Thomas D. Joyce v. Atlantic Richfield Company, a Pennsylvania Corporation

651 F.2d 676

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 1, 1981
• Docket: 79-1772
• Status: Published

Opinions

BARRETT, Circuit Judge.

Thomas D. Joyce appeals from the denial of his motions for judgment notwithstanding the verdict, and, alternatively, new trial in an action seeking damages for injuries he sustained aboard the SS ARCO SAG RIVER.

The SS ARCO SAG RIVER is an oil tanker operated by Atlantic Richfield Company (Arco) under a bare boat charter. Joyce was employed by Arco as an ordinary seaman aboard the vessel for a voyage from Long Beach, California to Drift River, Alaska.

On July 24, 1974, following the completion of his watch, Joyce was ordered by the chief mate to clean the starboard spillage traps near the oil cargo hook up equipment. In order to obtain a cleaning solvent for his task, Joyce had to traverse the main deck, walk up a metal ladder to the poop deck, continue aft and then up a second ladder to the boat deck. It was on the boat deck that the cleaning solvent (Aquanox) was stored in upright fifty-five gallon drums lashed to the ship’s rails approximately four steps from the top of the ladder. The normal method of transporting the solvent back to the area of usage was by hand-carried five gallon buckets.

Upon reaching the boat deck, Joyce noticed that Aquanox was on the deck near the storage drums. This was a common condition, causing the deck to be “messy and slippery.” R., Vol. II, p. 97. The slippery condition of the deck had been aggravated by a recent rain and fog.

Joyce proceeded across the deck to the storage drums. He then filled his five gallon bucket, and began the journey back to the main deck. As he began down the athwartship ladder leading from the boat deck to the poop deck, his foot slipped, causing his left arm to be thrust between the handrail and the bulkhead. He fractured his left humerus mid-shaft.

The ship’s master rendered first aid, splintered the break, and attempted to make Joyce comfortable. Two and one-half days later, Joyce was evacuated from the ship at Homer, Alaska. He was later flown to a United States Public Health Service Clinic in Anchorage, Alaska.

As a result of his injuries, Joyce filed the instant action for damages. The complaint prays for relief under the Jones Act, 46 U.S.C.A. § 688, the doctrine of unseaworthiness, and for want of adequate maintenance and cure. At the conclusion of trial, the jury returned a verdict finding Arco forty percent negligent and Joyce sixty percent negligent. No unseaworthiness was found. Judgment on the verdict was entered in favor of Joyce in the amount of $40,000.00.¹

The primary issues presented on appeal are whether the District Court erred in: (1) denying Joyce’s motion for judgment notwithstanding the verdict and (2) instructing the jury on the issue of contributory negligence. Other issues are raised. In light of our disposition, however, it is not necessary to reach them.

Judgment Notwithstanding the Verdict

When faced with a motion for judgment notwithstanding the verdict, the standards by which the prerequisite motion for directed verdict is judged control. Barnett v. Life Insurance Company of the Southwest, 562 F.2d 15 (10th Cir. 1977). Judgment notwithstanding the verdict may only be granted where the evidence “points all one way and is susceptible of no reasonable inferences that sustain the position of the party against whom the motion is made.” Bertot v. School District No. 1, 522 F.2d 1171, 1178 (10th Cir. 1975). See Barnett v. Life Insurance Company of the Southwest, supra (citing cases); Burger Train Systems, Inc. v. Ballard, 552 F.2d 1377 (10th Cir. 1977) (per curiam), cert. denied, 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 132 (1977). A mere scintilla of evidence is insufficient to justify the denial of the motion. Symons v. Mueller Co., 493 F.2d 972 (10th Cir. 1974). However, since the grant of such a motion deprives the nonmoving party of a determination of the facts by a jury, judgment notwithstanding the verdict should be cautiously and sparingly granted. Cleverly v. Western Electric Co., 594 F.2d 638 (8th Cir. 1979) (per curiam).²

On appeal, we employ the same standards of review as that of the trial court. General Wholesale Beer Co. v. Theodore Hamm Co., 567 F.2d 311 (5th Cir. 1978) (per curiam). The trial court’s denial is error only where “there is no evidence or dispute or the evidence, although in conflict, is of such a conclusive nature that if a verdict were reached in favor of the party, judicial discretion would require that it be set aside.” Ford Motor Credit Co. v. Milburn, 615 F.2d 892, 894 (10th Cir. 1980), quoting, Continental Oil Co. v. Natrona Services, Inc., 588 F.2d 792, 800 (10th Cir. 1978).

A.

We first address Joyce’s contentions regarding his unseaworthiness claims in light of the standards outlined above. Caldwell v. Manhatten Tankers Corp., 618 F.2d 361 (5th Cir. 1980).

General maritime law imposes a duty upon shipowners to provide seaworthy vessels. Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed.2d 927 (1922). This duty requires that the vessel, her gear and crew, be reasonably fit for their intended use. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971); Waldron v. Moore-McCormack Lines, 386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967); Morales v. City of Galveston, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412 (1962). It is an absolute duty, independent of the duty of reasonable care mandated by the Jones Act. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The existence of actual or constructive notice on the part of the shipowner is not required, nor does liability depend on any concept of due diligence on the owner’s part. Simply stated, any condition, even though transitory in character, rendering the vessel unfit for her intended use makes the vessel unseaworthy. Id. Normally this determination presents a question of fact for the jury. Dunlap v. G & G Towing, Inc., 613 F.2d 493 (4th Cir. 1980).

Without detailing our views, we conclude that the District Court’s resolution of this issue was correct. We agree that evidence produced at trial showed Aquanox present on the deck around the storage drums when Joyce arrived at the scene and that this condition was chronic. This, at first blush, brings the case under the line of decisions exemplified by Schell v. Chesapeake & Ohio Ry. Co., 395 F.2d 676 (4th Cir. 1968). On further examination, however, we find the case controlled by Dunlap v. G & C Towing, Inc., supra.

Unlike Schell, supra, there exists here strong contradictory evidence concerning the possibility that Joyce may have subsequently spilled additional Aquanox, magnifying the slick on which he slipped. Assuming that additional solvent spilled, an added conflict exists as to whether the spill resulted from an allegedly defective barrel pump or solely from Joyce’s own actions. A conflict similarly exists as to whether the steps on the ladder were properly painted and what the surface characteristics were.

The evidence here is also susceptible to the interpretation that the Aquanox present on the deck before Joyce’s arrival constituted simply a film resulting from misting through pump operation under windy conditions. “The mere existence of such film does not necessarily constitute unseaworthiness.” Dunlap v. G & C. Towing, Inc., supra, at p. 496. It is only when the film renders the area unfit for its intended use that liability attaches. Id. This, of course, requires consideration of safety features such as stair rails (present here) and the ladder’s surface characteristics.

In this case it was a jury question whether the ladder and contiguous deck were reasonably fit for their intended use at the time of Joyce’s injury.

B.

The Jones Act grants “[a]ny seaman who shall suffer personal injury in the course of his employment” the right to seek damages in a jury trial against his employer in the same manner as the Federal Employer’s Liability Act (FELA), 45 U.S.C.A. § 51 et seq. allows claims by railroad employees. 46 U.S.C.A. § 688. Proof of negligence is essential to recovery under the Jones Act. Jacob v. New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166 (1942). Such negligence, however, may arise from a dangerous condition on or about the ship, failure to use reasonable care to provide a seaman with a safe place to work, failure to inspect the vessel for hazards and a variety of other breaches of the shipowner’s duty of care. Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977). As with the doctrine of unseaworthiness, contributory negligence and assumption of the risk are not available to bar recovery by a seaman. Jacob v. New York, supra, 315 U.S. at p. 755, 62 S.Ct. at p. 855. Rather, a pure comparative negligence standard applies. Johannessen v. Gulf Trading and Transport Co., 633 F.2d 653 (2d Cir. 1980); 45 U.S.C.A. § 54.

In Jones Act eases, a more severe standard controls the determination of whether the grant of a defendant’s motion for judgment notwithstanding the verdict is proper. Caldwell v. Manhatten Tankers Corporation, supra; Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). In those classes of cases, entry of a directed verdict is proper “only when there is a complete absence of probative facts” supporting the claimant’s position. Id. at p. 370. Whether this standard also applies to motions to direct liability in the seaman’s favor remains an open question. See Allen v. Seacoast Products, Inc., 623 F.2d 355 (5th Cir. 1980) (suggesting Jones Act, FELA standard may not apply under these circumstances).

Applying either standard, we hold that the Court correctly submitted the issue to the jury. Our reasons parallel those provided as to the unseaworthiness count. Additionally, we observe that Arco’s constructive knowledge of the presence or absence of the Aquanox presented a question of fact for the jury as it related to the negligence count.

The motion for judgment notwithstanding the verdict was properly denied as to the Jones Act count.

Contributory Negligence

Joyce claims error in the charge to the jury contending it impermissibly injected the doctrine of assumption of the risk into the issues of the case.

In reviewing allegations of error in instructions we must consider whether the charge is “comprehensive, balanced, fundamentally accurate, and not likely to confuse or mislead the jury.” Scheib v. Williams-McWilliams Co., Inc., 628 F.2d 509, 511 (5th Cir. 1980). If these conditions have been met, reversal is not warranted. We must, of course, make this determination “in the light, not only of the instructions as a whole, but of the allegations of the complaint, the opening statements, the evidence, and the closing arguments.” Alloy International Co. v. Hoover-NSK Bearing Co., 635 F.2d 1222, 1226 (7th Cir. 1980).

Assumption of the risk is not a defense to a seaman’s claims under the Jones Act or where the doctrine of unseaworthiness is found to apply. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265 (1939). Contributory negligence is, however, a valid defense if it does not result in a complete bar of all claims, but rather in an allocation of fault on a comparative basis. Johannessen v. Gulf Trading and Transport Co., supra.

The distinction between assumption of risk and contributory negligence in a maritime setting has not always been clearly understood. A seaman may not be denied recovery because he proceeds in an unsafe area of the ship or uses an unsafe appliance in absence of a showing that there was a safe alternative available to him. In an oft-cited case the court wrote, “Had an alternative, safe route been available to Smith, his deliberate choice of a course known to be unsafe could possibly have indicated contributory fault but mere knowledge of the unsea-worthy condition and use of the ladder in the absence of a showing that there was an alternative is not contributory negligence.” Smith v. United States, 336 F.2d 165, 168 (4th Cir. 1964) . .. One court has stated the rule, “no risk that can be reasonably controlled by the ship owner is assumed by the seaman.” Reyes v. Vantage S.S. Co., 558 F.2d 238, 244 (5th Cir. 1977).

* * * * * *

To determine whether plaintiff was guilty of contributory negligence we must focus on his actions after he assumed the risk of working with the defective rig since the defense of contributory negligence requires evidence of some negligent act or omission by the plaintiff other than his knowledgeable acceptance of a dangerous condition. Rivera v. Farrell Lines, Inc., 474 F.2d 255, 257-58 (2d Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 122, 38 L.Ed.2d 55 (1973). The burden of proving that the plaintiff failed to exercise due care is on the defendant. Nolan v. Greene, 383 F.2d 814 (6th Cir. 1967); Mason v. Mathiasen Tanker Industry, Inc., 298 F.2d 28, 32 (4th Cir.), cert. denied, 371 U.S. 828, 83 S.Ct. 23, 9 L.Ed.2d 66 (1962). Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193, 1195, 1196 (6th Cir. 1980).

The instructions to the jury in this case contained a general explanation of the defense of contributory negligence and the defendant’s burden of proving the existence of the defense. No allegation of error is made as to these instructions. Immediately after these instructions, however, the Court gave the following instructions which are challenged on appeal:

Number 33. Defendant ship owner, the Atlantic Richfield Company, alleges that the Plaintiff at the time and place in question was guilty of contributory negligence. In that the Plaintiff then and there failed to use ordinary care under the existing circumstances for his own safety and by failing to keep a watch on the conditions surrounding him in his work, by failing to notice danger which was obvious or would have been obvious to any reasonably prudent person exercising ordinary care under then existing circumstances.

33-A. There was no duty to warn a seaman of an obvious condition or danger which he can see and observe through the ordinary use of his senses. Failure to warn a seaman of a fact or condition of which he was aware or which he should have been aware does not breach any duty owed a seaman. R., Vol. VII, pp. 18-19.

While these instructions were framed in contributory negligence terms, we must hold that, in substance, they impermissibly injected the doctrine of assumption of the risk into the issues of the case.³ The focus of these instructions is on Joyce’s actions in accepting the dangerous condition. Instead, proof of contributory negligence requires evidence of some negligent act or omission on Joyce’s part over and above his acceptance of the danger. Rivera v. Farrell Lines, Inc., 474 F.2d 255 (2d Cir. 1973), cert. denied, 414 U.S. 822, 94 S.Ct. 122, 38 L.Ed.2d 55 (1973) (charge which permitted jury to consider messman’s knowing acceptance of slippery floor, and which did not require act of negligence other than messman’s knowledgeable encounter with dangerous condition, improperly permitted defense of assumption of risk to go to jury). See Gilmore and Black, The Law of Admirably, § 6-27a (1975), (noting disagreements between the circuits: Tolar v. Kinsman Marine Transit Co., supra; Reyes v. Vantage S. S. Co., Inc., 558 F.2d 238 (5th Cir. 1977), modified, 609 F.2d 140 (5th Cir. 1980); Rivera v. Farrell Lines, Inc., supra; Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir. 1972, cert. denied, 409 U.S. 876, 93 S.Ct. 124, 34 L.Ed.2d 728 (1972); Smith v. United States, 336 F.2d 165 (4th Cir. 1964). Contra, Mroz v. Dravo Corp., 429 F.2d 1156 (3d Cir. 1970); DuBose v. Matson Navigation Co., 403 F.2d 875 (9th Cir. 1968)). The Court’s instructions should have admonished the jury that: “You may not find contributory negligence on the part of the plaintiff, however, simply because he acceded to the request or direction of the responsible representatives of his employer that he work at a dangerous job, or in a dangerous place, or under unsafe conditions.” Devitt and Blackmar, Fed. Jury Prac. and Instructions (3d Ed.) § 94.16.⁴

The verdict must be set aside because the finding of Joyce’s contributory negligence may have been linked to the erroneous charge. Inasmuch as damages and contributory negligence are so interwoven in Jones Act cases, we must remand for a new trial.⁵

REVERSED AND REMANDED.

1 . The maintenance and cure count is not at issue, except to the extent that duty to provide medical care relates to the Jones Act, supra, claim.

2 . Of course, in making this determination the Court cannot weigh the evidence, consider the credibility of witnesses or substitute its judgment for that of the jury. Yazzie v. Sullivent, 561 F.2d 183 (10th Cir. 1977).

3 . These instructions appear to be a combination of portions of Devitt and Blackman, Fed. Jury Prac. and Instructions (3d Ed.) §§ 96.35 and 96.40. The text of Instruction § 96.35 has been withdrawn. Instruction § 96.40 (applicable to the Longshoreman and Harbor Workers Compensation Act, 33 U.S.C.A. § 901 eí seq.) conflicts with Instruction § 94.16 (applicable under the Jones Act).

4 . A similar instruction, although not proper in all respects, was tendered by Joyce and refused. R., Vol. I, pp. 98-99.

5 . On remand, the District Court may wish to consider the jury instructions contained in District Judges Asso. of the Fifth Circuit’s Pattern Jury Instructions (Civil), Federal Instruction 7A (1980).