Hoddevik v. Arctic Alaska Fisheries Corp.

Decision Date01 February 1999
Docket NumberNo. 41227-2-I,41227-2-I
Citation94 Wn.App. 268,970 P.2d 828
Parties, 79 Fair Empl.Prac.Cas. (BNA) 535 Danelle HODDEVIK, Respondent, v. ARCTIC ALASKA FISHERIES CORPORATION, et al, Appellant.
CourtWashington Court of Appeals

David C. Bratz, Amanda A. Owen, Gail L. Pyle, Seattle, for Appellant.

Mary R. Mann, Jeffrey Cowan, Seattle, for Respondent.

BAKER, J.

Arctic Alaska Fisheries Corp. (Arctic) appeals from a judgment entered on a jury verdict finding it liable to a crew member of a fishing vessel under the Jones Act, 46 U.S.C. app. § 688. Danelle Hoddevik cross-appeals the summary judgment dismissal of her RCW 49.60 claim for discrimination. We hold that the trial court improperly instructed the jury as to the elements of a claim under the Jones Act for negligent infliction of emotional distress. We also hold that Hoddevik's discrimination claim should not have been dismissed as preempted by federal maritime law. We thus reverse the jury's verdict under the Jones Act as well as the trial court's summary judgment dismissal of Hoddevik's RCW 49.60 claim.

I

Hoddevik worked as a fish cutter on Arctic's factory trawler, the Ocean Enterprise (Enterprise). 1 She claims that her male co-workers spoke to her, and about her, in a sexually explicit manner, and that she was propositioned to perform sexual acts. Hoddevik also claims that a non-English speaking Bulgarian immigrant, Doykov, was taught sexually offensive language and told to repeat it to her, and that another Bulgarian, Mankov, spoke better English and facilitated this behavior.

Hoddevik complains of several other improper incidents on the Enterprise. For example, first mate Street pulled off a male crew member's towel when the crew member was walking to his cabin from a shower. Hoddevik saw this incident. Hoddevik alleges that Doykov exposed himself to her in the ship's laundry room. She also alleges that after the laundry room incident, Mankov attempted to rape her in his cabin.

In July 1992, Hoddevik left the Enterprise due to unrelated physical injuries that occurred during her period of employment. She subsequently filed this case, alleging unseaworthiness, maintenance and cure, negligence under the Jones Act, and state law claims, including a claim under RCW 49.60, the Washington Law Against Discrimination (WLAD). Upon Arctic's motion for summary judgment, the trial court dismissed Hoddevik's state law claims as preempted by federal maritime law. Hoddevik appeals dismissal of her RCW 49.60 claim. At trial, the jury did not find Arctic liable for unseaworthiness or maintenance and cure, but did find Arctic liable under the Jones Act. Arctic appeals the Jones Act verdict.

II

Federal judicial power "extend[s] ... to all Cases of admiralty and maritime Jurisdiction." 2 Federal jurisdiction is exclusive over any in rem maritime cause of action. 3 In fact, federal jurisdiction is exclusive in all civil cases of admiralty and maritime jurisdiction, except for those under a federal statute that allows for "saving to suitors in all cases all other remedies to which they are otherwise entitled." 4 Under this statute, a plaintiff may file an in personam maritime claim in state court where Congress has authorized such suits, or where such suits were known at common law and Congress has not conferred exclusive jurisdiction on the federal courts. 5

For cases that can be brought in state court under the "saving to suitors" clause, a state court may " 'adopt such remedies, and ... attach to them such incidents, as it sees fit' so long as it does not attempt to make changes in the 'substantive maritime law.' " 6 State courts must follow substantive maritime law in such cases. 7 Moreover, a state court may not provide a remedy which "works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations." 8

The Jones Act provides in relevant part:

Recovery for injury to or death of seaman (a) Application of railway employee statutes; jurisdiction

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; ... Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located ...[ 9

The relevant railway employee statutes are collectively known as the Federal Employers' Liability Act (FELA), 45 U.S.C. s51 et seq. In personam Jones Act claims may be brought in state or federal courts by way of the "saving to suitors" clause. 10

Jones Act Negligence

The Jones Act provides no cause of action for sexual harassment, but does allow a limited cause of action for damages due to negligent infliction of emotional distress. Under FELA, and thus by extension under the Jones Act, a worker seeking to recover for negligent infliction of emotional distress is limited by the "zone of danger" test first set forth in Consolidated Rail Corp. v. Gottshall. 11

The "zone of danger" test limits recovery for emotional injuries to those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct. 12 Only those within the zone of danger of physical impact can recover. 13 Two post-Gottshall appellate cases which address negligent infliction of emotional distress under FELA confirm this rule and apply Gottshall 's requirement for a physical impact or the immediate risk of physical harm due to a defendant's negligence under the "zone of danger" test. 14 Thus, under the "zone of danger" test set forth in Gottshall, a Jones Act claim such as Hoddevik's must also show a physical impact due to an employer's negligent conduct, or the immediate risk of physical harm caused by that conduct. 15

Arctic contends that the trial court should have granted it a directed verdict or judgment NOV because the "zone of danger" test is not satisfied in the instant case. In reviewing a motion for a directed verdict or judgment NOV, we apply the same standard as the trial court (i.e., de novo) and reverse only if the evidence is insufficient to support the verdict as a matter of law. 16 The trial record must contain evidence sufficient to persuade a rational, fair-minded person of the truth of the premise in question. 17

Hoddevik claims she was assaulted by Mankov, which would be a physical impact for purposes of the zone of danger test. Hoddevik must come forward with sufficient evidence to persuade a rational, fair-minded person of a physical impact due to Mankov's alleged assault. Under the "zone of danger" analysis, she must also prove that Arctic was negligent. Maritime law causes of action for an employer's negligence where a crew member is assaulted require that an assault is foreseeable and that the ship's officers failed to prevent such an assault. 18 Arctic contends that it is entitled to judgment as a matter of law because the jury rejected these possibilities when it found for Arctic on the unseaworthiness claim.

Jury instruction number nineteen states:

A vessel may be unseaworthy if it has in its crew a crewmember who assaults another crewmember. However, not every assault is proof of unseaworthiness. For example, a fistfight between two crewmembers does not necessarily create or indicate an unseaworthy condition. Only assaults committed by a crewmember whose conduct is significantly below the usual and customary standards of the calling of men and women who work at sea will indicate an unseaworthy condition of the vessel....

Jury instruction number twenty states:

In determining whether the Ocean Enterprise was unseaworthy as defined in these instructions, you must not concern yourself with the question of defendant's knowledge of the factors that rendered the vessel unseaworthy. If you find that the vessel was rendered unseaworthy by crew conduct, it does not matter if the defendant did not know about such conduct, or if it did not know that certain crewmembers were of such dispositions that were likely to cause them to engage in such conduct. It also does not matter how many times such conduct occurred, if you determine that the conduct constituted an unseaworthy condition.

The above instructions do not require that the assault was foreseeable or that ship's officers failed to prevent the assault, but an "assault committed by a crewmember whose conduct is significantly below the usual and customary standards of the calling of men and women who work at sea."

We think it very unlikely that a jury could find that an assault might be conduct which meets "the usual and customary standards of the calling of men and women who work at sea" and was foreseeable, but nonetheless preventable by ship's officers. But we need not determine as a matter of law whether the jury verdict on these unseaworthiness instructions disposes of Hoddevik's Jones Act claim because we are persuaded by Arctic's alternative argument that a reversal is required.

Arctic contends in the alternative that it is entitled to a new trial because the jury was improperly instructed on Hoddevik's Jones Act claim. Civil jury instructions are reviewed de novo on appeal. 19 Appealed jury instructions are reviewed to determine whether they permit the parties to argue their theories of the case, whether they are misleading, and whether they accurately inform the jury of the applicable law. 20 An instruction which erroneously states the applicable law constitutes reversible error if a party is prejudiced. 21 An error is prejudicial where the outcome at trial is affected. 22

Here, jury instruction number twelve reads:

Plaintiff alleges that she...

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