately after the accident that Nucor had knocked Howard off the trailer-hence his report that the absence of a reflective vest contributed to or caused the accident. Based on the immediate perception of every participant in the accident at the time it occurred, the jury was entitled to believe that movement of the crane knocked Howard off the trailer.
Despite this compelling evidence, Nucor argues that it was impossible for a movement of the crane to have knocked Howard off the trailer. That argument is based upon estimates by Howard as to how far he had dragged the dunnage from the front of the trailer toward the back before he fell off and where the arbor had been located vis-a-vis the front and rear of the trailer. Using those estimates, Nucor argues that it was impossible for the accident to have occurred in the manner that Howard said. The jury was not limited to considering Howard’s testimony. Rather, the jury was entitled to consider all of the evidence, including the admission by Cable that Nucor’s employees at the scene thought that Nucor had knocked Howard off the trailer. Furthermore, according to Norris, he saw Howard’s feet under the arbor, hit the emergency stop, and almost immediately thereafter heard Summers yell in relation to Howard’s fall. Based on that testimony, the jury could have concluded that Howard had not dragged the dunnage past the arbor when he fell from the trailer. Rather, based on Norris’ testimony, the jury reasonably could have concluded that Howard was adjacent to the arbor when he fell. In addition, Howard testified that when he began dragging the dunnage from the front of the trailer toward the rear, the arbor had been moved to the side and was no longer above the trailer. According to Norris and Summers, when Howard fell, the arbor was directly above ...