Lies v. Farrell Lines, Inc.

• Decision Date: 06 April 1981
• Docket Number: No. 79-4036,79-4036
• Parties: 7 Fed. R. Evid. Serv. 1501 George A. LIES, Plaintiff-Appellant, v. FARRELL LINES, INC. and Does One through Ten, inclusive, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 765

641 F.2d 765

7 Fed. R. Evid. Serv. 1501

George A. LIES, Plaintiff-Appellant, v. FARRELL LINES, INC. and Does One through Ten, inclusive Defendants-Appellees.

No. 79-4036.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 17, 1980.

Decided April 6, 1981.

Michael James Moriarty, San Francisco, Cal., for plaintiff-appellant.

James R. Walsh, San Francisco, Cal., argued, for defendants-appellees; Daniel M. Blumenfeld, San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING and TRASK, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, Senior District Judge:

Appellant, George A. Lies, brought this action against appellee, Farrell Lines, Inc., under the Jones Act, 46 U.S.C. § 688, for injuries he received on July 4, 10 and 11, 1974, while working as a seaman on a vessel owned and operated by Farrell Lines. While the suit was pending, Lies was injured again in October, 1977, while working on another company's vessel and claimed that this accident was caused in part by the injury of July 11, 1974. The district court granted the motion of Farrell Lines for partial summary judgment that Farrell Lines was not liable for injuries or damages proximately caused by Lies' October, 1977, accident. The jury returned a verdict in Lies' favor for $500.00 for the injuries sustained in the July, 1974 accidents, and judgment was entered for that amount. Lies appeals from the judgment and denial of his motion for a new trial.

I. Factual Background

George Lies is an able-bodied seaman. In July, 1974, he was involved in three accidents while working aboard the S. S. Austral Pilgrim, a vessel owned by Farrell Lines. The first accident occurred on July 4, at approximately 12:30 A. M. Lies was ordered over his protest to stow some cargo gear in an unlit area below deck. After stowing the gear, he attempted to return to the deck. In the darkness he stepped through an open hatch, catching himself with his arms. He bruised and cut his shin in the fall. He was treated several hours later and returned to the ship fit for duty. The shin became infected on a long voyage to Africa and did not heal for some time.

In the second accident on July 10, Lies and two fellow workers were struck by a falling preventor guy ¹ which had parted from a cargo boom due to corrosion. The preventor guy fell about 60 feet before striking Lies on the head. The blow knocked Lies to his knees and dazed him, but he was not unconscious. He was taken in an ambulance to a hospital in Bayonne, New Jersey. After a brief medical examination and tests, he again returned to the ship fit for duty. No serious or permanent injuries were discovered, although Lies claims that the blow caused a previously asymptomatic cervical disc condition to become symptomatic, and that he now suffers from throbbing headaches twenty-four hours a day.

The following day, July 11, Lies had another accident. He was unshackling another preventor guy to bring a boom in when the boatswain (bos'n) ordered the winchman to let out the boom. The preventor guy tightened, catching Lies' left hand between the shackle and the bulwark. He suffered a bruised hand, but no bones were broken. Lies testified that his hand has been weak since the accident as a result of nerve damage. Medical examination immediately after the accident disclosed no significant injuries. There is conflicting evidence concerning weakness of grip as a result of tests performed in preparation for trial of this action.

Lies left the Austral Pilgrim in September of 1974. In November, 1974, he reported to the U.S. Public Health Service Hospital, complaining of chronic headaches and blackouts. Neurological and physical tests again disclosed no sign of injury. There is evidence that Lies is an alcoholic, and Farrell Lines' doctor, who examined him, diagnosed alcoholism as the cause of the headaches and blackouts. Public Health Service doctors who treated Lies over the course of the year following his three accidents were of the opinion that muscle tension caused the headaches. A neurologist hired by Lies for this litigation testified that headaches resulted from an aggravation of a pre-existing asymptomatic arthritis of the cervical spine.

Lies filed his complaint in this action in August, 1976, seeking damages for the injuries suffered in the three July, 1974, accidents and alleging that Farrell Lines negligently maintained and operated the vessel, that the vessel was unseaworthy, and that Farrell Lines had not furnished adequate medical attention. There was extensive discovery during the ensuing year, and the case was set for trial on December 12, 1977. A few weeks before trial, however, Lies informed Farrell Lines that he had been injured in an accident aboard the S.S. Texaco New Jersey, in October, 1977. That accident occurred while Lies was "slushing" ² (applying an anticorrosion compound to) some rigging thirty feet above deck. He was seated on a bos'n's chair which was suspended from four ropes secured to a shackle placed over the rigging being treated. Lies had slushed several stays on the vessel without incident. While pulling himself along one stay, however, with his left hand, one of the ropes holding the seat came undone. The chair fell away, and Lies was unable to hold his own weight hanging from the stay with his left hand. He fell to the deck and suffered a disabling back injury.

Lies had been working fairly regularly aboard various vessels from the time he left the Austral Pilgrim until his accident on the Texaco New Jersey. His injuries from that mishap disabled him from working until at least mid-March, 1978. Farrell Lines learned that Lies intended to claim that his injuries suffered aboard the Texaco New Jersey were caused by weakness in his left hand, which in turn resulted from the accident aboard the Austral Pilgrim.

In October, 1978, Farrell Lines filed a motion "for an order of partial summary judgment in defendant's favor or, in the alternative, for an advance determination of legal issues and designation of the order of proof at trial that FARRELL is not liable for injuries or damages proximately caused by plaintiff's October, 1977 and later subsequent accident." In support of its motion Farrell Lines contended that the negligence and unseaworthiness of the Texaco New Jersey, was an intervening and independent superseding proximate cause of the October, 1977, accident and that Farrell Lines, as a matter of law, could not be held liable for injuries resulting from that accident. Following oral argument on November 17, 1978, the court orally granted the motion, and the court minutes contain an entry that the defendant's motion for summary judgment was granted. No formal order was entered.

The case proceeded to trial on November 20, 1978, on the issue of Farrell Lines' liability for the July, 1974, accidents on the Austral Pilgrim. Lies offered into evidence a three-foot replica of the preventor guy which fell from the cargo boom and struck Lies on the head. The court refused to admit the exhibit on the ground that it was not in the same condition as the preventor guy involved in the accident. The original had been discarded at sea, which was apparently the normal procedure when a part becomes worthless. Although the replica was not admitted into evidence, Lies' attorney was permitted to use it in questioning witnesses, as well as during closing argument. The jurors were not allowed to hold it or examine it closely, however. During deliberations the jury asked to see the replica, but the request was refused.

The jury returned a $500 verdict for Lies, who then moved for a new trial. The motion was denied, and this appeal followed.

II. Issues on Appeal

Two issues are presented: (1) whether the court erred in granting partial summary judgment for the defendant; and (2) whether the court abused its discretion in refusing to admit into evidence the proffered replica of the preventor guy.

III. Partial Summary Judgment

In contending that partial summary judgment was unwarranted appellant argues that (1) the district court improperly applied a common law negligence causation analysis to this Jones Act case in determining as a matter of law that the Austral Pilgrim accident of July 11, 1974, was not a proximate cause of the Texaco New Jersey accident in October, 1977; and (2) whether the antecedent negligence of Farrell Lines played any part in causing Lies' injuries in the Texaco New Jersey accident presented a triable issue of fact. On the other hand, appellee argues that (1) Lies had fully recovered from the July 11, 1974, accident prior to the October, 1977, injury and the injuries sustained in the prior accident did not in any way contribute to the October, 1977, accident; and (2) that the unseaworthiness and negligence of the S.S. Texaco New Jersey was an intervening and superseding proximate cause of the October, 1977 accident, and the conduct of Farrell Lines did not play any part in that accident.

Under Rule 56(b) of the Federal Rules of Civil Procedure a party against whom a claim is asserted may move for "a summary judgment in his favor as to all or any part thereof." Under Rule 56(c) the moving party has the burden of showing that there is no genuine issue as to any material fact and that he is entitled to a partial summary judgment as a matter of law. Rule 56(d) provides that if a judgment "is not rendered upon the whole case ... the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy.... It shall thereupon make an order specifying the facts that appear without substantial controversy ... and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed...