Chizmar v. Malpaso Prods. Corp.
| Decision Date | 19 October 2011 |
| Docket Number | B228598 |
| Parties | JAMES CHIZMAR, JR., Plaintiff and Appellant, v. MALPASO PRODUCTIONS CORPORATION et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VC050180)
APPEAL from a judgment of the Superior Court of Los Angeles County. Patrick T. Meyers, Judge. Affirmed.
Stolpman, Krissman, Elber & Silver, Dennis M. Elber and Donna Silver for Plaintiff and Appellant.
Cox, Wootton, Griffin, Hansen & Poulos, Terence S. Cox and Max L. Kelley for Defendants and Respondents.
Appellant James Chizmar, Jr., was injured working on the movie Flags of Our Fathers (Malpaso Productions Corporation, 2006) as he attempted to transfer, in open water, from one boat into another. On appeal, he challenges a jury verdict rejecting his theories that Warner Brothers Entertainment, Inc. (Warner) was negligent under the Jones Act and provided an unseaworthy vessel. The Jones Act grants seamen1 who suffer personal injury in their employment the right to seek damages in a jury trial (46 U.S.C. § 30104), and federal law also requires ship owners provide their employees with seaworthy vessels. We affirm.
Listed in order of seniority, James O'Connell, Mark Vollmer, Richard Kuhn, and James Chizmar, Jr. (Chizmar) worked for Warner on the production of the feature film Flags of Our Fathers (Flags). As marine coordinator, O'Connell was responsible for the safety of his crew and for ensuring a safe workplace. Vollmer was responsible for the day-to-day assignments of the water safety personnel including Chizmar. Kuhn was a marine safety worker with more experience than Chizmar at boat operations. Chizmar was originally hired as a dive master (which reflects a high level of certification under the curriculum for recreational divers), but transferred to marine safety duties when he learned that Flags did not require any underwater diving.
Flags was filmed in the waters off the coast of Iceland. Warner purchased boats for the movie, including Zodiacs - inflatable rubber boats - and DUKW's - amphibious trucks, which travel both on land and in water. During filming, cast and crew members regularly transferred out of and into boats in the open water. Chizmar understood, andO'Connell confirmed, that Chizmar's duties included making boat-to-boat transfers. Chizmar had learned to make boat-to-boat transfers while working on other films.
It was undisputed that Warner prioritized safety and that Warner provided safety training prior to commencing filming. Safety Bulletin No. 15 described guidelines for boat-to-boat transfers. It was undisputed that a captain (or other superior officer) bore responsibility for considering the consequences of each order issued to a crew member. It was also undisputed that a crew member given an unsafe order was expected and entitled to refuse the order.
On August 25, 2005, Chizmar was injured as he attempted to follow Kuhn's order and complete a boat-to-boat transfer from a Zodiac into a DUKW. Shortly before the injury, Chizmar had been ordered to relinquish command of the Zodiac to Kuhn. Chizmar piloted the Zodiac to the DUKW, where Kuhn had been stationed. Kuhn transferred from the DUKW into the Zodiac and took control of the Zodiac. Chizmar then stepped on to the ledge of the DUKW in order to keep the deck of the Zodiac clear and allow other persons to transfer from the DUKW into the Zodiac. Chizmar held the Zodiac alongside the DUKW from his position perched on the DUKW's ledge for about five minutes. Chizmar testified that he did not immediately fully transfer into the DUKW because he believed that he would return to the Zodiac. But, in his deposition, Chizmar acknowledged that there were too many people in the Zodiac for him to return to it.
After Kuhn and others transferred from the DUKW into the Zodiac, Kuhn ordered Chizmar to transfer from the Zodiac into the DUKW. As a superior ordering a crew member to perform a task, Kuhn bore responsibility for Chizmar's safety. Chizmar concluded that he could safely transfer into the DUKW and that he did not require assistance. Following Kuhn's order, Chizmar started to move into the DUKW by lifting his right leg over the 28-inch railing of the DUKW, but the DUKW lurched, and Chizmar fell into the DUKW, twisting his left knee.
Chizmar testified that the following accurately summarized what happened: Chizmar's left knee was severely injured and prevented him from working as a commercial diver, his chosen profession.
Michael Waters, a marine coordinator and Chizmar's expert, opined that Warner should have loaded the Zodiac on the beach, eliminating the need for a boat-to-boat transfer. Waters further opined that Warner should have built steps into the DUKW to assist with boat-to-boat transfers. Waters criticized Kuhn for ordering Chizmar into the DUKW because he "ordered his only other qualified marine crew member out of his boat [the Zodiac] . . . ." On cross-examination, Waters acknowledged that he was "very beholden" to Chizmar's father and at least some part of his testimony was speculative. Waters also acknowledged that he had never worked in a DUKW and did not know how easy it was to transfer into a DUKW from another boat.
Defense expert Gary Moran, a forensic biomechanist, testified that an able-bodied person could safely transfer from a Zodiac to a DUKW. He further testified that Chizmar's position on the ledge of the DUKW was an unsafe position. Andrew Ulak, a naval architect and defense expert, testified that loading the Zodiac on the beach was more hazardous than requiring a boat-to-boat transfer because of the risk of the Zodiac rolling over.
On January 23, 2008, Chizmar sued, among others, Warner and Malpaso Productions Corporation (Malpaso). In his first amended complaint, Chizmar asserted causes of action under the Jones Act, maritime law, and general negligence.2 He alleged that he was injured while working "in the waters off of Hefnir, Iceland as part of a movie production, [when] directed to . . . transfer . . . passengers and equipment from one fleet vessel to another in high seas inside the ocean 'break line.'" He alleged that the vesselswere unseaworthy. He further alleged that he "was involved in a transfer from one vessel to another when an unsafe work method caused him to lose balance and fall." According to Chizmar, "[t]his unsafe work method was caused by defendant Warner Bros. Entertainment Inc.'s refusal to implement safety planning and procedures . . . ."
Prior to trial, the trial court found Warner could not be held liable for punitive damages. The court relied on evidence of Warner's safety guidelines, safety bulletins and safety meetings, as well as Chizmar's experience and acknowledgement that he could have asked for assistance. The court found that no reasonable juror could conclude respondents acted with oppression, fraud, malice, or even gross negligence.
On June 4, 2010, pursuant to Code of Civil Procedure section 998, Malpaso offered Chizmar $250,000 to settle his lawsuit against Malpaso (998 offer). The trial court concluded that Chizmar did not validly accept the 998 offer. The trial court subsequently granted Malpaso's unopposed motion for nonsuit.
During closing argument, Chizmar's attorney focused heavily on the amount of damages. With respect to liability, he argued that Warner could have loaded the Zodiac on the beach eliminating the need for a boat-to-boat transfer and the need for Chizmar to perch on the ledge of the DUKW. Counsel argued that Kuhn was obligated to refrain from exposing Chizmar to risks and to correct unsafe acts. Counsel argued there was no reason to order Chizmar into the DUKW because there was room in the Zodiac for him. Finally, counsel argued the DUKW was not seaworthy because it did not have steps.
The jury concluded that Warner was not negligent. It also found neither the Zodiac nor the DUKW was unseaworthy. Because it found Warner was not negligent, the jury was not required to consider causation or contributory negligence. The trial court entered judgment in accordance with the jury verdict, and Chizmar appealed from the judgment, the posttrial order denying his motions for reconsideration and reversal of the nonsuit, and the posttrial order awarding costs and fees. The order denying reconsideration was not appealable (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633), but we consider thepropriety of the court's ruling with respect to the 998 offer because Chizmar timely appealed from the judgment.
Chizmar challenges (1) the sufficiency of the evidence supporting the finding that Warner was not negligent, (2) the court's rejection of several proposed instructions, and (3) the court's finding that Chizmar never validly accepted Malpaso's 998 offer. Chizmar also argues that because reversal is warranted on the merits, the order awarding costs to Warner and Malpaso must be reversed. As we explain, no argument has merit.3
Summarizing the evidence most favorable to him, Chizmar argues that the evidence was insufficient to support the findings that Warner was not negligent and that the Zodiac and DUKW were not unseaworthy.
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