Ribitzki v. Canmar Reading & Bates, Ltd. Partnership

• Decision Date: 10 December 1996
• Docket Number: No. 96-35039,96-35039
• Parties: , 1997 A.M.C. 2376, 97 Cal. Daily Op. Serv. 2705, 97 Cal. Daily Op. Serv. 4241, 97 Daily Journal D.A.R. 4812, 97 Daily Journal D.A.R. 7129 Anton RIBITZKI, Plaintiff-Appellant, v. CANMAR READING & BATES, LTD. PARTNERSHIP, a Texas limited Partnership; Canmar (U.S.) Inc., a Texas Corp.; Piquniq Service Company, Inc., an Alaska Corp.; Piquniq Management Corporation, an Alaskan Corp. in personam; and Canmar SSDC, her gear and appurtenances, in rem, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 658

111 F.3d 658

1997 A.M.C. 1841, 1997 A.M.C. 2376,

97 Cal. Daily Op. Serv. 2705,

97 Cal. Daily Op. Serv. 4241,

97 Daily Journal D.A.R. 4812,

97 Daily Journal D.A.R. 7129

Anton RIBITZKI, Plaintiff-Appellant, v. CANMAR READING & BATES, LTD. PARTNERSHIP, a Texas limited

Partnership; Canmar (U.S.) Inc., a Texas Corp.; Piquniq

Service Company, Inc., an Alaska Corp.; Piquniq Management

Corporation, an Alaskan Corp. in personam; and Canmar SSDC,

her gear and appurtenances, in rem, Defendants-Appellees.

No. 96-35039.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 10, 1996. ^*

Decided April 14, 1997.

As Amended on Denial of Rehearing and Rehearing En Banc

June 5, 1997.

Cathleen Nelson McLaughlin, Jim M. Boardman, Brena & McLaughlin, Anchorage, Alaska, for plaintiff-appellant.

Patricia L. Zobel, Harland H. McElhany, DeLisio, Moran, Geraghty & Zobel, Anchorage, Alaska, for defendants-appellees.

Appeal from the United States District Court for the District of Alaska, James K. Singleton, District Judge, Presiding. D.C. No. CV-93-00470-JSK.

Before: WRIGHT, THOMPSON and KLEINFELD, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Anton Ribitzki, a seaman employed by Piquniq Service Company, Inc., alleged he was injured when he slipped or stepped into an Ribitzki appeals the district court's summary judgment.

open hatch while cleaning an area of the CANMAR SSDC ("the Canmar"), a drill ship. Ribitzki brought suit in the district court for damages arising from his personal injuries. The district court granted partial summary judgment, rejecting Ribitzki's claims for negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness under admiralty law. The district court subsequently dismissed Ribitzki's remaining claims with prejudice, and entered final judgment in favor of the defendants-appellees.

We have jurisdiction under 28 U.S.C. § 1291, and we reverse. ¹

I FACTS

Piquniq dispatched Ribitzki, a 48-year-old seaman, to work in the pit room of the Canmar, an oil drilling ship. The pit room contains five shale shakers used to clean drilling mud lubricant for reuse in the drilling process. The shale shakers remove shale fragments from the mud lubricant. The shakers then dump the fragments into a shale pit, which is also located in the pit room.

A hatch, two-feet by two-feet, is located in the deck of the pit room over the shale pit to allow access to the pit for cleaning. The hatch cover is flush with the deck and is part of the deck work area when the hatch is not open for cleaning purposes. There is no berm or other device where the hatch joins the deck to alert someone that the hatch is there. The hatch cover is made of diamond plate and has a recessed handle, which is also flush with the deck of the pit room. Unless Ribitzki or another seaman was cleaning the shale pit, the hatch was kept closed.

The open area of the pit room is a rectangle four-feet by sixteen-feet. Within this space is a sink, the hatch, and a guarded opening for a stairway. When open, the hatch door is at an 85 degree angle with the deck, and is chained to prevent it from opening further.

Ribitzki's job was to clean the shale pit when the Canmar finished making a drill hole. Ribitzki cleaned the pit by spraying away lubricant mud and shale pieces with a pressurized hose. The hose is connected to a water outlet approximately sixteen feet away from the hatch. To clean the pit, Ribitzki would open the hatch, descend by ladder into the pit, and hose or shovel the shale pieces out.

After working for three months as a pit watcher on the Canmar, Ribitzki was injured while cleaning the shale pit. He was walking backward toward the hatch while uncoiling the hose to clean the pit. In uncoiling the hose, he twisted around to take a kink out of it. When he did this, he turned his back to the open hatch and his foot either slipped or he stepped into the opening. Ribitzki's rib cage struck the hatch opening, one knee hit the hatch, and the other knee hit the deck. There were no witnesses to the accident.

Over the next several days, Ribitzki's knees were sore and stiff. Later that month, two operations were performed on his right knee and one on his left knee to repair torn ligaments and cartilage.

Michael O'Connor, the Piquniq employee responsible for assigning Ribitzki to the Canmar, stated in his sworn affidavit he was "never informed of any safety concerns regarding the hatch cover or flooring of the shale pit on the Canmar." According to O'Connor, "[n]o [Piquniq] employee besides Mr. Ribitzki had an accident in the shale pit area of the Canmar."

II DISCUSSION

We review de novo the district court's grant of summary judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). Summary judgment is not warranted if a material issue of fact exists for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th

Cir.1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). The underlying facts are viewed in the light most favorable to the party opposing the motion, here Ribitzki. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "Summary judgment will not lie if ... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

A. Jones Act Negligence

To recover on his Jones Act claim, Ribitzki must establish that his employer, Piquniq, or one of its agents, was negligent and that this negligence was a cause, however slight, of his injuries. ² Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir.1993). The "quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence, ... and even the slightest negligence is sufficient to sustain a finding of liability." Id. ³

The elements of a Jones Act negligence claim are: duty, breach, notice and causation. See id.; see also Matson Navigation Co. v. Hansen, 132 F.2d 487, 488 (9th Cir.1942); 1B Aileen Jenner et al., Benedict on Admiralty, § 21 (7th ed.1994). We consider these elements in order.

1. Duty

The employer of a seaman owes the seaman a duty under the Jones Act to provide the seaman with a safe place to work. Glynn v. Roy Al Boat Mgt. Corp., 57 F.3d 1495, 1498 (9th Cir.1995); Matson Navigation, 132 F.2d at 488. This duty extends to providing a safe place to work on the ship of a third party over whom the employer has no control, if that is where the seaman's employer sends him to work. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977), overruled on other grounds in both Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir.1982) and Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997). It is undisputed that Ribitzki was a seaman employed by Piquniq, and that Piquniq sent Ribitzki to work aboard the Canmar.

2. Breach

In granting summary judgment in favor of Piquniq, the district court concluded Piquniq had not breached its duty to Ribitzki. This determination depended on the district court's analysis of the facts Ribitzki asserted. We examine these facts de novo.

Ribitzki stated in his deposition that the pit room was an unsafe place because it provided insufficient space for him to perform his assigned task. His deposition testimony, if believed, supports this. Due to the configuration of the pit room, there was only 24 inches of deck space between the open hatch and the pit room bulkhead. It was in this constricted space immediately adjacent to the open hatch where Ribitzki performed his maneuver to unkink the hose. To get the kinks out of the hose, he turned around with his back to the open hatch and the hose above his head. When he did so, he stepped or slipped and fell into the opening. A jury could find from this evidence that the pit room in the area where Ribitzki fell was an unsafe place for him to work. Although Ribitzki could have laid the hose down and walked to where the kink was to unkink it, it was for the jury to decide whether he was negligent in choosing the method he did to unkink the hose; and, even if Ribitzki were negligent, this circumstance would not cancel the employer's negligence if it played any part at all in Ribitzki's injuries. Lies v. Farrell Lines, Inc., 641 F.2d 765, 771 (9th Cir.1981).

Ribitzki also testified that, at the time of the accident, the deck in the pit room was slippery. In his deposition, he stated he might have fallen into the hatch because there was "a little mud" near the hatch area. Although he could not say for sure whether he slipped or stepped into the hatch, he testified he was cleaning the pit because the Canmar had just finished drilling a hole, and lubricant mud on the deck made it slippery. Piquniq contends the Canmar had finished drilling the hole weeks before Ribitzki's accident and the deck area was not slippery on the day Ribitzki stepped or slipped and fell into the hatch opening. This dispute presents an issue of fact for the jury.

Given these circumstances, a reasonable jury could find that, even though Ribitzki was aware the deck of his work area was slippery with mud, and that the work area was cramped, Piquniq was negligent because it was unreasonable to require an employee to perform the task Ribitzki was assigned in the cramped, slippery quarters of the pit room area adjacent to the open hatch. See Dempsey v. Mac Towing, Inc., 876 F.2d 1538, 1543-44 (11th Cir.1989) (observing that "[t]he determination of whether a deck is unreasonably slippery is a question of fact for the jury to determine, in light of all the evidence presented."); Davila v. S/S Vercharmian, 247 F.Supp. 617, 619 (E.D.Va. Nov.19, 1965).

We conclude a jury could find that Ribitzki's employer, Piquniq, breached its duty to provide him a safe place to work. The next element of Ribitzki's Jones Act claim is notice.

3. Notice

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