                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-2003

Howard v. NJ Transit Rail
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2358




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Recommended Citation
"Howard v. NJ Transit Rail" (2003). 2003 Decisions. Paper 178.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/178


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                                                                NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No: 02-2358
                                     ____________

                                  JAMES HOWARD,

                                            Appellant

                                             v.

                          NEW JERSEY TRANSIT RAIL
                      OPERATIONS, INC.; RICHARD GAROTS



                      Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Civil Action No. 99-CV-02915)
                       District Judge: Honorable John W. Bissell
                                 ___________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   on June 17, 2003

                 Before: ALITO, ROTH, and HALL* , Circuit Judges

                             Opinion filed October 29, 2003




__________________

        *The Hon. Cynthia H. Hall, Circuit Judge for the United States Court of Appeals
for the Ninth Circuit, sitting by designation.
ROTH, Circuit Judge;

       James Howard brought suit in the United States District Court for the District of

New Jersey against his employer, New Jersey Transit, Inc., and a co-employee, Richard

Garots, under the Federal Employer’s Liability Act (FELA), 45 U.S.C. § 51. Howard

claimed that he was assaulted by Garots and two non-employees and that New Jersey

Transit’s negligence was a cause of the assault because it did not enforce its no-

trespassing policy and other Transit employees did not warn Howard of the assault.

       A jury trial was held and the jury found no negligence. Howard’s motion for new

trial was denied and Howard appealed.1

       Howard claims on appeal that the verdict was against the weight of the evidence

and for that reason it was error to deny his motion for a new trial. He also claims that the

District Court erred in denying his request to charge the jury on respondeat superior and

violent propensity.

       Our review of the record convinces us that the verdict is sufficiently supported by

the evidence. For that reason, the District Court acted within its discretion in denying the

motion for new trial. See Williamson v. Consolidated Railroad Corp., 926 F.2d 1344,

1353 (3d Cir. 1991).

       As for the jury charge, the District Court instructed the jury, pursuant to the FELA,



       1
          The District Court had entered a default judgment against Garots to resolve all
claims.

                                               2
that the employer was directly liable for the negligence of its employees and that the

employer had a duty to protect its employees against reasonably foreseeable intentional or

criminal conduct. The denial of the respondeat superior and violent propensity charges

did not, therefore, materially prejudice Howard. The direct negligence charge is in fact

an easier standard than respondeat superior for the plaintiff to meet. See Brooks v.

Washington Terminal Co., 593 F.2d 1285, 1288 (D.C. Cir. 1979). We note, moreover,

that Howard did not raise the denial of the violent propensity charge in his motion for a

new trial and for that reason we will not consider it on this appeal. See Appalachian

States Low-Level Radio Waste Commission, 126 F.3d 193, 196 (3d Cir. 1997).

       For the above reasons, we will affirm the judgment of the District Court.




TO THE CLERK:

       Please file the foregoing Opinion.



                                            By the Court,



                                              /s/ JANE R. ROTH
                                              Circuit Judge




                                              3
