Unpublished Disposition, 921 F.2d 281 (9th Cir. 1991)

MEMORANDUM^* 

Appellant Emmanuel Rapitis brought this Jones Act and unseaworthiness claim against appellee Sea-Land Corporation, alleging Sea-Land's negligence and the unseaworthiness of its vessel, the SL Kodiak, caused an injury to his back.

Rapitis, a 66 year old seaman, worked aboard the Kodiak as a QMED (qualified man engine department). A QMED is expected to perform all tasks assigned to him. The first engineer, Exum, ordered Rapitis to move three chainfalls, one at a time, up a ladder to a storage area 100 feet away. The chainfalls weighed between 40 and 80 pounds each. Normal procedure required Rapitis to place the chainfalls on his back and not let them drag on the deck of the ship. Exum did not offer the assistance of another crew member, and Rapitis did not request help.¹  While Rapitis was carrying the last chainfall he felt his back go out.

Before boarding the Kodiak, Rapitis checked a box in his declaration of health form indicating he had no prior back injuries. But in 1980 Rapitis was in an automobile accident and received a $50,000 settlement for a resulting back injury. Rapitis said he checked the box because he had worked "steady" for six and one-half years without having any problems with his back.

Wessels, a second engineer aboard the Kodiak with 38 years of experience at sea, stated it is "against all principles" for a seaman to carry a chainfall by himself, unless the seaman "drags it along the deck plates." He further stated he had "never heard of anyone ask [ing] a man to carry a two-ton chainfall any kind of distance without being assisted by someone else." When asked whether he would normally assign two people the same job assigned Rapitis, Wessels replied "I would, yes."

When subsequently asked whether carrying two-ton chainfalls is a one man job, Wessels stated, "Yeah, a man can carry a two-ton chainfall. Most people carry a two-ton chainfall around if they need it somewhere. If they need it somewhere where it's like a longer distance, they always get help." When asked the same question again, Wessels replied: "Yes you can give it to one man. Depends on his condition, you know, if it's an older man, like you know, I mean I'm 58 myself now, I wouldn't do it any more, but I could do it just as easily."

Based on these facts the district court concluded there were no genuine issues of material fact for trial and granted summary judgment. We reverse.

DISCUSSION

This court reviews the grant of a summary judgment de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). In our review we must determine "whether, viewing the evidence in a light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court applied the relevant substantive law." Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989) (citation omitted).

Rapitis sues under both the Jones Act and the doctrine of unseaworthiness. Under the Jones Act an employer is liable for the injuries of his crew when the employer is negligent. 46 U.S.C. § 688; 45 U.S.C. § 51 et. seq. But the negligence standard for personal injury actions brought under the Jones Act is substantially lower than in regular tort actions. Lies v. Farrell Lines, Inc., 641 F.2d 765, 770-71 (9th Cir. 1981) (Jones Act cases require a very low evidentiary threshold for submission to the jury); accord Miles v. Melrose, 882 F.2d 976, 984 (5th Cir. 1989), cert. denied, 110 S. Ct. 1783 (1990) ("A seaman in a Jones Act case has only a 'featherweight' burden of proof; he need prove only slight negligence, 'which can be accomplished by very little evidence.' ") (quoting Allen v. Seacoast Prods., 623 F.2d 355, 360 (5th Cir. 1980); Petersen v. Chesapeake & Ohio Ry., 784 F.2d 732, 740 (6th Cir. 1986) (same).

Because of the low standard of negligence, summary judgment is not favored in Jones Act cases: "Courts should exercise special care in considering summary judgment in Jones Act cases which require a very low evidentiary threshold for submission to the jury." Lies, 641 F.2d at 770. Summary judgments "are to be cautiously granted, and 'if there is to be error at the trial level it should be in denying summary judgment in favor of a full live trial.' This is especially true in the case of actions brought under the Jones Act." Id. at 772 (citations omitted).

Ship owners also have the duty of providing their crew with a seaworthy vessel. Negligent orders, having insufficient crew members, and assigning too few crew members to a job all breach this duty. See, e.g., Drachenberg v. Canal Barge Co., 571 F.2d 912, 918 (5th Cir. 1978); Mascola v. Pacific Coast Transport Co., 421 F.2d 1281, 1283 (2d Cir. 1970).

The district court found the relevant issues in the Jones Act claim to be 1) whether Sea-Land's order was "negligent"; and 2) whether the order "caused" Rapitis' back injury.²  The negligence and causation standards in maritime actions are well established in this circuit. "The general rule in personal injury actions brought in admiralty (both under the Jones Act and general maritime law) and under the FELA is that contributory negligence is not a complete bar to recovery but it does operate to reduce the amount of the damage award." Kopczynski v. The Jacqueline, 742 F.2d 555, 558 (9th Cir. 1984), cert. denied, 471 U.S. 1136 (1985).³  And 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, 641 F.2d at 770 (citation omitted). Proximate cause is "a mixed question of law and fact, which is generally sufficient to preclude summary judgment." Id.; Martinez v. Korea Shipping Corp., Ltd., 903 F.2d 606, 609 (9th Cir. 1990).

The district court granted summary judgment because Rapitis "knew" that his job aboard the Kodiak would require heavy lifting, and because he did not request assistance when lifting the chainfalls. But summary judgment should not be granted when a dispute is genuine, i.e., when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Under the liberal negligence and causation standards in Jones Act cases, Rapitis' negligence, if any, in accepting work as a QMED and in not asking for assistance would not bar a reasonable jury from returning a verdict in his favor; rather, it would operate to reduce the amount of a potential award. Kopczynski, 742 F.2d at 558. As succinctly put by the Fifth Circuit:

[A] seaman may fail to observe proper care for his own safety in failing to seek the help of others aboard ship, once he realizes or should realize that an assigned task is beyond his individual capacity. But that does not discharge the vessel from the responsibility of supplying adequate personnel available in the first instance for performance of the task.

Moschi v. Steamship Luckenbach, 424 F.2d 1060, 1061 (5th Cir. 1970) (emphasis added) (citation omitted).

A genuine issue therefore existed even if Rapitis accepted his job knowing it would require heavy lifting and did not ask for help with the chainfalls. In Jones Act cases the test for a jury case

is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes.... Judicial 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 or death.

Lies, 641 F.2d at 771 (quoting Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506-07 (1957).

The district court also reasoned summary judgment was appropriate because Rapitis did not reveal a prior back injury in his declaration of health form. But, as with contributory negligence, a seaman's failure to reveal a prior injury does not preclude a reasonable jury from rendering a verdict in his favor. The Supreme Court in Still v. Norfolk & Western Ry., 368 U.S. 35 (1961) held that an employee's fraud in failing to reveal a prior injury did not destroy his negligence claim brought under FELA. In applying Still's reasoning to admiralty cases, the Second Circuit reasoned:

We are unable to perceive any relevant difference in policy on this issue between the FELA and either the Jones Act or appellee's action for unseaworthiness which would dictate a different result here. (citation omitted). The decision in Still was predicated on the dominant congressional policy of compensating injured workers, overriding the alleged fraud in forming the employment relationship. The same overriding policy is present here.

Compton v. Luckenbach Overseas Corp., 425 F.2d 1130, 1133 (2d Cir.), cert. denied, 400 U.S. 916 (1970).

This court has come to the same conclusion: " [t]he decision in Still compels a holding that a person ... who is a 'seaman' and suffers injury in the course of his 'employment' ... within the ordinary meaning of those [two] words, is not barred from suit under the Jones Act because he conceals a material fact in applying for employment." Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 530 (9th Cir. 1962). Under Compton and Gypsum Carrier, a genuine issue existed even though Rapitis failed to reveal his prior injury.

Finally, the district court, reviewing Wessels' vacillating testimony, concluded the record as a whole indicated that lifting and carrying two-ton chainfalls is regularly done by one person. We must view the evidence in the record and the inferences therefrom "in a light most favorable" to Rapitis. Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Under this standard we believe a reasonable jury could conclude it was negligent for the first engineer to assign a 66 year old seaman the individual task of carrying three 40 to 80 pound chainfalls up a ladder to a storage area 100 feet away. A second engineer with 38 years experience stated it was against all principles for one person to carry such a chainfall, that he would normally assign two men to the task given to Rapitis, and that he had "never heard of anyone ask a man to carry a two-ton chainfall any kind of distance without being assisted by someone else." See supra, p. 2-3. These statements from an experienced seaman are probative; they suggest the first engineer's order may have been negligent. See Anderson, 477 U.S. at 249-50.

Wessels' subsequent statement that a seaman can carry a heavy chainfall by himself, depending on his age and condition, does not nullify these probative statements. All inferences in Wessels' testimony "are to be drawn in the light most favorable to the nonmoving party. Moreover, if the nonmoving party adduces direct evidence of a genuine issue of fact, such evidence is not to be weighed against the moving party's conflicting evidence, but rather is to be submitted to the trier of fact for resolution." Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987) (citations omitted). Even though a 66 year old seaman "can" carry a two-ton chainfall by himself, Wessels' testimony suggests it may be unsafe and negligent to ask him to do so.

REVERSED AND REMANDED.