Bunn v. Oldendorff Carriers GMBH & Co. KG

• Decision Date: 17 July 2013
• Docket Number: No. 12–1888.,12–1888.
• Citation: 723 F.3d 454
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: Richard BUNN, Plaintiff–Appellee, v. OLDENDORFF CARRIERS GMBH & CO. KG, Defendant–Appellant.

723 F.3d 454

Richard BUNN, Plaintiff–Appellee,

v.OLDENDORFF CARRIERS GMBH & CO. KG, Defendant–Appellant.

No. 12–1888.

United States Court of Appeals, Fourth Circuit.

Argued: May 16, 2013.

Decided: July 17, 2013.

ARGUED:Geoffrey S. Tobias, Ober, Kaler, Grimes & Shriver, Baltimore, Maryland, for Appellant. Bernard Jerome Sevel, Arnold, Sevel & Gay, P.A., Towson, Maryland, for Appellee. ON BRIEF:Jack R. Daley, Ober, Kaler, Grimes & Shriver, Baltimore, Maryland, for Appellant. Gerald F. Gay, Arnold, Sevel & Gay, P.A., Towson, Maryland, for Appellee.

Before MOTZ, DAVIS, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge DAVIS wrote the majority opinion, in which Judge WYNN joined. Judge MOTZ wrote a dissenting opinion.

DAVIS, Circuit Judge:

Defendant–Appellant Oldendorff Carriers GmbH & Co. KG (“Oldendorff”) appeals from a judgment entered on a jury verdict under § 5(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b) (the “Act”). The claim arose when the longshoreman, Plaintiff–Appellee Richard Bunn, slipped and fell on Oldendorff's ship, the CHRISTOFFER OLDENDORFF (“the ship”), during loading operations in the Baltimore port. For the following reasons, we reject Oldendorff's challenges and affirm the judgment.

I.

Bunn, who worked for the stevedore, CNX Marine Terminals, Inc. (“CNX”), slipped on ice and injured himself while loading coal onto the ship, a bulk carrier, on February 16, 2007. We set forth the facts in the light most favorable to Bunn, the prevailing party at trial.

CNX shift supervisor Joseph White boarded the ship around 7 p.m. on February 15, 2007, to tell chief officer Andriy Fediv that CNX employees intended “to start[ ] loading that night.” J.A. 113–14. Although the ship had been docked “a few days,” CNX had been “unable to load [the] vessel” because of “some winter weather.” Id. at 113. When White boarded the ship, “[he] noticed that ... there was ice covered throughout the ship, with the exception of ... a pathway back from the gangway to the deckhouse.” Id. at 114. White “instructed” Fediv, “[W]e need a clear path to the holds to be able to load this vessel.” Id. Fediv, who knew “which hatches [the CNX employees] were going to be [loading],” responded “[t]hat [the ship's crew] would salt and sand between the holds.” Id. at 115–16.¹

Based on this conversation, White told longshoreman Christopher Moxey (before the loading operation started) that the ship's crew was “going to treat the ship and make sure it was safe” by “[s]alt[ing] it, sand[ing] it, [and] shovel [ing] it.” J.A. 86–88. Hours later, when Moxey and Bunn walked onto the ship, they found the area between the gangway and the deckhouse, and between the starboard rail and hatch number five, “[p]erfectly clear” of ice. Id. at 88–89.

Meanwhile, Bunn had arrived at the terminal at 6 p.m. on February 15, 2007, and began his 12–hour shift an hour later. His job was “to clean the terminal and to spread salt, and to go around and make sure all the equipment ... was.... fueled and running....” J.A. 223. Sometime between midnight and 1 a.m. on February 16, 2007, White approached Bunn to discuss loading the ship. Id. at 30, 224. Specifically, White instructed Bunn to work onboard the ship during the night to assist Moxey in the loading operation. Bunn asked:

well, you want me to go now? [White] said no, take your time, finish lunch. He said they're getting the ship ready and we're still finishing up getting the terminal ready.

Id. at 224–25. White told Bunn he would call him or Moxey by radio when the ship was safe to load. Id. at 225.

In due course, Bunn and Moxey “had the instruction that it was okay to go up on the ship, the ship was ready,” and the two boarded the ship around 1:30 a.m. on February 16, 2007. J.A. 177–78. Bunn testified:

When we first got up on [the] deck, we could see a clear path to the number five hatch, and looking towards the deckhouse, you could see there was a path made to the deckhouse.

Id. at 178. Bunn and Moxey began loading coal into the number five hatch. Id. at 178. During the loading process, coal moves from a silo to a ship loader, id. at 121, “a giant crane that hangs over the ship,” id. at 179.

It has a boom with a conveyor belt on it that carries the coal. At the end of the boom, it has a spoon that comes down that goes in the hold. It has a spoon that rotates, and that directs the coal.

Id. at 179. Bunn's job was to be on the ship and help guide the coal as it was loaded into the holds.

Being that the ship loader operator is up in the air, and he sits on one side of the machine, he can't see exactly what we can see when we're close to the hold. So in order to keep everything safe, we have to watch his equipment, that he doesn't hit the hatch cover, and also direct him on where's the proper places to put the coal.... [T]he only way I see it is if I lean forward over the hold, I can see down in there how the coal is building up.

Id. at 179–80.

After loading the number five hatch, Bunn told Moxey to warm himself in the deckhouse; Bunn walked forward to load the number three hatch, “holding onto the hand rail on the side of the ship,” J.A. 180–82, whereupon the accident occurred:

It was nighttime. It's not much lighting when you get further past the beginning of the ship. At the beginning of the ship, the deckhouse has lights. But as you get down, the lighting is very poor.

* * *

Well, I remember coming off the path, and it felt like I stepped up a little bit. I could tell my surface changed a little.

I took a couple steps, and the next thing I knew, I had slipped and fell right then, boom; but I caught myself with my knees and my hands when I fell.

* * *

Well, then I realized that I kind of hurt myself, so I took my time. Then I figured well, maybe I'm just on a patch of ice that I didn't see and maybe I need to find where this path is.

So I stood up and I said I'm going to slowly walk, take little steps toward the hold. I still needed to get to the hold.... So I started to walk towards the hold, and no more than one, two steps and boom. My feet came out from underneath of me and I landed on my back and my elbow.

Id. at 182–84.

After Bunn's fall, Moxey told chief officer Fediv that “the ship was icy forward” and that it needed to be salted. J.A. 90. Fediv responded that “he only had a limited supply of salt.” Id. at 91. About a half hour later, Moxey loaded coal into hatch number seven. Id. at 92. When he returned to hatch number three, he “noticed that it was still icy.” Id.

At the close of Bunn's case, and again at the conclusion of all the evidence, Oldendorff moved for judgment as a matter of law.² The company argued (as it had in seeking summary judgment earlier) that it owed no duty under the Act to warn of the open and obvious danger posed by the presence of ice in the areas where the longshoremen would be working. The district court denied the motions, reasoning that “liability can attach to [a] ship owner” that “voluntarily and affirmatively undertakes to remedy an [otherwise open and obvious] unsafe condition, but fails to do so.” Bunn v. Oldendorff Carriers GmbH & Co. K.G., No. WMN–10–255, 2012 WL 2681412, at *1 (D.Md. July 5, 2012). The court noted that, based on White's testimony, the jury could conclude that the ship–––on the unquestioned authority to do so of the chief officer, Fediv—had “voluntarily assumed the responsibility for salting and sanding the ice in the places where he knew CNX personnel would be working.” Id. at *2.

The district court also declined to give the following jury instruction, requested by Oldendorff:

In the absence of any agreement, the ship is not responsible for any open and obvious condition.

J.A. 84. The court instructed the jury as follows:

The plaintiff's claims in this case are governed by the law that is set out in what we know as the Longshoreman and Harbor Workers Act. In accord with the law, your basic determination in this case is going to be to decide whether negligence on the part of the operator of the vessel CHRISTOPHER OLDENDORFF caused or directly contributed to the plaintiff's accident on or about February 16, 2007, and the damages claimed to have resulted from that occurrence....

* * *

Negligence, simply stated, is the failure to exercise reasonable care under the existing circumstances.

But once the loading or the unloading of a ship by a stevedoring company has begun, the responsibility for safe working conditions is generally the burden of the terminal or the stevedoring company, in this case, CNX Marine Terminal. A shipowner, Oldendorff Carriers in this case, will only be responsible or liable for injury resulting directly from an unsafe condition on the ship of which it was aware and which it voluntarily agreed and undertook to remedy, but failed to do so.

Id. at 385–87.

The jury found Oldendorff negligent and calculated $1,863,750 in pecuniary and non-pecuniary damages. J.A. 406–07. The jury further found, however, that Bunn was also negligent, and that he was 15 percent at fault for the accident. Id.

Oldendorff renewed its motion for judgment as a matter of law and moved alternatively for a new trial, arguing that the court had erred in refusing to give an instruction on the “open and obvious” defense. Mot. for J. as a Matter of Law 17, Docket No. 86, Bunn, No. 1:10–cv–00255–WMN (D.Md. May 10, 2012). The court denied the post-trial motions, and this timely appeal followed.

II.

Oldendorff raises two principal assignments of error. First, Oldendorff argues that the district court erred in denying the motions for judgment as a matter of law. Second, Oldendorff argues that the district court misinformed the jury about the applicable law, and therefore erred in denying the motion for new trial. We discern no reversible error.³

A.

Oldendorff first argues that the district court erred in denying its motions for judgment as a matter of law because “[t]he open and obvious nature of the icy deck was...