Joyce v. Atlantic Richfield Co.

• Decision Date: 01 July 1981
• Docket Number: No. 79-1772,79-1772
• Parties: Thomas D. JOYCE, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, a Pennsylvania corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 676

651 F.2d 676

Thomas D. JOYCE, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, a Pennsylvania corporation,

Defendant-Appellee.

No. 79-1772.

United States Court of Appeals, Tenth Circuit.

Argued Jan. 26, 1981.

Decided March 26, 1981.

Rehearings Denied May 27 and July 1, 1981.

Larry D. Myers, Colorado Springs, Colo., for plaintiff-appellant.

W. Bruce Kopper, Colorado Springs, Colo. and Gerald T. Gelpi of Gelpi, Sullivan, Carrol & LaBorde, New Orleans, La., for defendant-appellee.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

Thomas D. Joyce appeals from the denial of his motions for judgment notwithstanding the verdict, and, alternatively, new trial in an action seeking damages for injuries he sustained aboard the SS ARCO SAG RIVER.

The SS ARCO SAG RIVER is an oil tanker operated by Atlantic Richfield Company (Arco) under a bare boat charter. Joyce was employed by Arco as an ordinary seaman aboard the vessel for a voyage from Long Beach, California to Drift River, Alaska.

On July 24, 1974, following the completion of his watch, Joyce was ordered by the chief mate to clean the starboard spillage traps near the oil cargo hook up equipment. In order to obtain a cleaning solvent for his task, Joyce had to traverse the main deck, walk up a metal ladder to the poop deck, continue aft and then up a second ladder to the boat deck. It was on the boat deck that the cleaning solvent (Aquanox) was stored in upright fifty-five gallon drums lashed to the ship's rails approximately four steps from the top of the ladder. The normal method of transporting the solvent back to the area of usage was by hand-carried five gallon buckets.

Upon reaching the boat deck, Joyce noticed that Aquanox was on the deck near the storage drums. This was a common condition, causing the deck to be "messy and slippery." R., Vol. II, p. 97. The slippery condition of the deck had been aggravated by a recent rain and fog.

Joyce proceeded across the deck to the storage drums. He then filled his five gallon bucket, and began the journey back to the main deck. As he began down the athwartship ladder leading from the boat deck to the poop deck, his foot slipped, causing his left arm to be thrust between the handrail and the bulkhead. He fractured his left humerus mid-shaft.

The ship's master rendered first aid, splintered the break, and attempted to make Joyce comfortable. Two and one-half days later, Joyce was evacuated from the ship at Homer, Alaska. He was later flown to a United States Public Health Service Clinic in Anchorage, Alaska.

As a result of his injuries, Joyce filed the instant action for damages. The complaint prays for relief under the Jones Act, 46 U.S.C.A. § 688, the doctrine of unseaworthiness, and for want of adequate maintenance and cure. At the conclusion of trial, the jury returned a verdict finding Arco forty percent negligent and Joyce sixty percent negligent. No unseaworthiness was found. Judgment on the verdict was entered in favor of Joyce in the amount of $40,000.00. ¹

The primary issues presented on appeal are whether the District Court erred in: (1) denying Joyce's motion for judgment notwithstanding the verdict and (2) instructing the jury on the issue of contributory negligence. Other issues are raised. In light of our disposition, however, it is not necessary to reach them.

Judgment Notwithstanding the Verdict

When faced with a motion for judgment notwithstanding the verdict, the standards by which the prerequisite motion for directed verdict is judged control. Barnett v. Life Insurance Company of the Southwest, 562 F.2d 15 (10th Cir. 1977). Judgment notwithstanding the verdict may only be granted where the evidence "points all one way and is susceptible of no reasonable inferences that sustain the position of the party against whom the motion is made." Bertot v. School District No. 1, 522 F.2d 1171, 1178 (10th Cir. 1975). See Barnett v. Life Insurance Company of the Southwest, supra (citing cases); Burger Train Systems, Inc. v. Ballard, 552 F.2d 1377 (10th Cir. 1977) (per curiam), cert. denied, 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 132 (1977). A mere scintilla of evidence is insufficient to justify the denial of the motion. Symons v. Mueller Co., 493 F.2d 972 (10th Cir. 1974). However, since the grant of such a motion deprives the nonmoving party of a determination of the facts by a jury, judgment notwithstanding the verdict should be cautiously and sparingly granted. Cleverly v. Western Electric Co., 594 F.2d 638 (8th Cir. 1979) (per curiam). ²

On appeal, we employ the same standards of review as that of the trial court. General Wholesale Beer Co. v. Theodore Hamm Co., 567 F.2d 311 (5th Cir. 1978) (per curiam). The trial court's denial is error only where "there is no evidence or dispute or the evidence, although in conflict, is of such a conclusive nature that if a verdict were reached in favor of the party, judicial discretion would require that it be set aside." Ford Motor Credit Co. v. Milburn, 615 F.2d 892, 894 (10th Cir. 1980), quoting, Continental Oil Co. v. Natrona Services, Inc., 588 F.2d 792, 800 (10th Cir. 1978).

A.

We first address Joyce's contentions regarding his unseaworthiness claims in light of the standards outlined above. Caldwell v. Manhatten Tankers Corp., 618 F.2d 361 (5th Cir. 1980).

General maritime law imposes a duty upon shipowners to provide seaworthy vessels. Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed.2d 927 (1922). This duty requires that the vessel, her gear and crew, be reasonably fit for their intended use. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971); Waldron v. Moore-McCormack Lines, 386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967); Morales v. City of Galveston, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412 (1962). It is an absolute duty, independent of the duty of reasonable care mandated by the Jones Act. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The existence of actual or constructive notice on the part of the shipowner is not required, nor does liability depend on any concept of due diligence on the owner's part. Simply stated, any condition, even though transitory in character, rendering the vessel unfit for her intended use makes the vessel unseaworthy. Id. Normally this determination presents a question of fact for the jury. Dunlap v. G & C Towing, Inc., 613 F.2d 493 (4th Cir. 1980).

Without detailing our views, we conclude that the District Court's resolution of this issue was correct. We agree that evidence produced at trial showed Aquanox present on the deck around the storage drums when Joyce arrived at the scene and that this condition was chronic. This, at first blush, brings the case under the line of decisions exemplified by Schell v. Chesapeake & Ohio Ry. Co., 395 F.2d 676 (4th Cir. 1968). On further examination, however, we find the case controlled by Dunlap v. G & C Towing, Inc., supra.

Unlike Schell, supra, there exists here strong contradictory evidence concerning the possibility that Joyce may have subsequently spilled additional Aquanox, magnifying the slick on which he slipped. Assuming that additional solvent spilled, an added conflict exists as to whether the spill resulted from an allegedly defective barrel pump or solely from Joyce's own actions. A conflict similarly exists as to whether the steps on the ladder were properly painted and what the surface characteristics were.

The evidence here is also susceptible to the interpretation that the Aquanox present on the deck before Joyce's arrival constituted simply a film resulting from misting through pump operation under windy conditions. "The mere existence of such film does not necessarily constitute unseaworthiness." Dunlap v. G & C. Towing, Inc., supra, at p. 496. It is only when the film renders the area unfit for its intended use that liability attaches. Id. This, of course, requires consideration of safety features such as stair rails (present here) and the ladder's surface characteristics.

In this case it was a jury question whether the ladder and contiguous deck were reasonably fit for their intended use at the time of Joyce's injury.

B.

The Jones Act grants "(a)ny seaman who shall suffer personal injury in the course of his employment" the right to seek damages in a jury trial against his employer in the same manner as the Federal Employer's Liability Act (FELA), 45 U.S.C.A. § 51 et seq. allows claims by railroad employees. 46 U.S.C.A. § 688. Proof of negligence is essential to recovery under the Jones Act. Jacob v. New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166 (1942). Such negligence, however, may arise from a dangerous condition on or about the ship, failure to use reasonable care to provide a seaman with a safe place to work, failure to inspect the vessel for hazards and a variety of other breaches of the shipowner's duty of care. Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977). As with the doctrine of unseaworthiness, contributory negligence and assumption of the risk are not available to bar recovery by a seaman. Jacob v. New York, supra, 315 U.S. at p. 755, 62 S.Ct. at p. 855. Rather, a pure comparative negligence standard applies. Johannessen v. Gulf Trading and Transport Co., 633 F.2d 653 (2d Cir. 1980); 45 U.S.C.A. § 54.

In Jones Act cases, a more severe standard controls the determination of whether the grant of a defendant's motion for judgment notwithstanding the verdict is proper. Caldwell v. Manhatten Tankers Corporation, supra; Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). In those classes of cases, entry of a directed verdict is proper "only when there is a complete absence of probative facts" supporting the claimant's position. Id. at p. 370. Whether this standard also applies to motions to direct liability in the seaman's favor remains an open question. See Allen v....