[Cite as Herman v. Norfolk S. Ry., Co., 2025-Ohio-1498.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
DREW HERMAN, CASE NO. 2024-A-0042
Plaintiff-Appellant, Civil Appeal from the - vs - Court of Common Pleas
NORFOLK SOUTHERN RAILWAY COMPANY, Trial Court No. 2023 CV 00022
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Decided: April 25, 2025 Judgment: Affirmed
Nicholas D. Thompson and Michael T. Rapier, Casey Jones Law Firm, 323 North Washington Avenue, Suite 200, Minneapolis, MN 55401 (For Plaintiff-Appellant).
Joseph J. Santoro, Christopher D. Glass, Richard C. O. Rezie, and Phillip T. Kelly, Gallagher Sharp, LLP, 1215 Superior Avenue, 7th Floor, Cleveland, OH 44114 (For Defendant-Appellee).
ROBERT J. PATTON, P.J.
{¶1} Plaintiff-appellant, Drew Herman, (“Herman”), appeals from the verdict
finding in favor of defendant-appellee, Norfolk Southern Railway Company (“Norfolk
Southern”), and the decision of the Ashtabula County Court of Common Pleas denying a
motion for new trial. For the following reasons, we affirm.
{¶2} Herman argues that the trial court’s jury instructions were incomplete and
misled the jury regarding Herman’s burden of proof on his Federal Employers’ Liability
Act (“FELA”) claim against Norfolk Southern. Specifically, Herman posits that the trial court’s instructions were confusing because the written instructions suggest that
Herman’s own negligence could mitigate Norfolk Southern’s liability under FELA. Herman
also argues that the trial court should have clarified that assumption of risk and
contributory negligence were different.
{¶3} Upon review of the entire jury charge, we conclude that the jury instructions
accurately reflect the appropriate standard under FELA. The jury instructions did not
suggest that Herman’s negligence could have mitigated Norfolk Southern’s liability in any
way. It is clear from the instructions that a finding of any negligence, in whole or in part,
by Norfolk Southern, would lead to a determination of liability if Herman could establish
that Norfolk Southern’s negligence caused his injuries. The jury did not consider
contributory negligence in this case because the jury concluded that Norfolk Southern
was not negligent.
{¶4} As the jury instructions accurately reflect the standard of a FELA claim, the
judgment of the Ashtabula County Court of Common Pleas is affirmed.
Substantive and Procedural Facts
{¶5} On September 21, 2022, Herman filed a complaint in the Cuyahoga County
Court of Common Pleas against Norfolk Southern after Herman sustained injuries while
working on the railroad as an employee of Norfolk Southern. The complaint alleged
Norfolk Southern was negligent and claimed Herman was entitled to relief under FELA,
the Federal Safety Appliance Act (“SAA”), and the Federal Locomotive Inspection Act
(“LIA”). Norfolk Southern filed its Answer to the Complaint on December 21, 2022.
PAGE 2 OF 24
Case No. 2024-A-0042 {¶6} The parties jointly requested to transfer the case to the Ashtabula County
Court of Common Pleas. The case was transferred on January 5, 2023, and filed on
January 17, 2023.
{¶7} On December 15, 2023, the parties submitted a joint stipulation that neither
the LIA nor the SAA apply to this case. The Plaintiff voluntarily dismissed the LIA and
SAA claims with prejudice.
{¶8} After exchanging routine pretrial motions and numerous motions in limine,
Norfolk Southern filed its proposed jury instructions and proposed interrogatories on
March 4, 2024. While there is no notation on the docket that Herman filed proposed
instructions or interrogatories, the trial court stated on the record during the trial that
Herman did provide a copy of his proposed instructions to the trial court and that the
proposed instructions were different from those submitted by Norfolk Southern. Dkt. 78,
T.p. Trial Transcript, p. 661. Because the proposed instructions were not filed in the court
below, the proposals are not part of the record on appeal.
Trial
{¶9} The case proceeded to a four-day jury trial on March 12, 2024. As Herman’s
assignment of error relates solely to jury instructions, a full recitation of the testimony
presented is unnecessary. However, the Court provides the following summation of some
of the testimony presented to the jury.
{¶10} At trial, several witnesses offered testimony about the process of replacing
railroad ties. According to the testimony, after identifying the ties that needed to be
replaced, the laborers would remove the spikes and anchors. The backhoe operator then
prepared the new ties. Once the laborers prepared the old tie for removal, the laborers
PAGE 3 OF 24
Case No. 2024-A-0042 would move “in the clear,” or “outside the red zone.” The red zone is the area within the
swing radius of the backhoe. Laborers would move outside the red zone prior to the
backhoe operator using or maneuvering the backhoe to remove the old tie and would
remain there until the backhoe operator finished. Once finished, the backhoe operator
would signal to the laborers that it is safe to reenter the work area or red zone. The
laborers then returned to clear out any residual debris from the removal of the tie. Once
the debris was cleared out, the laborers would again exit the red zone. Once clear, the
backhoe operator would use the mechanical thumb and bucket on the backhoe to pick up
the new tie and put it in place on the track. When completed, the backhoe operator would
once again signal to the laborers so that they may safely return to the red zone to replace
the plate and spikes.
{¶11} Occasionally, during this process, after the backhoe operator placed the
new tie, the new tie will be too tight to the rail making it difficult to replace the plate. This
was referred to as a hard-up tie. According to the testimony, when a backhoe operator
encounters a hard-up tie, the operator would need to “crib the tie” to create space or room
for the tie and plate. One method of relieving a hard-up tie required the backhoe operator
to remove the tie and dig out the area deeper. Another method involved using the backhoe
bucket to put pressure on or push down on the tie to create the space for the plate.
{¶12} At trial, the parties agreed that the operation of a backhoe fell under Norfolk
Southern’s Railway Worker Protection Manual Rule 818 which requires that machines
must maintain 25 feet of separation from other machines, employees or equipment
working in the foul of the track. However, machines may work within the 25 feet limit when
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Case No. 2024-A-0042 necessary. In order to do so, a job briefing must be held so that “all involved have a clear
understanding of the movements to be made.”
{¶13} As noted above, Herman was an employee of Norfolk Southern and was
working as a trackman in Norfolk Southern’s Conneaut Yard in Ashtabula County, Ohio.
On October 1, 2019, Herman, RJ Johnston (“RJ”), Tyler Miller (“Miller”), and Gregory
Weddle (“Weddle”) were working together at Conneaut Yard pulling spikes and replacing
ties. Weddle was the backhoe operator. It is undisputed that the group came upon a hard-
up tie. Herman testified that he signaled to Weddle to let him know there was a hard-up
tie.
{¶14} According to Weddle, upon learning of the hard-up tie, he held a job briefing
with the laborers, including Herman, so the workers were aware of the plan to make a
minor adjustment on the tie with the backhoe. Weddle testified that he planned to push
down on the tie to create space for the plate. According to Weddle, he had previously
used this method numerous times, and he considered it to be safe. He further said that
the laborers, including Herman, were instructed to stay in the clear.
{¶15} RJ testified for the defense, and stated that Weddle held a job briefing
before adjusting the tie and Weddle instructed them to stay in the clear or stay outside
the swing radius of the backhoe. RJ said that he was within the 25 feet of the machine,
but that he was outside of the foul line. In other words, RJ testified that he was outside
the swing radius of the backhoe because he was behind the backhoe. RJ stated that if
“Drew was going into the line of fire, he should have notified the operator, and he should
not have gone into movement until he had eye contact and the operator took his hands
off the control.” Dkt. 78, T.p. Trial Transcript, p. 767.
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Case No. 2024-A-0042 {¶16} Weddle indicated that he did not begin to manipulate the tie until the
laborers, including Herman, were in the clear or outside the swing radius of the backhoe.
According to Weddle, when he was attempting to adjust the hard-up tie, the thumb of the
backhoe caught the turnout side of the rail and the bucket slid down the rail. Weddle
testified as soon as the bucket got stuck on the rail, he took his hands off the backhoe’s
controls. However, after the bucket got stuck on the rail, the bucket slid down the rail, and
it knocked into Herman.
{¶17} Weddle testified Herman was outside the radius and that he did not see
Herman signal to him to enter the radius or see Herman enter the radius. According to
Weddle, the workers remain in the clear until the operator acknowledges them and
informs the workers that they can return to the area. While Herman alleged that he waved
to Weddle to come into the red zone, there is no indication that Weddle acknowledged
Herman’s wave.
{¶18} Herman disputed that a briefing was held prior to Weddle adjusting the tie.
Herman testified that he worked closer to the backhoe and that he did not move from the
time Weddle began the maneuver until he was struck. Herman said that he was knocked
over and his left elbow and forearm landed on the rails. Herman admitted he thought he
was standing too close to the backhoe.
{¶19} Alan Pagels (“Pagels”), a railroad safety consultant, testified on behalf of
Herman. After reviewing documents including statements from Herman and other
employees, and photographs, Pagels opined that Norfolk Southern did not comply with
Rule 818. He believed that the employees did not know the swing radius of the backhoe.
According to Pagels, the employees should be made aware of the radius during the
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Case No. 2024-A-0042 briefing. Pagels testified that he did not believe there was any reason to be within 25 feet
of the backhoe on the date of Herman’s injury. Pagels stated that the backhoe operator
did not have sufficient training and that the backhoe operator was responsible for the
injuries Herman sustained. However, Pagels also concluded that Norfolk Southern had
no duty to warn Herman about the unknown occurrence of the thumb of the backhoe
catching the rail.
{¶20} After the incident, Herman was taken to the Conneaut Medical Center
Emergency Room. Jason Dello (“Dello”), a track supervisor for Norfolk Southern, was
notified that an employee was injured on the job. Dello went to Conneaut Medical Center
and met Herman at the hospital. Herman was diagnosed with an elbow contusion, and
he was released to return to work immediately without restrictions. There was no notation
or mention that appellant complained of any shoulder discomfort or injury during the visit.
Upon returning to Conneaut Yard, Dello took the statements of everyone involved in the
incident.
{¶21} Herman returned to work the following day, October 2, 2019. That morning,
Herman, Weddle, and Dello met with Dello’s boss, Mr. Kronewitter. The group reviewed
the incident and discussed Rule 818. No fault was assigned, and no disciplinary action
was taken regarding the incident.
{¶22} On October 4, 2019, three days after the incident, Herman went to the
Ashtabula County Medical Center with complaints of left elbow discomfort. Herman did
not complain about shoulder pain. Herman was informed that he had an elbow sprain,
was advised to rest, and was told to come back in two weeks. Herman returned to work
on October 12, 2019. Herman did not follow up with any medical provider after two weeks.
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Case No. 2024-A-0042 Herman continued to work as a trackman with no restrictions until he was eventually
furloughed for non-medical reasons on February 25, 2020. RJ testified that he worked
with Herman after the incident and that he did not complain about any pain and did his
usual job.
{¶23} After being furloughed, and nearly five months after the injury, Herman
returned to the doctor to be evaluated again for left elbow pain. He was referred to
physical/occupational therapy. He went to two physical therapy sessions.
{¶24} In medical documents, the first mention of shoulder pain by Herman
occurred in August 2020, approximately nine months after the incident. Herman received
some additional imaging, including an MRI of his left shoulder. The imaging showed a
torn labrum, also known as a SLAP lesion, in the shoulder. In other words, the shoulder
had a small muscle tear. Herman eventually had surgery to repair the shoulder on
November 18, 2020. There was some testimony which suggested that the SLAP lesion
was not properly treated. Herman later had surgery on his elbow on May 14, 2021.
{¶25} Despite surgery and therapy, Herman testified he remains in pain and has
physical restrictions. Herman also worked several other jobs with varying degrees of
physical requirements since he was furloughed by Norfolk Southern. As of the date of the
trial, Herman was not treating any of the claimed injuries and had not been to a medical
provider to treat the injuries for nearly two years.
{¶26} Dr. Kevin Trangle M.D. (“Dr. Trangle”), a medical consultant who did not
treat Herman, testified on Herman’s behalf. According to Dr. Trangle, the injuries to
Herman’s shoulder and elbow were a result of the October 1, 2019 incident at Conneaut
Yard. Dr. Trangle stated that when Herman fell onto the tracks on his arm, the force of
PAGE 8 OF 24
Case No. 2024-A-0042 the fall traveled up the arm, into the shoulder, and caused the SLAP lesion or labrum tear.
Dr. Trangle also said the injury would not heal without additional medical intervention. Dr.
Trangle opined the injuries would be limiting to Herman and that Herman could not return
to weightlifting or being a trackman for the railroad with the injury. Dr. Trangle further
opined that Herman did not receive this injury from weightlifting. According to Dr. Trangle,
additional surgeries would be needed to repair the tear, and that without surgery, the tear
will get worse over time. Dr. Trangle recommended that Herman refrain from lifting
anything heavier than 25 pounds.
{¶27} The defense called Dr. James Brodell (“Dr. Brodell”), an orthopedic
surgeon. Dr. Brodell reviewed the medical records in this case and also examined
Herman prior to trial on January 10, 2024. According to Dr. Brodell, SLAP lesions are
common occurrences. The lesions happen from repetitive use and can be asymptomatic.
Dr. Brodell testified that weightlifting is a common cause for SLAP lesions in the shoulder.
{¶28} Dr. Brodell opined that Herman’s shoulder complaints were not related to
the October 1, 2019 incident at Norfolk Southern. He further said that the elbow injury or
resulting carpal tunnel was unrelated to the railroad incident because Herman had several
risk factors for developing carpal tunnel. Upon his exam of Herman, Dr. Brodell concluded
that neither the lifting restrictions nor future surgical intervention were needed.
Verdict
{¶29} On March 15, 2024, the jury found in favor of Norfolk Southern on Herman’s
FELA claim. Because the jury did not find from a preponderance of the evidence that
Norfolk Southern was negligent, the jury did not consider any issues of fact, including
causation, contributory negligence, if any, or calculate damages.
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Case No. 2024-A-0042 Motion for New Trial
{¶30} On March 19, 2024, Herman filed a motion for new trial pursuant to Civ.R.
59. Herman alleged in his motion that the jury’s verdict in favor of Norfolk Southern was
“not sustained by the weight of the evidence.” Herman’s motion also alleged that Norfolk
Southern’s negligence was undisputed and therefore, Herman’s injuries were
foreseeable. Norfolk Southern filed a brief in opposition to Herman’s motion for new trial
on April 1, 2024.
{¶31} The trial court denied the motion on April 3, 2024. Specifically, the trial court
concluded that “over the course of four days, Norfolk Southern presented ample,
competent, credible evidence that it was not negligent. The trial court also noted in its
entry that “Herman did not object to the jury instruction on negligence, and he does not
now argue that the jury instruction which was given creates a basis for a new trial.”
Appeal
{¶32} Appellant timely appeals and raises a single assignment of error for our
review: “The trial court erred in providing jury instructions that misstated and incompletely
stated the law under the Federal Employer’s Liability Act (‘FELA’).” Specifically, appellant
argues that the trial court’s instructions misled the jury as to Herman’s burden under FELA
and that the trial court erred by failing to include an assumption of risk jury instruction.
We disagree.
Jurisdiction
{¶33} Before turning to Herman’s assignment of error, it is necessary to address
Norfolk Southern’s claim that this Court lacks jurisdiction to hear the appeal. Specifically,
Norfolk Southern argues that Herman’s notice of appeal has not been properly filed.
PAGE 10 OF 24
Case No. 2024-A-0042 {¶34} On May 21, 2024, Norfolk Southern filed a motion to dismiss the appeal
pursuant to App.R. 4(B)(2) and App.R. 15(A). Norfolk Southern argued that Herman’s
appeal was untimely filed. On June 3, 2024, after review of Norfolk Southern’s motion
and Herman’s response, this Court denied the motion to dismiss and found the notice of
appeal was timely filed.
{¶35} Norfolk Southern filed an application for reconsideration of that decision and
a renewed motion to dismiss on June 12, 2024. In this motion, Norfolk Southern asserted
that a valid notice of appeal had not been filed because Herman fax-filed his notice of
appeal. This is the same claim Norfolk Southern raises in its Answer Brief.
{¶36} This Court granted Norfolk Southern’s application for reconsideration as to
the Court’s misapplication of App.R. 4(A)(3). However, the Court denied Norfolk
Southern’s motion because the time-stamp placed on the document by the Ashtabula
County Clerk of Courts was inaccurate. Specifically, this Court noted “the date/time
stamped [sic] produced by the Clerk’s fax machine shall constitute the date/time stamp
of the Clerk.” Ashtabula County Court of Common Pleas Local Rule 3.1. Therefore, the
notice of appeal was deemed filed and time-stamped on May 3, 2024, based on the date
and time printed by the fax machine. Again, this Court denied Norfolk Southern’s motion
and determined that the notice of appeal was timely filed. This Court did not address
Norfolk Southern’s claim that the filing method employed by Herman was defective.
{¶37} In its Answer Brief, Norfolk Southern relies upon Louden v. A.O. Smith
Corp., 2009-Ohio-319, in support of its claim that this Court lacks jurisdiction to hear this
appeal. In Louden, the Supreme Court of Ohio held, “that unless a local rule of the
appellate court, properly approved under Sup.R. 27, expressly permits filing of a notice
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Case No. 2024-A-0042 of appeal by electronic means, a party appealing a trial court order must file a paper copy
of the notice of appeal with the clerk of the trial court pursuant to App.R. 3.” Id. at ¶ 32.
Notably, Louden involved a trial court order, which instructed parties to submit the filings
to the appellate court via electronic means, where the appellate court did not expressly
permit electronic filing in its local rules. In other words, the Supreme Court of Ohio
concluded that a trial court could not dictate the method of filing for the appellate court.
Louden is distinguishable from this case.
{¶38} Loc.R. 3(A) provides:
The Clerks of the Courts of Common Pleas of the counties of Ashtabula, Geauga, Lake, Portage, and Trumbull serve as the Clerk of this Court of Appeals in their respective counties. All documents required to be filed in this court shall be filed with the Clerk of the Court of Appeals of the county in which the appeal or original action originated. Documents submitted directly to this court at its headquarters in Warren will not be considered filed, either when mailed or when received.
An e-mail to the clerk of courts shall not be considered a proper motion, brief, or other pleading to this court for filing. If e-mail is an accepted form of delivery to the clerk, any motions, briefs, or other pleading that is e-mailed to the clerk for filing shall be in the form of a separate attachment to that e-mail.
{¶39} This rule, as written, recognizes that the clerks of the individual counties
can determine what is an accepted form of delivery for documents submitted for filing.
{¶40} Norfolk Southern focuses on Loc.R. 5, electronic filing, which provides in
relevant part: “[f]or purposes of this rule, e-filing refers to the submission of documents
from litigants to a clerk of courts’ e-filing system in a digitized format pursuant to that clerk
of courts’ procedures and instructions, and does not include fax filings or e-mail filings.”
Subsection (A) of Loc.R. 5, further provides: “[t]he clerk of courts of each county within
PAGE 12 OF 24
Case No. 2024-A-0042 the jurisdiction of the Eleventh District Court of Appeals is authorized to implement an e-
filing system and prepare and maintain operating procedures and instructions for their e-
filing system. The clerk of courts’ operating procedures and instructions shall determine
the days and hours during which the e-filing system is available.”
{¶41} This Court hears appeals from five different counties. We recognize that
these counties have different electronic filing capabilities. Some counties have extensive
electronic filing capabilities, while others may not have a formal e-filing system in place.
In the interest of justice, this Court’s Local Rules expressly permit electronic filings and
afford the local clerks some flexibility in determining what, if any, electronic methods are
permissible based on their office’s capabilities.
{¶42} Loc.R. 5 pertains to filings submitted to the clerk through the clerk of court’s
e-filing system. This rule does not prohibit fax or email filings, rather it simply states that
that Loc.R. 5 is not applicable to those methods of filing. Further, because Ashtabula
County does not currently have an e-filing system, Loc.R. 5 does not apply here. Loc.R.
3 recognizes that email filings may be accepted, if email is an accepted form of delivery
of the clerk. Fax-filings should be treated similarly. Ashtabula County specifically
recognizes fax-filings as a permissible way to file certain pleadings in Ashtabula C.P.
Loc.R. 3.1 The Local Rules of this Court recognize and permit fax filings as an acceptable
method of filing because it is an accepted form of delivery of the clerk in Ashtabula
County.
{¶43} As such, we find that the notice of appeal was appropriately filed with the
Ashtabula County Clerk of Courts and that this Court has jurisdiction over this appeal.
PAGE 13 OF 24
Case No. 2024-A-0042 Waiver
{¶44} Another matter necessary to address is Norfolk Southern’s claim that
Herman has waived any claim as to certain jury instructions.
{¶45} Civ.R. 51(A) provides:
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies shall be furnished to all other parties at the time of making the requests. The court shall inform counsel of its proposed action on the requests prior to counsel's arguments to the jury and shall give the jury complete instructions after the arguments are completed. The court also may give some or all of its instructions to the jury prior to counsel's arguments. The court shall reduce its final instructions to writing or make an audio, electronic, or other recording of those instructions, provide at least one written copy or recording of those instructions to the jury for use during deliberations, and preserve those instructions for the record.
On appeal, a party may not assign as error the giving or the failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.
{¶46} There were no objections to verdict forms. However, both parties lodged
objections to the jury instructions, all of which were overruled. Herman objected to the
presentation of the FELA claim and asked the court to instruct the jury on the proposed
instruction provided by Herman. In the alternative, Herman asked to modify the instruction
by striking the portion of the instruction following the recitation of the elements of the
claim. Herman also sought to strike the entire causation section, and argued the
instruction regarding the mitigation of damages should be modified by excluding the
remaining test after the first bullet point. PAGE 14 OF 24
Case No. 2024-A-0042 {¶47} In his initial merit brief, Herman seemingly argues that the trial court failed
to instruct the jury on negligence per se; specifically, that the court below failed to explain
that a violation of the safety rules would constitute negligence. Herman’s Brief at 11.1
However, Herman did not object when reviewing the jury instructions with the trial court,
when the jury was instructed, or before the jury retired to deliberate despite an opportunity
to do so. Nor did Herman assert this claim in his motion for new trial. We also note, despite
Norfolk Southern’s concession that appellant raised an objection or requested an
instruction on assumption of risk, it is not apparent from the record before us. As such,
these claims were not raised in the court below and are therefore waived, but for plain
error.
{¶48} “A party whose request for jury instructions fails to comply with Civ.R. 51(A)
generally waives his right to question the trial court's charge upon appeal. Presley v.
Norwood (1973), 36 Ohio St.2d 29, paragraph two of syllabus. It is essential that a party
file proposed jury instructions with the court, making them part of the record. However,
even if no objection is made to a jury instruction when it should have been, an appellate
court can still reverse if it finds plain error.” Burk v. Enzo's of Elm Rd., Inc., 2000 WL
1734852, *3 (11th Dist. Nov. 17, 2000), citing State v. Getsy, 84 Ohio St.3d 180, 196
(1993); State v. Holley, 1999 WL 1313667, at *10 (11th Dist. Dec. 17, 1999).
{¶49} However, Herman does not argue plain error in his brief. The First Appellate
District aptly noted:
Although the Ohio Supreme Court recognized the possibility for plain error in the civil context, the court has made clear that the plain-error doctrine is disfavored in civil appeals. Goldfuss
1. Herman takes an about-face in his Reply Brief, wherein he alleges the mention of negligence per se was to highlight the liberal construction of FELA and that he was not arguing the trial court’s failure to provide an instruction on negligence per se. PAGE 15 OF 24
Case No. 2024-A-0042 v. Davidson, 79 Ohio St.3d 116, 122, 679 N.E.2d 1099 (1997). The Ohio Supreme Court directed that the plain-error doctrine should never be applied to reverse a civil judgment to allow litigation of issues which could easily have been raised before and determined by the trial court. Id. Instead, the court cautioned appellate courts to apply the doctrine only in “those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings.” Id. at 121.
Cable Busters, LLC v. Mosley, 2020-Ohio-3442, ¶ 6-7 (1st Dist.).
{¶50} The First District held: “[w]here the appellant in a civil case does not properly
invoke the plain-error doctrine, it cannot meet its burden on appeal and we will not sua
sponte undertake a plain-error analysis on its behalf.” Id. at ¶ 8, citing State v.
Quarterman, 2014-Ohio-4034, ¶ 19. In this case, neither a request for an instruction on
negligence per se on the grounds of a safety rule violation nor a request for an assumption
of risk instruction was argued by Herman in the court below. Therefore, the trial court
made no findings on Herman’s assertions.
{¶51} No exceptional circumstances exist in this case which would require the
application of the plain error doctrine “to prevent a manifest miscarriage of justice, and
where the error complained of, if left uncorrected, would have a material adverse effect
on the character of, and public confidence in, judicial proceedings.” Goldfuss, 79 Ohio
St.3d at 122. Because Herman “failed to sufficiently argue a claim of plain error, [he has]
forfeited the right to plain-error review on appeal.” See Cable Busters at ¶ 9. See also,
Chism v. Norfolk & W. Ry. Co., 1980 WL 354364, *6 (8th Dist. Jan. 4, 1980).
{¶52} Even if Herman invoked plain error review as to the lack of a jury instruction
on negligence per se or the lack of a detailed explanation reciting the differences of
PAGE 16 OF 24
Case No. 2024-A-0042 assumption of risk and contributory negligence, we find that the failure to include the
instructions does not rise to plain error.
{¶53} First, Herman alleges in his brief that violations of the safety rules
implemented by Norfolk Southern, rules which are required by the Federal Railroad
Administration (“FRA”), amount to negligence per se under FELA.
{¶54} The trial court instructed the jury regarding safety rules as follows:
In determining whether the Defendant was negligent, you may consider the evidence concerning the custom in the industry or safety rules. If you find there were sufficient customs or rules, they may indicate recognition of a hazard or the means to avoid it, which may indicate what may be reasonable in a given situation. However, you may find an industry custom safety rule does not reflect the level of care a reasonably prudent person would take, and the Defendant was negligent although an industry custom [or] safety rule was followed.
Even if you find Defendant violated or failed to enforce a safety rule or did not take customary precautions, such a violation or failure does not require a finding of negligence.
Before you may impose liability on Defendant, you must still find Defendant failed to exercise reasonable care under the circumstances.
Dkt. 79, T.p. Trial Transcript, p. 1150-1151.
{¶55} Herman acquiesced to this instruction regarding the safety rules. At trial,
Norfolk Southern sought an additional instruction that the same standard regarding the
violations of the safety rules and taking precautions should also apply to Herman.
Herman’s counsel said that the instruction was proper as written. Dkt. 79, T.p. Trial
Transcript, p. 1045, 1047. Herman did not ask for any additional language included that
violations of Norfolk Southern’s rules were equivalent to negligence per se under FELA.
{¶56} Because Herman failed to seek a negligence per se instruction, it is waived.
PAGE 17 OF 24
Case No. 2024-A-0042 {¶57} Further, the jury ultimately found Norfolk Southern was not negligent and
thus, the jury did not consider assumption of risk or contributory negligence.
Jury Instructions
{¶58} Before addressing the merits of Herman’s assignment of error, we must first
address the appropriate standard of review. Herman argues that this Court should
undertake a de novo review. Norfolk Southern, on the other hand, states that an abuse
of discretion standard of review should apply.
{¶59} “A trial court must give jury instructions that correctly and completely state
the law. Sharp v. Norfolk & W. Ry. Co. (1995), 72 Ohio St.3d 307, 312, 649 N.E.2d 1219,
citing Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12, 19 OBR 8, 482 N.E.2d 583. An
inadequate jury instruction that misleads the jury constitutes reversible error. Id.” Groob
v. KeyBank, 2006-Ohio-1189, ¶ 32.
{¶60} The Ninth Appellate District has stated:
“The question of whether a jury instruction is legally correct and factually warranted is subject to de novo review.” Cromer v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 29 N.E.3d 921, 2015–Ohio–229, ¶ 22, citing Estate of Hall at ¶ 26. However, a “trial court has discretion to decide to give or refuse a particular jury instruction, and an appellate court will not disturb that decision absent an abuse of discretion.” Clark v. Grant Med. Ctr., 10th Dist. Franklin No. 14AP–833, 2015–Ohio–4958, ¶ 50, citing Columbus Steel Castings Co. v. Alliance Castings Co., LLC, 10th Dist. Franklin No. 11AP– 351, 2011–Ohio–6826, ¶ 15. An “abuse of discretion” connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Roberts v. Falls Family Practice, Inc., 2016-Ohio-7589, ¶ 16 (9th Dist.).
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Case No. 2024-A-0042 {¶61} This Court, in Cobb v. Shipman, 2015-Ohio-2604, ¶ 96 (11th Dist.)
announced:
A jury instruction is proper if it correctly states the law and if it applies in light of the evidence adduced in the case. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, * * * (1991). The precise language of a jury instruction, however, is within the discretion of the trial court. Youssef v. Parr, Inc., 69 Ohio App.3d 679, 690, * * * (8th Dist.1990), citing State v. Scott, 41 Ohio App.3d 313, * * * (8th Dist.1987). Therefore, when reviewing a trial court's jury instructions, the proper standard of review for an appellate court is abuse of discretion. Harris v. Noveon, Inc., 8th Dist. Cuyahoga No. 93122, 2010-Ohio- 674 [2010 WL 669788], ¶ 20, citing Chambers v. Admr., Ohio Bur. of Workers' Comp., 164 Ohio App.3d 397, 2005-Ohio- 6086, * * * (9th Dist).” (Parallel citations omitted.) McQueen v. Greulich, 8th Dist. Cuyahoga No. 100544, 2014-Ohio-3714, 2014 WL 4244300, ¶ 19.
{¶62} Herman asserts in his brief that the trial court failed to provide accurate and
complete jury instructions regarding his FELA claims. Because Herman alleges that the
instruction is incorrect and misstates the applicable law under FELA, we will review the
entire charge de novo to determine whether the instruction correctly states the law. 2
However, as discussed below, when addressing the precise language the trial court used
in its instructions, and the refusal to adopt Herman’s proposed language, those claims
will be reviewed for an abuse of discretion.
FELA
{¶63} In his sole assignment of error, Herman alleges that the jury instructions
misled the jury, causing them to determine Norfolk Southern was not negligent. Upon
review of the entire charge, we disagree.
2. We recognize that Herman also provided certain jury instruction language to the trial court; however, the proposed instructions are not part of the record on appeal. When considering the trial court’s denial or refusal to adopt the language proposed by Herman, we would review the trial court’s decision for an abuse of discretion if we had the record before us to do so. PAGE 19 OF 24
Case No. 2024-A-0042 {¶64} FELA is “a ‘broad remedial statute’ to assist railroad employees when an
employer's negligence causes injury.” Shepard v. Grand Trunk W. R.R. Inc., 2010-Ohio-
1853, ¶ 11-12 (8th Dist.), quoting Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S.
557, 561-62 (1987). “The FELA is a ‘response to the special needs of railroad workers
who are daily exposed to the risks inherent in railroad work and are helpless to provide
adequately for their own safety.’” Id., quoting Sinkler v. Missouri Pacific RR. Co., 356 U.S.
326, 329 (1958). “The Act is intended to be read liberally in favor of injured railroad
employees.” Id., citing Urie v. Thompson, 337 U.S. 163, 180 (1949).
{¶65} State and federal courts have concurrent jurisdiction over FELA claims;
however, federal law governs these claims. See, Norfolk Southern Ry. Co. v. Sorrell, 549
U.S. 158, 165 (2007) citing 45 U.S.C. 56. Therefore, when FELA cases are presented in
state court, the state’s procedural rules will apply, “but the substantive law governing them
is federal.” Taylor v. Norfolk Southern Ry. Co., 2020-Ohio-2657, ¶ 9 (6th Dist.), citing
Vance v. Consol. Rail Corp., 73 Ohio St.3d 222, 227 (1995).
{¶66} “FELA provides, ‘Every common carrier by railroad while engaging in
commerce * * *, shall be liable in damages to any person suffering injury while he is
employed by such carrier in such commerce, * * * for such injury * * * resulting in whole
or in part from the negligence of any of the officers, agents, or employees of such carrier
* * *.’ 45 U.S.C. 51.” Taylor, at ¶ 7.
{¶67} The trial court used this language in the jury instructions. Dkt. 79, Tp. Trial
Transcript, p. 1146. Directly thereafter, the trial court appropriately discussed the
elements of the FELA claim:
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Case No. 2024-A-0042 In order to find Defendant, Norfolk Southern, liable for the Plaintiff under FELA statute, you must find by a preponderance of the evidence that:
The Defendant or one of its employees or agents was negligent;
The Defendant’s negligence, if any, was a cause in whole or in part of the Plaintiff’s injuries.
The Plaintiff must prove each of these elements by a preponderance of the evidence. If you find that the Plaintiff failed to prove each element by a preponderance of the evidence, your verdict must be for the Defendant. Only if you find that the Plaintiff has established each element by a preponderance of the evidence may you consider the question of damages.
(Emphasis added.) Dkt. 79, T.p. Trial Transcript, p. 1146-1147.
{¶68} The trial court correctly and completely stated the law under FELA.
{¶69} Herman next argues that the jury instructions were confusing as the
instructions created the impression that Herman’s own negligence could mitigate Norfolk
Southern’s negligence. Specifically, Herman argues that any mention of contributory
negligence, outside of the damages section of the jury instructions, improperly suggested
that the jury could consider Herman’s contributory negligence when determining liability
under FELA.
{¶70} Upon review, there was no confusion in the instructions regarding the
determination of liability. Any discussion about offsetting any negligence by Norfolk
Southern or mention of Herman’s own possible negligence was related to the calculation
of damages. The jury did not reach the issue of damages, as it determined that Norfolk
Southern was not negligent.
PAGE 21 OF 24
Case No. 2024-A-0042 {¶71} Herman next argues that the trial court should have provided an instruction
distinguishing contributory negligence from assumption of risk. Appellant posits that “the
[trial] court’s misleading contributory negligence instruction and but-for causation
instruction, coupled with the absence of a clarifying assumption of risk instruction, created
further confusion as to the law under the FELA.” The only mention of the term “assumption
of risk” was raised by Herman’s counsel in closing arguments.
{¶72} Because the jury determined Norfolk Southern was not negligent at all, the
jury did not consider causation. In other words, the jury did not reach assumption of risk
or contributory negligence. Therefore, even if the trial court was required to provide an
instruction on assumption of risk, which is not supported by the record in this case, the
failure to do so was harmless in this instance as it did not affect Herman’s substantial
rights. Seeley v. Rahe, 16 Ohio St.3d 25, 27 (1985). See also, Parusel v. Ewry, 2004-
Ohio-404, ¶ 81 (6th Dist.) (“Since both of the instructions of which appellant complains go
to apportionment of negligence or damages and the jury returned an interrogatory finding
that appellee was not negligent, the jury would never have needed to reach these issues.
As a result, any error in instructing on these issues could not have prejudiced appellee.
Consequently, any purported error was necessarily harmless.”).
{¶73} Upon review of the entire jury charge, the trial court properly instructed the
jury. The trial court’s instructions appropriately discussed the claim and conveyed that
any negligence, “in whole or in part,” by Norfolk Southern was sufficient to meet the
standard under FELA, provided Herman also showed that the negligence caused the
injury. We therefore conclude the instructions, as given by the trial court, did not mislead
the jury in a manner affecting Herman’s substantial rights.
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Case No. 2024-A-0042 {¶74} As such, Herman’s sole assignment of error is without merit.
Conclusion
{¶75} For the reasons set forth above, the judgment of the Ashtabula County
Court of Common Pleas is affirmed.
MATT LYNCH, J.,
EUGENE A. LUCCI, J.,
concur.
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Case No. 2024-A-0042 JUDGMENT ENTRY
For the reasons stated in the opinion of this court, appellant’s assignment of error
is without merit. It is the judgment and order of this court that the judgment of the
Ashtabula County Court of Common Pleas is affirmed.
Costs to be taxed against appellant.
PRESIDING JUDGE ROBERT J. PATTON
JUDGE MATT LYNCH, concurs
JUDGE EUGENE A. LUCCI, concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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Case No. 2024-A-0042