GLENDA CHURCHWELL, Plaintiff-Appellant, v. BLUEGRASS MARINE, INC., MARQUETTE TRANSPORTATION CO., INC., and MOTOR VESSEL MARIE HENDRICK, Defendants-Appellees.
No. 05-5185
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: April 21, 2006
444 F.3d 898
Before: MARTIN and CLAY, Circuit Judges; SARGUS, District Judge.*
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 06a0142p.06. Appeal from the United States District Court for the Western District of Kentucky at Paducah. No. 03-00193—W. David King, Magistrate Judge. Argued and Submitted: March 15, 2006.
COUNSEL
OPINION
CLAY, Circuit Judge. Plaintiff, Glenda Churchwell, appeals an order of the United States District Court for the Western District of Kentucky, granting summary judgment in favor of Defendants, Bluegrass Marine, Inc., Marquette Transportation Company Inc., and Motor Vessel Marie Hendrick, and dismissing Plaintiff‘s claims of 1) unseaworthiness in violation of general maritime law, and 2) negligence in violation of the Jones Act. For the reasons set forth below, we REVERSE the district court‘s dismissal of Plaintiff‘s claims.
I. BACKGROUND
Plaintiff‘s personal injury claims
According to Plaintiff, she would not have dropped the grease can if she had been allowed to place it in a container with handles, and she would not have slipped if the mat had contained holes to re-direct the grease. Plaintiff obtained the services of Dr. Huston,1 an engineer, to support her argument that Defendants’ failure to provide mats with holes (“grease mats“) and a container with a handle created a dangerous work environment. Dr. Huston testified at his deposition that Defendants should have placed a grease mat in the kitchen because spills in a kitchen are foreseeable and unavoidable. Additionally, Dr. Huston testified that Defendants should have provided Plaintiff with a grease container that had a handle. According to Dr. Huston, grease containers with handles are commercially available. Finally, Dr. Huston testified that it was his opinion that Defendants’ failure to provide grease mats and a container with a handle made Plaintiff‘s accident more likely. Specifically, a container with a handle would have decreased the likelihood of spills and a grease mat would have substantially decreased the likelihood of accidents from spilled liquid by containing and diverting the liquid.
Defendants moved in limine to exclude Dr. Huston‘s testimony. They argued that Dr. Huston‘s testimony improperly characterized their duties under the relevant law by implying that Defendants had a duty to provide an accident-free work place. Additionally, Defendants argued that Dr. Huston‘s testimony that safer alternatives existed, i.e., the grease mat and container with handle, was irrelevant to the issues in this case. According to Defendants, the existence of safer alternatives does not render the existing conditions unsafe.
That same day, Defendants moved for summary judgment. Defendants argued that the negligent manner in which Plaintiff picked up the grease container was the sole cause of Plaintiff‘s injuries. Defendants pointed to Dr. Huston‘s admission that if Plaintiff had picked up the container with two hands or if she had placed the container on a tray to move it that she would have been less likely to drop it. Thus, according to Defendants, summary judgment was proper because: (1) Defendants had not breached any duty by providing an unreasonably dangerous work environment; and (2) Plaintiff‘s own negligence was the proximate cause of her injuries rendering the primary duty rule a bar to Plaintiff‘s suit.
Plaintiff eventually responded to Defendants’ motion for summary judgment but failed to respond to their motion in limine. Thus, the district court granted Defendants’ motion in limine, holding that: (1) Dr. Huston‘s testimony that the Marie Hendrick‘s kitchen was unreasonably dangerous was an inadmissible legal conclusion; and (2) Dr. Huston‘s testimony regarding safer alternatives to the grease can and slippery mats was irrelevant. The district court also granted Defendants’ motion for summary judgment, holding that there was no evidence that Defendants had breached their duty of “ordinary prudence” under the Jones Act or that the Marie Hendrick was unseaworthy. The court reasoned that no similar mishaps had occurred in the past, Plaintiff failed to
II. DISCUSSION
The district court erred in granting Defendants’ motion for summary judgment on Plaintiff‘s unseaworthiness and Jones Act claims. Plaintiff presents sufficient evidence such that she could prevail on both claims at trial. Moreover, contrary to Defendants assertions, Plaintiff‘s own negligence does not provide an adequate basis on which to grant summary judgment. Maritime law espouses a system of comparative negligence, in which a plaintiff‘s own negligence does not bar recovery. The only exception to this rule is the primary duty doctrine, under which the employee responsible for maintaining safe conditions may not sue his employer for his own failure to maintain safe conditions. As the primary duty doctrine has no application in this case, Plaintiff‘s alleged negligence is not grounds for summary judgment. Therefore, we reverse the order of the district court, granting summary judgment in favor of Defendants.
A. Standard of Review
This Court reviews a district court order granting summary judgment de novo. Rannals v. Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir. 2001). Summary judgment is only proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
B. Analysis
1. Dr. Huston‘s Testimony
As a threshold matter, we note that we may not consider Dr. Huston‘s testimony in determining whether Plaintiff demonstrates the existence of genuine issues of material fact. We conclude that we may not consider Dr. Huston‘s testimony because Plaintiff failed to preserve its admissibility for this Court‘s review. The district court excluded Dr. Huston‘s testimony in response to Defendants’ motion in limine. Despite being given multiple opportunities in the district court to respond to Defendants’ motion, Plaintiff failed to oppose the motion. Therefore, Plaintiff failed to preserve this issue for our review,
2. Plaintiff‘s Unseaworthiness Claim
The district court erred in granting Defendants’ motion for summary judgment on Plaintiff‘s unseaworthiness claim because Plaintiff offered sufficient evidence to create a genuine issue of material fact as to each element of her unseaworthiness claim.
a. The Doctrine of Seaworthiness
A ship owner is strictly liable for personal injuries caused by his or her vessel‘s “unseaworthiness.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960). A vessel is unseaworthy if the vessel and its appurtenances are not “reasonably fit for their intended use.” Mitchell, 362 U.S. at 550. Defective gear, an unfit or understaffed crew, or the use of an improper method of storage or unloading cargo all render a vessel unseaworthy. Morales v. City of Galveston, 370 U.S. 165, 170 (1962). Even the misuse of properly functioning equipment may render a vessel unseaworthy if the misuse occurs at the direction of a superior. Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 726-28 (1967) (citing Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 427 (1959)). Generally, unseaworthiness is a question of fact for the jury and should not be resolved by the district court as a matter of law. See Cook v. American S.S. Co., 53 F.3d 733, 742 (6th Cir. 1995) (citing Roper v. United States, 368 U.S. 20 (1961)), overruled on other grounds by Gen. Elec. v. Joiner, 522 U.S. 136, 143 (1997).
To prevail on an unseaworthiness claim, a plaintiff must establish that a vessel‘s unseaworthy condition was the proximate cause of his or her injuries. Miller v. Am. President Lines, LTD, 989 F.2d 1450, 1463-64 (6th Cir. 1993). A vessel‘s unseaworthiness is the proximate cause of a plaintiff‘s injuries if it was a substantial factor in causing such injuries. Id. at 1464. In other words, unseaworthiness proximately causes an injury if it “‘played a substantial part in bringing about or actually causing the injury and the injury was either a direct result or a reasonably probable consequence of unseaworthiness.‘” Id. (quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 1988)).
b. Summary Judgment was Improper
Plaintiff‘s testimony creates sufficient evidence to create a genuine issue of material facts as to both elements of an unseaworthiness claim: (1) the unseaworthy condition of the ship; and (2) proximate causation.
i. Unseaworthy Condition
Plaintiff‘s testimony creates a genuine issue of material fact as to whether the absence of grease mats and a container with a handle rendered the Marie Hendrick unseaworthy. A vessel may be unseaworthy because it contains defective gear, is missing necessary gear, or because its crew is instructed to use unsafe work methods. Morales, 370 U.S. at 170; see Waldron, 386 U.S. at 727 (holding that crew‘s misuse of equipment pursuant to order rendered vessel unseaworthy). According to Plaintiff‘s
Accordingly, we reject Defendants argument that proof of a safer work environment or methods is inadmissible.2 The Federal Rules of Evidence require district courts to admit all relevant evidence unless such evidence is otherwise inadmissible. See
We believe that evidence of a safer environment or method is relevant within the meaning of
The advisory committee notes to
Locke v. River Lines, Inc., 248 F. Supp. 92 (N.D. Cal. 1964), does contradict this holding. In Locke, the district court determined that the existence of a safer docking procedure did not render the procedures used by the defendant negligent or unsafe. Id. at 94. Locke, however, addressed the sufficiency of evidence and not the admissibility of evidence. Id. In Locke the court admitted expert testimony regarding safer docking procedures but found that such testimony, alone, did not prove that the defendant‘s method was unsafe. Id. Unlike in Locke, the issue in this case is not whether evidence of a safer environment or measures alone proves that Defendants were negligent, but rather whether such evidence makes it more probable that Defendants were negligent. As discussed above, we believe that it does make it more probable that Defendants were negligent.
Finally, we also reject Defendants’ argument that the Marie Hendrick was not unseaworthy because Plaintiff had a safe alternative to grasping the coffee can with one hand: she could have used two hands. Defendants cite several cases from outside this Circuit to support this argument. These cases are not on point, however, because the defendants in the cited cases all clearly met their duty of care. That is, in the cited cases there was nothing more that the defendants could have done to prevent the accidents and make the ship safer. See Lyons v. Ohio River Sand and Gravel Co., 683 F.2d 99 (4th Cir. 1982) (holding that the defendant was not negligent for sending one man to obtain a screen because it was unforeseeable that the screen would be buried under heavy objects that the plaintiff would choose to lift without asking for help when the general practice on the ship was to give assistance to others in such situations); Robinson v. Zapata Corp., 664 F.2d 45 (5th Cir. 1981) (holding that the ship was not unseaworthy for failing to provide the plaintiff welder with a clamp to secure a piece of metal where other equipment/methods existed to insure the metal held in place and the plaintiff, with knowledge of these methods, chose not to secure the metal); Fueston v. Lykes Bros. Steamship Co., 550 F. Supp. 139 (N.D. Cal. 1982) (holding that a ship was not unseaworthy where the plaintiff slipped after choosing not to climb the ladder leading to top platform but and instead climbed a ladder and leaped to the top platform).3 The
ii. Causation
Plaintiff has also offered sufficient evidence of proximate causation to create a genuine issue of material fact. Again, Plaintiff is free to testify that the lack of adequate flooring was a substantial factor causing her to slip and that the lack of a container with a handle was a substantial factor contributing to the container slipping from her grip. Plaintiff does not need an expert to testify about such causation in order to submit this issue to the jury. These issues fall squarely within the type of knowledge that most persons obtain through everyday life experiences. Because reasonable people could disagree about whether these conditions were substantial factors causing Plaintiff‘s accident, causation is properly an issue for the jury. See id.
3. Plaintiff‘s Jones Act Claim
The district court erred in granting summary judgment on Plaintiff‘s Jones Act claim because Plaintiff offered sufficient evidence to create genuine issues of material fact as to each element of her Jones Act claim.
a. The Jones Act
The Jones Act,
b. Summary Judgment Was Improper
Plaintiff has presented sufficient evidence to create a genuine issue of material fact as to each element of her Jones Act claim: (1) the kitchen was unreasonably dangerous; (2) the dangerous condition caused Plaintiff to fall; and (3) Defendants should have known about the dangerous condition. As discussed above in relation to the unseaworthiness claim, Plaintiff has offered sufficient evidence that her work area was unreasonably dangerous and that the dangerous conditions caused her to fall. This analysis applies equally to her Jones Act claim. In fact, the requisite level of causation is lower under the Jones Act. Additionally, there is sufficient evidence that Defendants should have been aware of the dangerous condition of their kitchen. Spills in a kitchen are reasonably foreseeable, and Defendants should know what type of equipment their kitchen contains, i.e., the absence of grease mats and containers with handles. See Ribitzki, 111 F.3d at 663-64 (holding that a ship owner was on constructive notice of permanent conditions on ship). Therefore, Plaintiff‘s Jones Act claim should have been submitted to the jury. See id.
4. Plaintiff‘s Alleged Negligence
Plaintiff‘s alleged negligence does not provide a proper basis for summary judgment. Maritime law espouses a system of comparative negligence, in which a plaintiff‘s negligence does not preclude recovery. The only exception to this rule is the primary duty doctrine, which has no application in this case.
a. System of Comparative Negligence
Maritime law espouses a system of comparative negligence. Miller, 989 F.2d at 1459-63. “This defense requires . . . evidence that the seaman chose to perform a task in a manner that placed him in danger despite the fact that there were alternative means available to him” Wilson v. Maritime Overseas Corp., 150 F.3d 1, 11 (1st Cir. 1998) (citing Burden v. Evansville Materials, Inc., 840 F.2d 343, 346 (6th Cir. 1998)). If such evidence exists, the issue of the plaintiff‘s comparative negligence is submitted to the jury and the plaintiff‘s damages are reduced by the degree of fault that the jury assigns to plaintiff‘s behavior. Miller, 989 F.2d at 1461-62. It is well established that comparative negligence applies to unseaworthiness claims as well as Jones Act claims. Id. at 1461-6 (citing Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09 (1953)); see also Cook, 53 F.3d at 741.
The doctrine of contributory negligence, however, does not preclude a plaintiff from complete recovery on unseaworthiness or Jones Act claims. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09 (1953). “The harsh rule of the common law under which contributory negligence wholly barred an injured person from recovery is completely incompatible with modern admiralty policy and practice. Exercising its traditional discretion, admiralty has developed and now follows its own fairer and more flexible rule which allows such consideration of contributory negligence in mitigation of damages as justice requires.” Id.; see also
In this case, Defendants offer evidence that Plaintiff‘s own negligence caused her injury. As discussed above, contributory negligence does not bar recovery on Jones Act and unseaworthiness claims. Maritime law espouses a system of comparative negligence in which the plaintiff‘s damages are reduced by the plaintiff‘s degree of fault. Thus, the jury should be instructed on comparative negligence and allowed to determine whether Plaintiff was negligent and, if so, the degree of Plaintiff‘s fault for her injuries. Plaintiff‘s alleged negligence, however, does not bar recovery. See Ribitzki, 111 F.3d at 662 (holding that the plaintiff‘s negligence does not “cancel out” the defendant‘s negligence).
Defendants cite the First Circuit‘s decision in Wilson to support their argument that Plaintiff‘s alleged negligence is a complete bar to recovery. In Wilson the First Circuit stated, “contributory negligence can be a complete defense when a jury finds that the plaintiff‘s own negligence was the sole proximate cause of the injuries.” 150 F.3d at 11. Defendants’ argument fails for two reasons. First, it is far from clear that Plaintiff was negligent and that her negligence was the sole cause of her injuries. Second, we find the First Circuit‘s argument unpersuasive. The First Circuit‘s analysis confuses the concepts of contributory negligence and proximate causation. In order to reach the issue of contributory negligence, a plaintiff must first establish a prima facie case of the defendant‘s negligence. Restatement (Second) of Torts § 463 (1965) (defining contributory negligence as negligence that combined with the defendant‘s negligence causes the plaintiff‘s harm). The prima facie case must include evidence that the defendant‘s breach proximately caused the plaintiff‘s injuries. Restatement (Third) of Torts § 6 cmt. b (2005). Where the evidence indicates that the plaintiff‘s own negligence was sole proximate cause of the plaintiff‘s injuries, then the plaintiff cannot establish a prima facie case. See
b. The Primary Duty Rule
In contrast to comparative negligence, the primary duty rule provides ship owners with a complete defense against Jones Act and unseaworthiness claims. “The primary duty rule provides that a ship‘s officer may not recover against his employer for negligence or unseaworthiness when there is no other cause of the officer‘s injuries other than the officer‘s breach of his consciously assumed duty to maintain safe conditions aboard the vessel.” Wilson, 150 F.3d at 11 (citing Walker v. Lykes Bros. S.S. Co., 193 F.2d 772, 773 (2d Cir. 1952)). “[A]n instruction on the primary duty rule must be given if the evidence establishes a genuine issue of controversy as to whether [the plaintiff] owed a duty to the defendants, whether he breached the duty, and whether the breach was the sole proximate cause of his injury.” Id. (emphasis in original). “[T]he primary duty rule does not bar recovery where the plaintiff breached his duty but the ship‘s owner was also independently at fault.” Id. In such cases, the jury must apply the doctrine of comparative negligence. See id.
The primary duty rule has no place in this case. In order for the primary
In summary, the district court erred in granting summary judgment because Plaintiff has offered sufficient evidence to create a genuine issues as to all elements of Plaintiff‘s unseaworthiness and Jones Act claims. Additionally, neither contributory negligence nor the primary duty rule render summary judgment proper in this case because the doctrine of contributory negligence does not apply under maritime law and because the primary duty doctrine does not apply on the facts of this case.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s grant of summary judgment in favor of Defendants on Plaintiff‘s unseaworthiness and Jones Act claims and REMAND for trial.