Opinion
No. 58041-8-I.
September 10, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-16250-5, Richard D. Eadie, J., entered March 8, 2006.
Affirmed by unpublished opinion per Cox, J., concurred in by Appelwick, C.J., and Grosse, J.
This is a maritime action for damages based on alleged negligence under the Jones Act and unseaworthiness of the vessel on which the injury occurred. We hold that the trial court correctly determined the duty owed by Crowley Marine Services, Inc. (Crowley) to Donald Hiltbruner. Moreover, the record establishes the other elements of the Jones Act claim: breach, notice, and causation. Likewise, the record also supports the elements for the claim of unseaworthiness. The trial court did not err in implicitly denying the motion for judgment as a matter of law. There is no basis for claiming this is a frivolous appeal. We affirm.
On September 20, 2003, Hiltbruner was working on Barge 255, docked in Portland, Oregon. The barge had a metal plate called a spill rail protruding about four inches perpendicular to the deck and approximately 32 inches away from the deck edge. The purpose of the spill rail is to prevent oil on the deck from spilling into the water. Triangular metal angle irons at regular intervals along the water side of the spill rail served to reinforce it along the length of the rail.
Crowley paints trip hazards with white paint. Among the items painted in the past are cleats, manways, and hatch covers. Crowley also paints the edge of the barge deck white. Crowley has never painted angle irons along the spill rail white.
On September 20, the barge on which Hiltbruner was injured arrived at the dock at approximately 6:55 p.m. The barge log notes that all the lines securing it to the dock were tied at 7:20 p.m. At approximately 8:20 p.m., Hiltbruner descended a ladder to the barge that he had previously used to gain access to its deck. When he hopped toward the barge deck, his momentum carried him into a shadowed area. As his foot landed in that area, it struck an angle iron, injuring his knee.
Hiltbruner sued Crowley for negligence under the Jones Act and also claimed the barge was unseaworthy. The parties stipulated to damages of $300,000 and tried the issue of liability to the court in a bench trial. At the close of Hiltbruner's case, Crowley moved for a directed verdict (a judgment as a matter of law). The court reserved ruling on the motion, implicitly denying it when it later entered its findings of fact, conclusions of law, and judgment against Crowley.
CR 50(a), Judgment as a Matter of Law in Jury Trials.
Crowley appeals.
JONES ACT NEGLIGENCE
Crowley contends that the trial court erroneously defined its duty to Hiltbruner. It also claims there was insufficient evidence to support the other elements of the claim: breach, notice of the safety hazard, and causation. We disagree.
To recover on his Jones Act claim, Hiltbruner was required to prove that Crowley was negligent and that this negligence was a cause, however slight, of his injuries. The Jones Act adopts the Federal Employer's Liability Act (FELA) standard for negligence. The "quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence, . . . and even the slightest negligence is sufficient to sustain a finding of liability." The elements of a Jones Act negligence claim are: duty, breach, notice, and causation. We consider each of these elements in order.
Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993).
Hoddevik v. Arctic Alaska Fisheries, 94 Wn. App. 268, 274-75, 970 P.2d 828 (1999).
Havens, 996 F.2d at 218.
Ribitzki v. Canmar Reading § Bates, 111 F.3d 658, 662 (9th Cir. 1997).
DUTY
The owner of a vessel has a duty under the Jones Act to provide seamen in its employ with a safe place to work. Whether a vessel owner has a duty is a question of law that we review de novo. It is undisputed that Crowley was the owner and operator of Barge 255. Likewise, it is undisputed that Crowley employed Hiltbruner as a tankerman on that barge at the time of the accident. Accordingly, Crowley had a duty to provide Hiltbruner with a safe place to work.
Id.
Bishop v. Jefferson Title Co., 107 Wn. App. 833, 843 n. 10, 28 P.3d 802 (2001).
Finding of Fact 1, Clerk's Papers at 489.
Id.; Findings of Fact 2 and 3, Clerk's Papers at 489.
BREACH
The trial court decided that Crowley breached its duty to provide a safe place to work. We agree.
"Breach and proximate cause are generally fact questions for the trier of fact." A primary issue is whether painting the angle irons white in this case was within the ambit of Crowley's duty to provide a safe workplace. Reasonable foreseeability of harm is an essential ingredient of an action for negligence under FELA, [and] serves to limit the scope of the duty owed. "The harm sustained must be reasonably perceived as being within the general field of danger covered by the specific duty owed by the defendant." The test of foreseeability is objective, and whether the injured party foresaw the risk is irrelevant to the determination of foreseeability. Foreseeability is a question of fact to be determined by the trier of fact.
Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Seeberger v. Burlington N. R.R. Co., 138 Wn.2d 815, 823, 982 P.2d 1149 (1999).
Seeberger, 138 Wn.2d at 823.
Id. (quoting Maltman v. Sauer, 84 Wn.2d 975, 981, 530 P.2d 254 (1975)).
Id.
Seeberger, 138 Wn.2d at 822-23 (applying FELA liability standards to a claim.)
The evidence presented at trial supports the determination that the angle irons posed a reasonably foreseeable danger. The evidence established that the angle irons protruded upward from the deck. And because they were the same color as the deck, they were more difficult to distinguish than if they had been painted white. There was evidence in the record, including the testimony of Hiltbruner, that white painted objects on a barge were more readily visible, especially in areas with inadequate lighting. And Hiltbruner testified that bargemen typically jumped from a ladder on the dock to the barge. We note that the trial judge specifically discussed trial exhibit 5, a photograph of Barge 255, in discussing his rationale for deciding the liability issues. Given these facts, a trier of fact could find that it was reasonably foreseeable that someone could step on or trip over an angle iron while jumping onto the barge under the lighting conditions that existed at the time of the accident.
Crowley appears to argue that in the absence of a law, regulation, custom, or practice of painting the angle irons white, doing so is not within the scope of the duty it had to Hiltbruner in this case. Moreover, it appears to rely on the assertion that the angle irons were not within the normal walking area and were not the source of any prior complaint or accident. But these assertions do not squarely deal with the factual determination in this case that it was reasonably foreseeable that unpainted angle irons were trip hazards that should have been painted white under the circumstances that existed in this case.
Crowley also argues that Hiltbruner knew of the danger presented by the angle irons and that it did not. The latter assertion is simply not supported by the record, as we discuss later in this opinion. In any event, given these circumstances, the finder of fact could find that, even though Hiltbruner was aware that the angle irons were on the deck, Crowley was negligent because it was unreasonable to leave the angle irons painted the same color as the deck. In short, the finding of breach is supported by the record. Crowley argues that the trial court erroneously based its finding of fact number 6 regarding visibility of the angle iron on opinion testimony that the court had already ruled was improper. We will not assume that the trial court erred by considering evidence that it had previously excluded. Moreover, Hiltbruner gave first-hand testimony on this issue. Although Hiltbruner testified that he could not see the deck edge in the shadowed area even though it was painted white, he also testified that had the angle irons been painted white, he would have been able to visualize and avoid them by stepping toward a different part of the deck. It was for the trial judge, as the finder of fact, to determine the weight to give to Hiltbruner's testimony. The evidence supports this challenged finding.
The parties initially disagreed regarding the appropriate standard of review to apply to review of the challenged findings in this case. Crowley subsequently agreed with Hiltbruner that the correct standard to apply is that of substantial evidence. We conclude that under either the substantial evidence standard, generally applicable in state courts, or the clearly erroneous standard, which generally controls in federal courts, the findings in this case are supported by the record.
NOTICE
An employer is only liable under the Jones Act if it either knew or should have known of the dangerous condition, here the reasonable possibility of injury after falling over an angle iron. Hiltbruner argues that Crowley should have known of the unsafe condition of the deck. Crowley could be charged with constructive notice if, in the exercise of reasonable care, it ought to have known about or discovered the alleged dangerous conditions on the barge deck. If, by a reasonable inspection, Crowley could have discovered that condition, Crowley would be charged with knowledge of it.
Havens, 996 F.2d at 218; Williams v. Tide Water Assoc. Oil Co., 227 F.2d 791, 794 (9th Cir.), cert. denied, 350 U.S. 960, 76 S. Ct. 348, 100 L. Ed. 834 (1956).
See Vargas v. McNamara, 608 F.2d 15, 20 (1st Cir. 1979); Perry v. Morgan Guaranty Trust Co. of New York, 528 F.2d 1378, 1379 (5th Cir. 1976).
The placement and configuration of the angle irons were permanent conditions. The finder of fact could find that a reasonable inspection would have disclosed that the area was not reasonably safe for a seaman to gain access to the barge in a safe manner. In short, Crowley had prior notice of the condition that caused the injury in this case.
CAUSATION
Crowley also argues that Hiltbruner failed to make out a case of causation to support his claim. We again disagree.
"[T]he test of a jury case [on the question of causation] is simply whether the proofs justify . . . that employer negligence played any part, even the slightest, in producing the injury . . . for which damages are sought." This test, often described as a featherweight causation standard, allows a seaman to survive summary judgment by presenting even the slightest proof of causation.
Ribitzki, 111 F.3d at 664.
Id.
The evidence shows that there was a causal connection between Crowley's breach of its duty to provide a safe workplace and the injury that Hiltbruner suffered under the featherweight standard that controls this case. Crowley painted trip hazards with white paint so that its workers could better see them and avoid injury. The angle irons on the barge deck were permanently attached to the deck and stuck up perpendicular to the deck surface, like other items such as cleats and hatch covers that were painted white. But Crowley did not paint the angle irons white. Hiltbruner was injured at night when the angle irons were in shadow, and he testified that had the angle irons been painted white, he would have been better able to visualize and avoid them. This evidence is sufficient to support the trial court's decision under the extremely light negligence standard applicable here.
Crowley cites Dessi v. Pennsylvania R. Co. in arguing that Hiltbruner failed to prove causation. In Dessi, just after a railroad worker jacked up one corner of a railroad car, he was knocked unconscious. Although he did not recall the accident, he theorized that the handle of the jack he was using suddenly moved and caused the injury. The court concluded that this theory was just one of several, that Dessi failed to identify any defect in the jack, and that there was no evidence that the railroad's negligence caused the jack handle to act in this way.
251 F.2d 149 (3rd Cir. 1958).
In this case, there was no disagreement regarding how Hiltbruner was injured. He lost his balance while jumping from the dock to the barge deck, stepped on the angle iron, and hurt his knee. Hiltbruner identified the failure to paint the angle iron white, and presented sufficient evidence to support the finding that Crowley was negligent and that this was a cause of the injury.
UNSEAWORTHINESS
Crowley argues that because the trial court erred in finding a duty to paint the angle irons white, it also erred in finding that the barge was not seaworthy. We disagree.
A shipowner has an absolute duty to furnish a seaworthy ship. A vessel's condition of unseaworthiness may arise from any number of circumstances, including an insufficient number of men assigned to perform a shipboard task, or the existence of a defective condition, however temporary, on a physical part of the ship. To establish a claim for unseaworthiness, Hiltbruner must establish: (1) that the warranty of seaworthiness extended to him and his duties; (2) his injury was caused by a piece of the ship's equipment or an appurtenant appliance; (3) the equipment used was not reasonably fit for its intended use; and (4) the unseaworthy condition proximately caused his injuries.
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S. Ct. 926, 932, 4 L. Ed. 2d 941 (1960).
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499, 91 S. Ct. 514, 517-18, 27 L. Ed. 2d 562 (1971).
Ribitzki, 111 F.3d at 664-65 (citing Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1310-12 (9th Cir. 1970); Faraola v. O'Neill, 576 F.2d 1364, 1366 (9th Cir. 1978)).
The record establishes that Hiltbruner has established each of the four elements required to prove unseaworthiness. The warranty of seaworthiness extended to him as a seaman on the barge. His injury was caused by the failure to paint the angle irons white, and the condition of those angle irons made them unfit for their intended use under the circumstances of this case.
The trial court did not err in concluding that Crowley's failure to paint the angle irons white made the barge unseaworthy.
JUDGMENT AS A MATTER OF LAW
Crowley contends that the trial court should have granted its motion for judgment as a matter of law because Hiltbruner did not meet the burden of proof for negligence or unseaworthiness. We disagree.
"Granting a motion for judgment as a matter of law is appropriate when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party." "Such a motion can be granted only when it can be said, as a matter of law, that there is no competent and substantial evidence upon which the verdict can rest." "Substantial evidence is said to exist if it is sufficient to persuade a fair-minded, rational person of the truth of the declared premise." When reviewing a trial court ruling on such a motion, we apply the same standard as the trial court.
Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250, 254 (2001) (citation omitted).
Id. (citation omitted).
Id. (citation omitted).
Id.
The evidence that Hiltbruner put on in his case in chief provided factual issues for the trier of fact to resolve for both the Jones Act claim as well as the unseaworthiness claim. Thus, at the time of the motion there was substantial evidence to persuade a fair-minded person of the validity of the claims. In any event, there was a trial of all issues, and we cannot discern any cognizable prejudice to Crowley in having to litigate the issue at trial. In short, the trial court did not err in implicitly denying the motion.
FRIVOLOUS APPEAL
Hiltbruner requests sanctions under RAP 18.9(a) on the basis that there are no debatable issues in Crowley's appeal and that the appeal is therefore frivolous. We deny that request.
"An appeal is frivolous . . . if it raises no debatable issues and is so devoid of merit that there is no reasonable possibility of reversal." Although we see no basis to reverse the trial court's decision, we do not find that Crowley's appeal meets this standard, given the record before us. We accordingly deny Hiltbruner's request for sanctions.
Andrus v. Dep't of Transp., 128 Wn. App. 895, 900, 117 P.3d 1152 (2005), review denied, 157 Wn.2d 1005 (2006).
We affirm the judgment.
WE CONCUR: