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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2010-157 ALFRED OCASIO v. FEDERAL EXPRESS CORPORATION Argued: April 13, 2011 Opinion Issued: September 22, 2011 Winer and Bennett, LLP, of Nashua (Peter G. Webb on the brief, and John V. Dwyer, Jr. orally), for the plaintiff. Desmarais, Ewing & Johnston, PLLC, of Manchester (David Johnston and Heather G. Silverstein on the brief, and Mr. Johnston orally), for the defendant. CONBOY, J. In this personal injury case, the plaintiff, Alfred Ocasio, appeals the entry of judgment in favor of the defendant, Federal Express Corporation (FedEx). He argues that the Trial Court (Barry, J.) erred when it allowed the jury to apportion fault to his employer, the United States Postal Service (USPS), and when, despite the jury's $1,445,700 verdict in his favor, it entered judgment for FedEx after comparing the fault allocated to him to the fault allocated to FedEx. See RSA 507:7-d, :7-e (2010). We hold that while it was not error to allow the jury to apportion fault to the USPS, it was error to

deny the plaintiff any recovery against FedEx. We, thus, affirm in part, reverse in part, and remand. I. Background A. The Accident The jury could have found the following facts. The plaintiff was a mail handler for the USPS. His job included pulling, by hand, large canisters filled with mail (air cans) from delivery tractor-trailer trucks. Ball bearings were affixed to the floor of the truck beds, as well as the floor of the loading dock, allowing the USPS employees to roll the air cans from the trucks onto the loading dock and into the USPS facility. The air cans typically weigh between 3,000 and 5,000 pounds. On February 17, 2002, the plaintiff was pulling air cans from a FedEx tractor-trailer truck when he accidentally stepped into and caught his leg in a gap between the rear of the truck and the loading dock. When the air can he had been pulling continued to roll toward him, the bones of his trapped leg were shattered. Although the plaintiff's leg was saved after reconstructive surgery, it is of limited use. He cannot stand or walk for very long and he cannot lift and carry heavy things. He has since lost his job at the USPS. B. Recovery Against USPS Due to his work-related accident, the plaintiff received benefits totaling approximately $80,353 under the Federal Employees' Compensation Act (the Federal Act). See 5 U.S.C.A.

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