Garrisey v. Westshore Marina Associates, 208--40618--I

Citation469 P.2d 590,2 Wn.App. 718
Decision Date18 May 1970
Docket NumberNo. 208--40618--I,208--40618--I
CourtWashington Court of Appeals
PartiesThomas M. GARRISEY, Appellant, v. WESTSHORE MARINA ASSOCIATES and William Garrett and Jack C. Mulliken d/b/a Garrett & Mulliken, Respondents.

Jackson, Ulvestad & Goodwin, Thor P. Ulvestad, Seattle, for appellant.

Reed, McClure & Moceri, Hugh A. McClure, Ronald J. Perey, Seattle, for respondents.

HOROWITZ, Acting Chief Judge.

Plaintiff, Thomas M. Garrisey, sued the defendants (Westshore), his employer, to recover damages for personal injuries sustained by him in the course of his employment while he was aboard a raft in Lake Union, a navigable lake located in Seattle. From a summary judgment in favor of the defendants, plaintiff appeals. The legal question presented is whether the Industrial Insurance Act (RCW Title 51) and the receipt by plaintiff of benefits thereunder precludes him from invoking the Jones Act remedy here asserted for negligence and for damages under the maritime doctrine of unseaworthiness.

During April, 1966, defendants, through Garrett & Mulliken (Garrett), undertook to erect a marina in Lake Union. In due course, the City of Seattle issued a building permit for the construction of the marina on a particular area of Lake Union shorelands pursuant to approved plans and specifications. The evidence describing the marina is somewhat sketchy. However, the undisputed evidence shows that the marina was built to float; was not anchored solid or piled in the ground; boats were to be moored in the marina in boat stalls; and the marina was to house some offices. Plaintiff was hired from Laborers Union Hall and paid by defendants to assist two carpenters in the marina construction. Garrett had built a raft on the construction site to transport materials from a dock to the marina site, the materials to be incorporated into the marina structure. A scaffolding was erected on the floor of the raft to hold these materials. The raft was not self-propelled. On April 7, 1966, the marina was still under construction and no boats were using the facility. On that date, lumber had been picked up from the dock and placed on the scaffolding on the raft for the purpose of being taken to the marina. While plaintiff was on the raft he was injured. The accident occurred when the plaintiff's side of the raft began to sink. According to the defendants' summary of the deposition testimony on the point 'as he tried to go through the scaffolding to the high side of the raft the whole scaffolding came over.', injuring him; and 'that the raft or scow was actually along side the dock at the time the accident occurred.' 1

Westshore paid premiums under the Industrial Insurance Act as a covered employer. Plaintiff filed a claim for benefits under the Industrial Insurance Act, asserting he was engaged in extra-hazardous employment within the terms of the act. By an order dated July 6, 1967, the Department of Labor & Industries approved plaintiff's claim and awarded him benefits totaling $8,130.86 for time loss, compensation for total temporary disability, medical expenses, medical treatment and hospitalization. The Department charged plaintiff's award against the account of employer Westshore.

The instant action was thereafter brought. The amended complaint alleged that plaintiff's injuries were caused by Westshore's negligence and the unseaworthiness of the 'barge' on which plaintiff was employed at the time of the accident. In the summary judgment there is a recital reading:

and both parties having further stipulated that the issue in the motion for summary judgment is whether or not plaintiff's activities at the time of the accident were of a local concern unconnected with commerce and navigation, * * *

The summary judgment then decrees:

That there being no substantial issue of fact that the plaintiff's activities at the time of the accident were of a local concern unconnected with commerce and navigation and that plaintiff being an employee of Westshore Marina Associates engaged in extra-hazardous activity cannot sue his employer.

Plaintiff rested his case entirely upon the allegations of his pleadings, the amended complaint being verified only by plaintiff's attorney. The only showing of facts was that made on behalf of the defendants. Under these circumstances, the following made by the defendants must be accepted as stating the established facts of the case. W. G. Platts, Inc. v. Platts, 73 Wash.2d 434, 438 P.2d 867 (1968); Stringfellow v. Stringfellow, 53 Wash.2d 639, 335 P.2d 825 (1959). 2

We then then to a consideration of whether under the admitted facts in this case, the court correctly determined as a matter of law that 'plaintiff's activities at the time of the accident were of local concern unconnected with commerce and navigation, * * *' A proper understanding of the matter requires a short summary of applicable legal principles. The nature and history of the remedies now available to an injured maritime employee against his employer have been much considered; E.g., G. Gilmore & C. Black, Law of Admiralty, ch. 6 (1957); 1 E. Benedict, American Admiralty, chs. IV, V, XV, XVI (6th ed. 1940); M. Norris, Maritime Personal Injuries (2d ed. 1959). 3

To determine the remedy available, an injured maritime employee must determine whether his claim for relief calls for a remedy concerning (1) activity within exclusive maritime and admiralty jurisdiction (Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686 (1930)); 4 in which case a state workmen's compensation act such as the Industrial Insurance Act remedy can have no application; (2) activity within exclusive state jurisdiction in which case a state workmen's compensation act remedy such as the Industrial Insurance Act applies (RCW Title 51) (W. R. Grace & Co. v. Department of Labor & Indus., 178 Wash. 4, 33 P.2d 659 (1934)); (3) activity of maritime but 'local concern' permitting operation of a state workmen's compensation act such as Washington's Industrial Insurance Act (Millers' Indemnity Underwriters v. Braud, 270 U.S. 59, 46 S.Ct. 194, 70 L.Ed. 470 (1926); Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922); Lahti v. Terry & Tench Co., 240 N.Y. 292, 148 N.E. 527 (1925), rev'd sub nom. State Industrial Board v. Terry & Tench Co., 273 U.S. 639, 47 S.Ct. 90, 71 L.Ed. 817 (1926)); 5 (4) activity within the 'twilight zone'; that is, when it is doubtful whether a case falls within class (1) or class (3). 6

Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), reversing Davis v. Department of Labor & Indus., 12 Wash.2d 349, 121 P.2d 365 (1942). In a class (2) case, the remedy of the Industrial Insurance Act is mandatory as to all employees engaged in extra-hazardous occupations (RCW 51.12.100 and RCW 51.12.070) and elective as to other occupations (RCW 51.12.110). The remedy of the injured workman subject to the act is exclusive (RCW 51.04.010). In a class (4) case, if the injured maritime employee avails himself of the Industrial Insurance Act remedy instead of an alternative Longshoremen's Act or Jones Act remedy, he is bound by his election as to coverage both by the statute making the remedy exclusive and by the doctrine of election described in Davis v. Department of Labor, Supra. 7

Plaintiff contends that the instant case falls within class (1). Defendants contend that the instant case falls within class (3) or (4). If plaintiff is correct, and in light of the stipulation, plaintiff is not barred from relief under the Jones Act, for negligence or on account of the maritime doctrine of unseaworthiness; whereas, if the defendants are correct, plaintiff is barred. The cases are divided on the question whether the 'local concern' and 'twilight zone' doctrine are exceptions to the application of the Jones Act. See note 6.

The 'local concern' doctrine suggested in Southern Pacific Co. v. Jensen, Supra, is so generally stated 8 as to require a definition of 'local concern' on a case-by-case basis. The same is true in applying the 'twilight zone' doctrine because that doctrine necessarily embraces the 'local concern' doctrine without requiring a determination whether the federal or state remedy applies. Michigan Mutual Liability Co. v. Arrien, 233 F.Supp. 496 (S.D.N.Y.1964). The number of 'local concern' cases is too long to set out in detail. Many are listed in note 5, Supra. In 3 A. Larson, Workmen's Compensation § 89.22, p. 411 (1968) illustrative 'local concern' cases are summarized as follows:

removal of a submerged obstruction by a diver; building a pier from a floating raft; checking lumber on a barge; punishing a fishing boat into the water; making up logging booms in navigable water; working as a sweeper on a garbage scow; and servicing a refrigerator in a ship's galley by a local refrigerator company.

In the instant case the marine is a place to moor boats and the evidence so indicates. See City of Des Moines v. Hemenway, 73 Wash.2d 130, 437 P.2d 171 (1968). A marina is not a vessel. Town of Scituate v. Maxwell,339 Mass. 436, 159 N.E.2d 344 (1959). Its moorage function is similar to that of a dock or pier which is considered an extension of the land. See 1 E. Benedict, American Admiralty, § 128a (6th ed. 1940); Cf., Rodrigue v. Aetna Casualty and Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969); Cf., West v. Martin, 51 Wash. 85, 97 P. 1102 (1908). Plaintiff's injuries here were sustained in the course of plaintiff's employment for the construction of a marina intended to be used for the moorage of boats in a navigable city lake and for office purposes. It is true that plaintiff was aboard a raft being used to move timber from the dock and for a short distance to the marina so that the timber could be incorporated in the marina structure. The...

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    ...at 229, 87 L.Ed. at 251; see also Wells, 277 Ill. App.3d at 383, 214 Ill.Dec. 38, 660 N.E.2d 229; Garrisey v. Westshore Marina Associates, 2 Wash.App. 718, 724, 469 P.2d 590, 594 (1970). We have defined the bounds of the "twilight zone" by exclusion, stating that the doctrine "does not appl......
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    ...claim is governed by federal common law." Chan, 39 F.3d at 1403 (footnote omitted). ¶ 18 DOC relies on Garrisey v. Westshore Marina Associates, 2 Wash.App. 718, 469 P.2d 590 (1970). In that case, Garrisey was hired to assist carpenters in constructing a marina, and he sustained injuries whe......
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