Scott v. Briggs Way Co.

909 P.2d 345, 1996 Alas. LEXIS 6, 1996 WL 18446

• Court: Alaska Supreme Court
• Decided: January 19, 1996
• Docket: S-5842
• Status: Published

Opinions

OPINION

PER CURIAM.

I. INTRODUCTION

Emorene Briggs and Roger Briggs, doing business as Briggs Way Co., operate a set net fishing business. The Briggs employed Bruce Scott in June and July 1990 to work at their Ugashik River set net site as a maintenance person and crew member.¹ In June 1990 Scott and his co-worker, Ryan Connor, were working on land, moving set net buoys.² Scott was injured when the little finger on his right hand was crushed between a buoy and a forklift.

Scott filed a complaint against the Briggs in June 1992, seeking relief under principles of general negligence, the Jones Act, and maritime law. The superior court granted the Briggs’ motion for summary judgment.³ It awarded the Briggs $4,050 in attorney’s fees under Alaska Civil Rule 82. Scott appeals.

II. DISCUSSION

A. Negligence

Scott contends that the Briggs were negligent because of the foreseeable harm in moving set net buoys with a forklift. However, several material facts remain in dispute.⁴ Drawing all reasonable inferences in Scott’s favor, we conclude that there existed a genuine issue of material fact regarding the Briggs’ alleged negligence. Accordingly, we reverse summary judgment on the issue of the Briggs’ negligence.

B. Jones Act

Scott contends that he is a “seaman in the service of’ a vessel for the purposes of the Jones Act ⁵ and can maintain an action in negligence against the Briggs, his employers. The Briggs dispute the applicability of the Jones Act.

Both parties cite McDermott Int'l Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991), to support their position. Wilander held that “seaman” status under the Jones Act depends on “employment-related connection to a vessel in navigation. ... It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship’s work.” Id. at 355, 111 S.Ct. at 817. The Supreme Court has recently clarified the test for seaman status under the Jones Act, delineating a two-part test. Chandris, Inc. v. Latsis, — U.S.-, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). First, the

“employee’s duties must ‘contribute] to the function of the vessel or to the accomplishment of its mission.’” [McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991) (quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959)).]

Id. at-, 115 S.Ct. at 2190. Second,

a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.

Id. Although noting that “[w]hen a maritime worker’s basic assignment changes, his seaman status may change as well,” id. at-, 115 S.Ct. at 2191, the Court emphasized that

the Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to “the special hazards and disadvantages to which they who go down to the sea in ships are subjected.”

Id. at-, 115 S.Ct. at 2190 (quoting Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104, 66 S.Ct. 872, 881, 90 L.Ed. 1099 (1946) (Stone, C.J., dissenting)). The court noted with approval the Fifth Circuit’s general guideline that “a worker who spends less than about thirty percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.” Id. at-, 115 S.Ct. at 2191.

The record indicates that the Briggs used several twenty-three foot skiffs in their set net operations during salmon season.⁶ Nonetheless, that fact alone does not make Scott a seaman for the purposes of the Jones Act. Scott was injured while moving a set net buoy, rather than while working on a skiff.⁷ Because 1) the accident happened “at least two weeks before the salmon season opened,” 2) Scott worked as a maintenance person prior to the salmon season and not as a crew member at the set net site until the season, and 3) Scott had no apparent connection to any vessel in navigation as a part of his maintenance duties when injured, Scott was not a seaman at that time.⁸ Moreover, it is immaterial that Scott’s employment may have contemplated future operations in which a skiff was utilized: “the law does not cover probable or expectant seamen but seamen in being.” Desper v. Starved Rock Ferry Co., 342 U.S. 187, 191, 72 S.Ct. 216, 218, 96 L.Ed. 205 (1952). Scott, when injured, was carrying out his pre-salmon season dryland assignment and had not yet begun to carry out his assignment attending set nets. He was not yet “doing the ship’s work,” Wilander, 498 U.S. at 355, 111 S.Ct. at 817, and thus he had not yet assumed the status of “seaman.”⁹

Drawing all reasonable inferences in Scott’s favor, we conclude that there is no genuine issue of material fact as to his status; he was not a “seaman” covered by the Jones Act or general maritime law. We therefore affirm summary judgment as to this issue.

In view of our reversal of the summary judgment on the issue of the Briggs’ negligence, the award of attorney’s fees is vacated.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

1 . Scott was not a salaried employee, but fished “for shares,” i.e., a percentage of the fish caught.

2 . In an affidavit filed in opposition to the Briggs' motion for summary judgment, Scott stated: "I was a maintenance person prior to the salmon season and worked as a crewmember at their set net site during the salmon season. I worked on machinery and rebuilt engines prior to the season starting.” Further, he stated: "At least two weeks before the salmon season opened ... I was ordered to move several large set net buoys_" Further, he stated: “[t]he setnet operation I was scheduled to work on utilized several 23 foot boats ... I crewed these boats and tended all aspects of the set nets during the season. The buoys being lifted during the accident were for the setnet operation.” (Emphasis added.) In his Memorandum in Support of Opposition to Defendants^] Motion for Summary Judgment, Scott asserted that "[t]he set net salmon season was not set to start for 2-3 weeks after this [accident] happened,” and that “when this accident took place the season had not yet started.”

3 .We review summary judgment to determine whether there exists any genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). In doing so, we draw all reasonable inferences of fact in favor of the non-moving party. Id. Issues of negligence ordinarily are not susceptible to summary adjudication. See Sweaney v. Alaska Cent. Airways, Inc., 658 P.2d 780, 781 (Alaska 1983); Webb v. City & Borough of Sitka, 561 P.2d 731, 735 & n. 16 (Alaska 1977); Lillegraven v. Tengs, 375 P.2d 139, 142 & n. 16 (Alaska 1962).

4 . The parties dispute (1) whether Scott requested permission to move the set net buoys with chains instead of a forklift; (2) whether Scott's injury was caused by the Briggs' failure to supervise the buoy-moving procedure or Scott’s negligence in "put[ting] his hand in the wrong place”; or (3) whether Connor was operating the forklift negligently so as to impose vicarious liability on the Briggs.

5 . The Jones Act, 46 U.S.C.App. § 688 (1988), provides in part: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury...." Summary judgment is appropriate where there is no evidentiary basis from which to conclude that a plaintiff is a "seaman.” Bowers v. Kaiser Steel Corp., 422 P.2d 848, 854-55 (Alaska), cert. denied, 388 U.S. 910, 87 S.Ct. 2112, 18 L.Ed.2d 1348 (1967).

6 . Courts have found small boats such as skiffs to be "vessels” under the Jones Act. See, e.g., Stallworth v. McFarland, 350 F.Supp. 920 (W.D.La. 1972), aff'd, 493 F.2d 1354 (5th Cir.1974) (employee drowned when fourteen foot skiff in which he was riding swamped on navigable lake); Spiller v. Thomas M. Lowe, Jr. & Assocs., Inc., 328 F.Supp. 54 (W.D.Ark.1971), aff'd, 466 F.2d 903 (8th Cir.1972) (employee drowned when sixteen foot skiff in which he was riding capsized on navigable river).

7 . In an insurance report to the Alaska Department of Labor, Fishermen’s Fund, Emorene Briggs provided the following answers:

Name of vessel Set net site The vessel does have Protection and Indemnity (P & I) insurance. The deductible amount is_

(Briggs wrote through this question: "AT/A ”.)

A claim has been made to the P & I insurance carrier.

A claim has not been made to the P & I insurance carrier because:

(Briggs wrote in this space: “No — vessel set-net fisherman ”.)

8 . The Briggs correctly note that "a crew at a set net site is not necessarily the crew of a single skiff.” We express no opinion, however, as to whether Scott, if working on a skiff in the service of a set net on the Ugashik River, may be exposed to "the special hazards and disadvantages to which they who go down to the sea in ships are subjected." Latsis, - U.S. at -•, 115 S.Ct. at 2190 (quoting Seas Shipping Co. v. Sier-acki, 328 U.S. 85, 104, 66 S.Ct. 872, 881, 90 L.Ed. 1099 (1946) (Stone, C.J., dissenting)).

9 . The dissent would find that a genuine, material factual dispute exists concerning Scott’s claim that he was a seaman. The affidavit of Emorene Briggs, filed in support of the Briggs’ Motion for Summary Judgment, stated that "Scott ... fished on shore at these sites." Fishing on shore is not crewing a twenty-three foot boat. Attached to Ms. Briggs’ affidavit was the report described in footnote 7, supra, which in essence stated that no vessel was involved in the accident. Scott countered with a description of his duties before salmon season started, his duties after salmon season started (which allegedly included ”crew[ing] these [twenty-three foot] boats”), the fact that the accident happened at least two weeks before the salmon season started, and that the accident happened on shore while using a forklift to move a buoy. While there may be a dispute about Scott’s activities after salmon season started, there appears to be no dispute as to his duties before salmon season started.

Scott's affidavit that he was on the water part of the time does not controvert in its entirety Ms. Briggs’ assertion that his activities were shore based. It only does so with respect to activities taking place after salmon season started. The facts that appear controverted (activities during salmon season), as distinguished from those which do not appear controverted (activities pre-salmon season) are not what is at issue in this case.