Hanks v. Luhr Bros., Inc.

• Decision Date: 09 March 1999
• Docket Number: No. 5-98-0405,5-98-0405
• Citation: 236 Ill.Dec. 696,303 Ill.App.3d 661,707 N.E.2d 1266
• Parties: , 236 Ill.Dec. 696 Robert HANKS, Plaintiff-Appellee, v. LUHR BROTHERS, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1266

707 N.E.2d 1266

303 Ill.App.3d 661, 236 Ill.Dec. 696

Robert HANKS, Plaintiff-Appellee, v. LUHR BROTHERS, INC., Defendant-Appellant.

No. 5-98-0405.

Appellate Court of Illinois Fifth District.

March 9, 1999.

James W. Herron, Jeana D. McFerron, Lewis, Rice & Fingersh, L.C., St. Louis, MO, for Appellant.

Roy C. Dripps, The Lakin Law Firm, P.C., Wood River, for Appellee.

Justice KUEHN delivered the opinion of the court:

Any seaman hurt on the job can sue for damages and, at his election, have a jury decide the outcome. 46 U.S.C.App. § 688 (1994). When Congress passed the Jones Act, it made trial by jury a matter for the seaman to decide. Congress wanted the seaman's employer to abide by that decision. Allen v. Norman Brothers, Inc., 286 Ill.App.3d 1091, 222 Ill.Dec. 705, 678 N.E.2d 317 (1997).

Here, a Jones Act plaintiff wanted the judge rather than a jury to decide his case. Luhr Brothers, Inc. (Luhr), wanted a jury to decide it. The judge struck Luhr's jury demand and heard the case. He found for plaintiff and awarded $901,091.32.

Luhr appeals from the trial court's December 16, 1997, order denying its motion for trial by jury and from the March 9, 1998, judgment for plaintiff. We affirm.

Plaintiff, Robert Hanks, worked for Luhr as a deckhand on Luhr's river towboat, the MV Michael A. Early in the morning of January 31, 1996, the towboat's steering ram broke while the boat was operating on the Vermilion River in Louisiana in heavy winds. Plaintiff and one other deckhand, with the assistance of the towboat's captain, changed the ram. The rams operate on hydraulic fluid under pressure. The rams are located on the towboat's stern under removal grates that rest upon a metal framework. The grates are situated 10 to 14 inches above the towboat's deck. A channel running the full length of the deck exists for the purpose of keeping fluids from spilling out onto the deck from the grate area.

When the ram was changed, the hydraulic lines feeding the ram's cylinder had to be disconnected and bled to remove pressure. Some hydraulic fluid escaped during this repair, which was normal. Plaintiff acknowledged that trying to keep the hydraulic fluid off of the deck was within his job duties. The captain characterized the fluid loss in this case as minimal. Plaintiff testified that he contained the spillage at the ram but that some fluid may have spilled onto the grates or onto rigging resting on the grates.

After the ram was changed, the captain ordered plaintiff to clean the grates and deck. Plaintiff sprinkled soap powder into the grate area and began to hose down the area. In an area 10 to 14 inches from the grates, plaintiff's left foot slipped out from under him, and he fell, landing on his buttocks and striking his head on the deck. In attempting to get up, he slipped and fell again.

Plaintiff does not know whether or not he slipped on hydraulic fluid. He saw no fluid on the deck, and after he fell, he found none on his shoes. Plaintiff testified that the deck was wet from wind-driven waves.

The area of the deck where he fell had been painted just two weeks prior to the accident. No nonskid additive was available on the towboat when the painting was done, and so the deck was painted without the additive. In the past, the nonskid additive was always added to the paint. Plaintiff testified that in the two weeks before this accident, he and other crew members complained to the captain and the pilot that the freshly painted area of the deck in question was slick. Despite their complaints, no corrective action was taken.

Plaintiff sustained a low-back injury in the form of a ruptured disc in this accident. In July 1996, plaintiff underwent a lumbar discectomy. His orthopedic surgeon testified that by November 1996 plaintiff had reached maximum medical improvement. Plaintiff was given a return to duty without restriction in January 1997. The surgeon testified that plaintiff could not perform heavy industrial work but could return to a medium level of physical work.

Plaintiff had a history of two low-back injuries while in the United States Marine Corps, the second of which was in December 1991. In April 1993, plaintiff was examined by a Veterans Administration physician pursuant to some application for compensation or pension. Plaintiff told this physician that he had experienced constant low-back pain for the preceding 18 months with numbness in the upper parts of his leg down to his knees. However, upon examination, this physician found no neurological or musculoskeletal deficiencies or abnormalities.

Plaintiff's surgeon opined that the January 1996 accident either exacerbated a preexisting herniation or caused the herniation. After being informed of plaintiff's past medical history, plaintiff's surgeon testified that he believed that the disc was most likely bulging or ruptured prior to January 1996, although plaintiff had no symptoms suggestive of sciatica. In concluding, the surgeon testified that whatever the state of plaintiff's back prior to the January 1996 accident, something happened in the January 1996 accident that resulted in plaintiff's increased symptoms.

Plaintiff had been employed as a deckhand for 22 months before the fall. His annual income was $25,914.

Plaintiff filed suit against Luhr in state court, alleging claims under the Jones Act, under general maritime law, and for maintenance and cure. He sought damages for the injuries he sustained as a result of his January 1996 fall. Luhr demanded a trial by jury. Luhr also filed an answer asserting contributory fault with respect to the Jones Act and maritime law claims.

On plaintiff's motion, the trial court struck Luhr's jury demand on June 3, 1997. Later, Luhr filed a motion seeking a trial by jury, with a supporting memorandum of law. The trial court denied Luhr's motion on December 16, 1997. The case proceeded to a bench trial on January 26 and 27, 1998. A judgment was entered in plaintiff's favor on March 9, 1998, in the amount of $901,091.32, plus court costs. Luhr filed a posttrial motion, which the trial court denied on June 1, 1998.

I. JURY DEMAND

Luhr initially appeals from the trial court's order striking defendant's jury demand. As the issue involves a review of federal statutory and constitutional law, we review de novo the trial court's order striking Luhr's jury demand.

Illinois Constitution--Jones Act

State and federal courts have concurrent jurisdiction over a Jones Act (46 U.S.C.App. § 688 (1994)) claim. Allen v. Norman Brothers, Inc., 286 Ill.App.3d 1091, 1094, 222 Ill.Dec. 705, 678 N.E.2d 317, 319 (1997), citing 45 U.S.C. § 56 (1988). Under the Jones Act, only the plaintiff can elect to have the case heard by a jury. Allen, 286 Ill.App.3d at 1094-95, 222 Ill.Dec. 705, 678 N.E.2d at 319-20, citing Rachal v. Ingram Corp., 795 F.2d 1210, 1213 (5th Cir.1986); Craig v. Atlantic Richfield Co., 19 F.3d 472, 476 (9th Cir.1994).

The Illinois Constitution guarantees the right to a jury trial if the claim existed at common law. Allen, 286 Ill.App.3d at 1095, 222 Ill.Dec. 705, 678 N.E.2d at 320, citing Martin v. Heinold Commodities, Inc., 163 Ill.2d 33, 72, 205 Ill.Dec. 443, 643 N.E.2d 734, 753 (1994). The Jones Act did not exist at common law. Allen, 286 Ill.App.3d at 1094, 222 Ill.Dec. 705, 678 N.E.2d at 319. Therefore, as we previously and unambiguously stated, Jones Act defendants have no right to a jury trial in Illinois state courts. Allen, 286 Ill.App.3d at 1096, 222 Ill.Dec. 705, 678 N.E.2d at 320-21.

Illinois Constitution--General Maritime Claims

State courts have jurisdiction over general maritime claims because of the savings-to-suitors clause of section 1333 of the Judiciary Act (28 U.S.C. § 1333 (1994)). That section provides that the United States district courts shall have original jurisdiction, exclusive of the courts of the states, of all civil cases of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

Plaintiff's unseaworthiness and maintenance-and-cure claims are considered admiralty claims to which no jury trial right attaches. Allen, 286 Ill.App.3d at 1096, 222 Ill.Dec. 705, 678 N.E.2d at 321, citing Fitzgerald v. United States Lines Co., 374 U.S. 16, 17, 83 S.Ct. 1646, 1648, 10 L.Ed.2d 720, 722 (1963). Luhr cites numerous old cases that predate the enactment of the Jones Act in which the injured seamen received jury trials. None of the cited cases mention who demanded the jury trial. Furthermore, the states involved in the cited cases may have constitutional provisions that allow for jury trials in all cases. The vast majority of the cases cited involve common law negligence and not traditional admiralty claims. One of the cases was in federal court on a diversity basis, and because of the diversity, the seventh amendment became applicable, providing defendant a jury trial right. U.S. Const. amend. VII. In short, nothing in these cases stands for the proposition that the defendant has a jury trial right in a traditional admiralty case heard in Illinois state court.

Jones Act--Contributory Negligence Claim

Luhr contends that section 53 of the Federal Employers' Liability Act (FELA) ( 45 U.S.C. § 53 (1994)), as incorporated into the Jones Act (46 U.S.C.App. § 688 (1994)), provides a defendant with a right to a jury trial with respect to the defendant's contributory negligence claim.

This issue is controlled by a recent opinion handed down by this court. Applying our recent case law, we find that the reference to a jury within section 53 of the FELA confers no right upon a defendant to demand a jury in a Jones Act case. Gibbs v. Lewis & Clark Marine, Inc., 298 Ill.App.3d 743, 750, 233 Ill.Dec. 126, 700 N.E.2d 227, 232 (1998). As previously stated, any such construction "would contravene the plaintiff's expressly articulated right to elect a jury trial or nonjury trial in such cases." Gibbs, 298 Ill.App.3d at 750,...