Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1991)

MEMORANDUM^* 

Appellant Daniel Prosser contends on appeal that genuine issues of material fact preclude dismissal of his Jones Act and unseaworthiness claims by summary judgment. We agree and reverse the grant of summary judgment.

The district court held that Prosser's decision to lift the freezer plug by himself was the sole proximate cause of the injury to his arm. While it cannot be doubted that if Prosser had not tried to lift the freezer plug he would not have been injured, the record indicates issues of fact demonstrating several possible "causes" for his attempting to do so. The trial court's ruling on proximate cause was too narrow.

"Causation is generally a question of fact for the jury, unless the proof is insufficient to raise a reasonable inference that the act complained of was the proximate cause of the injury." Lies v. Farrell Lines, Inc., 641 F.2d 765, 770 (9th Cir. 1981) (internal quotations omitted). As the court further stated in Lies : "Courts should exercise special care in considering summary judgment in Jones Act cases which require a very low evidentiary threshold for submission to a jury." Id. Specifically, when examining causation, Lies requires that " [j]udicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury." Id. at 771 (quotation omitted) (emphasis added).

Likewise, we cannot agree with the district court on the seaworthiness claim. A vessel is unseaworthy if it is undermanned or poorly manned. Moschi v. Steamship Luckenbach, 424 F.2d 1060, 1061 (5th Cir. 1970). Moreover, the duty to provide a safe course of conduct lies primarily with the vessel owner. Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1355 (5th Cir. 1988). To establish proximate cause for an unseaworthiness claim it must be shown that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that "the injury was either a direct result or a reasonably probable consequence of the unseaworthiness." Johnson, 845 F.2d at 1354; see, Lies, 641 F.2d at 771. Issues of fact remain concerning whether the acts of the vessel owner contributed to the injury suffered by Prosser.

REVERSED AND REMANDED.