Mattivi v. South African Marine Corp.," Huguenot"

• Decision Date: 20 February 1980
• Docket Number: No. 73,Docket 79-7073.,73
• Citation: 618 F.2d 163
• Parties: Attilio MATTIVI, Plaintiff-Appellant and Cross-Appellee, v. SOUTH AFRICAN MARINE CORP., "HUGUENOT", Defendant-Appellee and Third-Party Plaintiff, v. INTERNATIONAL TERMINAL OPERATING CO., INC., Texaco, Inc., New Jersey Export Marine Carpenters Inc., Colgate Palmolive Company and Manhattan Oil Transport Corp., Third-Party Defendants.
• Court: U.S. Court of Appeals — Second Circuit

618 F.2d 163

Attilio MATTIVI, Plaintiff-Appellant and Cross-Appellee, v. SOUTH AFRICAN MARINE CORP., "HUGUENOT", Defendant-Appellee and Third-Party Plaintiff, v. INTERNATIONAL TERMINAL OPERATING CO., INC., Texaco, Inc., New Jersey Export Marine Carpenters Inc., Colgate Palmolive Company and Manhattan Oil Transport Corp., Third-Party Defendants.

No. 73, Docket 79-7073.

United States Court of Appeals, Second Circuit.

Argued November 1, 1979.

Decided February 20, 1980.

COPYRIGHT MATERIAL OMITTED

William F. Cioffi, Brooklyn, N. Y. (Irving B. Bushlow, Theodore W. Bushlow, Brooklyn, N. Y., of counsel) for plaintiff-appellant and cross-appellee.

Ralph P. Cosentino, New York City (Healey & McCaffrey, Thomas H. Healey, New York City, of counsel) for defendant-appellee and third-party plaintiff.

Before MOORE, TIMBERS and VAN GRAAFEILAND, Circuit Judges.

MOORE, Circuit Judge:

In this personal injury suit brought under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), plaintiff Attilio Mattivi (Mattivi) appeals from a judgment notwithstanding the verdict granted by the United States District Court for the Eastern District of New York, Honorable Eugene H. Nickerson, Judge, in favor of defendant South African Marine Corporation (South African).

The facts are comparatively simple. In June, 1973 Mattivi was employed as a marine carpenter by New Jersey Expert Marine Carpenters, Inc. (NJEMC). At 8:00 A.M. on June 7, 1973 Mattivi arrived for his day's work at Pier 2 of the Army Base in Brooklyn, New York, and was assigned to plank over a section of metal drums stowed along hatch number five of South African's ship, the S.A. HUGUENOT. Working with two other carpenters, by 9:30 A.M. he completed a substantial area of the planking and began to run a catwalk down the middle. At that point, their work was interrupted by three men. One of the men (who Mattivi thought was dressed in a uniform) watched the other two men raise a rubber hose up from a barge docked alongside the HUGUENOT, run it over the planking, and drop it down into the hold of hatch number five. In the act of laying the hose, these men spilled some drops of oil on the planking. In Mattivi's words: "Then when they coupled the hose, spilled a couple drops of oil, then I turn to the man, the uniform man I say, `Look, you see this', he said, `Yes, don't worry about it, we take care of it' then I turn around and do my work." (App. 41-42). Mattivi never ascertained the identity of the three men or who their employers were.

Around 11:00 A.M. Mattivi decided to go get a fresh supply of nails. As he was walking on the planking he slipped off the platform and fell three or four feet to the metal deck below. Mattivi testified: "I went to get nails and I walk a couple of — I slip on my left foot on the oil and I drop my right foot on the hose and I fell down on my left side on the deck". (App. 44). One of the other carpenters helped Mattivi to his feet and led him to an area on the deck where he could sit down. Mattivi testified that he did not see any hose or oil as he was walking just before the fall, and that he did not know what caused him to slip. (App. 58-63, 73, 76-77). He never returned to hatch number five that day and never made a complaint to any sailors or to anyone else. He did mention the fall to his foreman, Frank Zovich, who told him to "take it easy" (Deposition of January 30, 1975, at 30-31) for the rest of the day. Mattivi did that, working at hatches number two and three handing down lumber to other carpenters until the 9:00 P.M. quitting time.

Mattivi sued South African pursuant to the recently amended LHWCA, 33 U.S.C. § 905 et seq., for the personal injuries he allegedly suffered as a result of his fall. South African impleaded the Manhattan Oil Transport Corporation (Manhattan), as well as the International Terminal Operating Company, Inc., Texaco, Inc., NJEMC, and the Colgate-Palmolive Company. The trial was split, and the issue of liability was tried before Judge Nickerson and a jury on November 28 and 29, 1978. Mattivi was the only witness at the trial and his testimony was the only proof as to liability introduced.¹ After all the evidence was presented, South African moved to dismiss. The court agreed with South African "that this is a case that simply should not go to a jury and that the Court should so rule" but he declined to dismiss the case before it had gone to the jury in light of this Court's disapproval of that procedure.² (App. 87, 82).

The jury returned with a verdict in favor of Mattivi. South African immediately renewed its motion to set the verdict aside, stating that despite the "somewhat conflicting and difficult" strand of LHWCA cases in this Circuit, it was hard to believe that "any court could find that the evidence is sufficient as a matter of law to make a finding of negligence on the part of the ship owner in this case". (Supp.App. 6). After a brief oral argument, Judge Nickerson ruled from the bench:

"I am going to grant the motion. I don't think there is any evidence from which the jury can properly infer that the defendant was negligent. I find no evidence from which they could infer in the first place that he slipped on anything. ...

Secondly, I find that no credible evidence that the ship had notice of a dangerous condition. The fact there were a couple of drops, whatever the testimony here is, at the time of the coupling, certainly was not sufficient to show that a dangerous condition existed at 11 o'clock or whatever time it was.

Thirdly, ... I find nothing in the record from which the jury might infer that even if it had notice of whatever condition was there that they could properly anticipate that someone would injure themselves on it.

And fourthly, I find, even if the three elements were proven, I find there's nothing in the record whatsoever or in the testimony to justify their inferring that someone else wouldn't clear that up who was actually engaged in that operation, whether it was the oil company or whoever it was that was operating that, which was not the ship's responsibility to put the oil in." (Supp.App. 12-13).

Judge Nickerson also granted a new trial in the alternative because he was "very disturbed" by the inconsistencies between Mattivi's testimony at his depositions and at trial and by the fact Mattivi signed his depositions without reading them. (Supp.App. 13-14). In view of the judgment n. o. v. for South African, the third party action was dismissed as moot.

Mattivi is now arguing on appeal that there was sufficient evidence in the record to support the verdict of the jury and that it was error for the trial court to grant judgment n. o. v. merely because it drew different conclusions from the facts than those fairly drawn by the jury. South African argues that the plaintiff's failure to prove the presence of a dangerous condition, notice, or causation gave the trial court no choice but to set the verdict aside. In holding the trial court properly granted judgment n. o. v., we are led to consider what the standard for finding sufficiency of evidence is in post-1972 LHWCA cases.

In the Second Circuit, the guiding principle trial courts apply when deciding whether to grant judgment n. o. v. for insufficiency of evidence is "whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached." Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970).³ Judge Anderson elaborated on this general standard in Armstrong v. Commerce Tankers Corp., 423 F.2d 957 (2d Cir.) cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970), a case involving a seaman's suit against his ship's owner for a thumb injury allegedly caused by his fellow seaman. The jury returned a verdict for the seaman, and the trial court granted the shipowner's motion for judgment n. o. v. Judge Anderson said:

"There was ... no evidence of any act, negligent or otherwise, committed by either of the plaintiff's fellow seamen which related to the injury, and the trial judge properly granted the motion to set aside the verdict in favor of the plaintiff and entered judgment n. o. v. for the defendants. Whether the motion is one to direct a verdict or to set aside a verdict which the jury has returned, the test applied by the court is the same. The evidence must be viewed in the light most favorable to the party other than the movant. The motion will be granted only if (1) there is a complete absence of probative evidence to support a verdict for the non-movant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against him. citations omitted.

* * * * * *

Although, as this Circuit has emphasized before, a jury's verdict is not lightly to be set aside, it is apparent that the jury's finding that some act of negligence was performed by the plaintiff's shipmates was sheer surmise and conjecture". Id. at 959-60.

See also Traupman v. American Dredging Co., 470 F.2d 736 (2d Cir. 1972) and Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969). Thus, when deciding whether to grant a judgment n. o. v., the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n. o. v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could...