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finding petitioner had not borne his burden of establishing cause
Summary of this case from Slape v. HaaseOpinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, Chief Judge, Presiding.
Before REAVLEY, ALARCON and McKEOWN, Circuit Judges.
The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the United States Court of Appeals, Fifth Circuit, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Plaintiff Jan Radacz complains that the district court erred in granting summary judgment against him on his Jones Act and unseaworthiness claims, and in entering judgment after a bench trial on his maintenance and cure claims. We affirm.
In considering a motion for summary judgment, "the court's ultimate inquiry is to determine whether the 'specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict based on that evidence." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987). We recognize that "[c]ourts should exercise special care in considering summary judgment in Jones Act cases which require a very low evidentiary threshold for submission to a jury." Lies v. Farrell Lines, Inc., 641 F.2d 765, 770 (9th Cir.1981). Insofar as Radacz's negligence and unseaworthiness claims are premised on his contention that the vessel lacked handholds or similar devices, we affirmed a district court decision considering similar facts in Matter of Hechinger, 890 F.2d 202 (9th Cir.1989). We agreed with and found dispositive the district court's finding "that the proximate cause of [the seaman's] injury was an Act of the or peril of the sea and not unseaworthiness or negligence on the part of the owner." Id. at 207. We quoted with approval the district court's findings that "the lack of handholds did not render the vessel unseaworthy," and that "[h]andholds are not standard equipment on presently manufactured vessels." Id.
Further, even if Radacz raised a fact issue on negligence or unseaworthiness, we conclude that a rational jury could not find for Radacz on the element of causation. Causation is an essential element of liability under the Jones Act and the maritime doctrine of unseaworthiness. Id. at 208 (Under the Jones Act "the claimant must establish that the act of negligence was a cause, however, [sic] slight, of his injuries."); Faralola v. O'Neill, 576 F.2d 1364, 1366 (9th Cir.1978) (To recover under an unseaworthiness theory, "the unseaworthiness would have had to have been a substantial factor in producing appellant's injuries."). On this sparse record, we conclude that a rational jury could not find that the lack of handholds "played any part at all" in causing Radacz's injury. Lies, 641 F.2d at 771. By his own complaint, he "was violently thrown across the galley" of the vessel "due to a sudden, violent movement of the vessel." He testified that he went "flying in the air" after the jolt, and that "[t]here was one big movement, and everyone seemed to be hurt." Further, he offered the declaration and accompanying drawing of a fellow seaman, Vidal, who indicated that Radacz was standing near a table in the interior of the galley, and was thrown away from the walls of the galley and toward its center. On this record, we do not think a rational jury could find that handholds would have prevented the injury.
Radacz also complains of the lack of warning of the oncoming wave or other phenomenon that caused the violent movement of the vessel, and the lack of a hailer system in the galley. If he is complaining of a lack of warning of general storm conditions or high waves at the time, we note that he was an experienced seaman, and agree with the Seventh Circuit that "[t]here is no duty on the part of the officers of a vessel to inform an experienced seaman that the weather is rough or that there is a storm, such conditions being self evident to all personnel aboard ship." Repsholdt v. United States, 205 F.2d 852, 855 (7th Cir.1953) (quoting district court). If his complaint is that a particularly large wave slammed into the vessel, then he failed to offer proof that other crew members had sufficient time to warn him of such wave. We have noted that, under the Jones Act, "[a]lthough the duty to provide a safe ship is broad, the employer must have notice and the opportunity to correct an unsafe condition before liability will attach." Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir.1993).
Radacz complains that his employer Golden Age Fisheries was negligent in failing to place him ashore before continuing with the voyage. After a bench trial principally concerning Radacz's maintenance and cure claims, the district court found that Radacz failed to carry his burden of showing "that treatment he received aboard defendants' vessel worsened his condition." This finding is reviewed under the clearly erroneous standard. Fed.R.Civ.P. 52(a). This finding is not clearly erroneous, and establishes a failure of proof of damages causation on this negligence claim.
Similarly, Radacz complains that a chiropractor, to whom he was referred by his employer, caused further injury to his back. Assuming that this claim is part of his Jones Act negligence claim, and further assuming that Golden Age Fisheries can be held liable for the negligent treatment of a third-party physician, the district court found that Radacz had failed to establish that the chiropractor's treatment contributed to a worsening of his condition. This finding is not clearly erroneous.
In his appellate brief Radacz complains that the crew failed to properly employ an "anti-roll tank" on the vessel. However, he points to no summary judgment evidence, nor can we locate any, from which a rational jury could find that the vessel had such equipment, that the crew failed to employ it, and that such failure was a cause of his injury.
Radacz suggests that he raised a fact issue of negligence or unseaworthiness with evidence that Radacz fell between stationary stools, while there were movable benches elsewhere in the galley. The testimony of Radacz and the declaration of Vidal indicate that upon being thrown into the air, Radacz hit his head on a table, and then slid or fell to the floor between two benches. After summary judgment was granted, Radacz moved for reconsideration, and offered the supplemental expert affidavit of a licensed merchant officer. The expert, who relied on the testimony of Radacz and Vidal as to the circumstances of the accident, opined that "[b]enches probably would not have broken Mr. Radacz' ribs and would not have allowed him to crash to the deck beneath the table." The court denied the motion for reconsideration. The denial of a motion for reconsideration is reviewed for abuse of discretion. Bellus v. United States, 125 F.3d 821, 822 (9th Cir.1997). We find no abuse of discretion, considering that (1) Radacz offered no reason for waiting until summary judgment was granted to offer this new theory, (2) the expert did not opine that the vessel was unseaworthy or that Golden Age Fisheries was negligent in using fixed stools instead of movable benches, (3) the expert offered no opinion that movable benches would have even stayed in place so as to break Radacz's fall, (4) the opinion of the expert, who did not witness the accident, that Radacz "crashed" to the deck after he hit his head was contradicted by Vidal, who attested that Radacz "slid, and then fell down" between the stools after hitting his head; (5) the expert did not purport to have any expertise in mechanics, accident reconstruction, the mechanics of flying objects, or the human body and its ability to withstand broken bones, and (6) the expert made no attempt to balance the purported advantage of movable benches over fixed stools in these circumstances against the obvious dangers posed by large movable objects on an oceangoing vessel.
Radacz argues that the doctrine of res ipsa loquitur applies. This is not a res ipsa loquitur case, one where the injury would not ordinarily occur in the absence of negligence. The fact that Radacz was thrown and injured when the vessel hit rough waters does not by itself create a presumption of negligence. On the contrary, the finder of fact could find that "the cause of the accident was an Act of God or peril of the sea." Hechinger, 890 F.2d at 209.
Radacz also appeals the judgment on his maintenance and cure claims. Under general maritime law, a seaman injured while in service of a ship is entitled to maintenance and cure, consisting of (1) maintenance--a living allowance for food and lodging, (2) cure--reimbursement for medical expenses, and (3) unearned wages from the onset of injury until the end of the voyage. Lipscomb v. Foss Maritime Co., 83 F.3d 1106, 1109 (9th Cir.1996).
The district court, after several pretrial orders granting maintenance and cure, entered a final judgment ordering an additional eight weeks of physical therapy, and otherwise rejecting Radacz's claims. Insofar as Radacz's maintenance and cure claims encompass claims that he was not placed on shore earlier and that the chiropractor injured his back, the district court did not clearly err in rejecting these claims, as discussed above.
Radacz complains that the untimely payment of maintenance resulted in his being evicted twice from his home. The district court found that Radacz had failed to carry his burden of proof in showing that his eviction was attributable to delays in payment of maintenance and cure. Radacz testified that he was paid sporadically, but also conceded that he received about $600 a month in maintenance. The district court reasoned: "It is clear to the court that even accepting plaintiff's time chart, plaintiff has failed to establish that plaintiff's evictions were due to the delay of maintenance checks. It is clear from the time frame and when the delays occurred, that plaintiff must have already been in arrears on his rent and must have been in arrears long before there was delay in his maintenance checks." The court also reasoned that even if the maintenance checks were not regularly paid, Radacz "has an obligation to budget" and "there could be many reasons he didn't pay his rent." The district court did not clearly err in finding that Radacz had failed to carry his burden of proof on this claim.
Radacz argues that he is entitled to attorney's fees and punitive damages. Attorney's fees are available when the defendant's failure to pay maintenance and cure has been "willful and persistent." Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495, 1501 (9th Cir.1995). We have also stated that attorney's fees are allowed "only when the failure to provide maintenance and cure was arbitrary, recalcitrant or unreasonable." Kopczynski v. The Jacqueline, 742 F.2d 555, 559 (9th Cir.1984). The district court found that Radacz had not carried his burden of showing that the untimeliness in paying maintenance and cure was wilful. This finding is not clearly erroneous. The court noted that on some occasions Radacz "failed to provide timely medical reports, and a failure to provide these timely medical reports resulted in a delay in the issuance of checks, and often a breakdown in communication." We also note that the record reflects that Radacz sought treatment from numerous health care professionals, including an optometrist, a surgeon, physical therapists, a neurologist, and an psychologist. That fact that Golden Age Fisheries may have questioned the need for treatment in some instances, or whether such treatment related to his injury at sea, does not render its conduct so recalcitrant or unreasonable as to justify an award of attorney's fees. For example, the district court found that further treatment by the optometrist was unnecessary, and rejected numerous other claims for maintenance and cure as well. As for punitive damages, we have held that they are not available in a maintenance and cure action. Glynn, 57 F.3d at 1505.
Radacz complains that a statement by Rose Snyder, an employee for defendant involved in paying maintenance and cure to Radacz, to the effect that Radacz would be forced to live under a bridge, should have been admitted as an admission by the agent of a party opponent. There is no merit to this argument because Radacz testified about Snyder's statement without objection. Snyder was also asked whether she made the statement, and she flatly denied that she did. The court did not exclude this evidence. Its relevance, and the credibility of the witnesses, were matters properly before the trial court as trier of fact.
Finally, Radacz argues that the acts of defendant in denying him maintenance and cure amounted to intentional infliction of emotional distress. Radacz did not allege this claim under state law, since he did not allege, in his complaint or his appellate briefing, that the jurisdiction of the district court rested in part on diversity or supplemental jurisdiction. Assuming that such a claim is cognizable as a maritime maintenance and cure claim, the district court did not clearly err in finding that defendant's untimeliness in paying maintenance and cure was not wilful, but the result of miscommunications. This finding, we think, precludes an award for intentional infliction of emotional distress.
AFFIRMED.