Szopko v. Kinsman Marine Transit Co., Docket No. 74646

• Decision Date: 03 February 1987
• Docket Number: Docket No. 74646
• Citation: 397 N.W.2d 171,426 Mich. 653
• Parties: , 1987 A.M.C. 2081 Frank J. SZOPKO, Plaintiff-Appellee, v. KINSMAN MARINE TRANSIT COMPANY, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 171

397 N.W.2d 171

426 Mich. 653, 1987 A.M.C. 2081

Frank J. SZOPKO, Plaintiff-Appellee, v. KINSMAN MARINE TRANSIT COMPANY, Defendant-Appellant.

Docket No. 74646.

Supreme Court of Michigan.

Argued March 4, 1986.

Decided Dec. 17, 1986.

Rehearing Denied Feb. 3, 1987.

The Jaques Admiralty Law Firm, P.C. by Robert E. Swickle, Detroit, for plaintiff-appellee.

John A. Hamilton, Foster, Meadows & Ballard, Detroit, Steven B. Belgrade, David W. Andich, Andich and Belgrade, Chicago, for defendant-appellant, Kinsman Marine Transit Co.

CAVANAGH, Justice.

This case plunges the Court into the depths of uncharted waters--federal admiralty law. ¹

FACTS

Plaintiff Szopko was a crew member of the S.S. Buckeye Monitor, a Great Lakes freighter owned by defendant Kinsman Marine. The vessel was docked at Conneaut, Ohio, to unload a cargo of taconite pellets. Pittsburgh and Conneaut Dock Company owned and operated the dock and was responsible for the unloading operation. The dock company is not a party in this case.

The Buckeye Monitor's cargo was unloaded by a conveyor belt system. The dock company constructed a stairway and grated ramp to allow seamen and longshoremen to walk over the conveyor belt. This "crossover ramp" was located on the dock company's property near the water's edge, and one flight of stairs was approximately twenty-five feet from the ship's ladder.

On September 2, 1973, plaintiff worked his customary eight-hour shift (8:00 a.m. to 4:00 p.m.). Plaintiff went into the town to have a few drinks around 6:30 p.m. Before leaving, his supervisor asked him to purchase a carton of cigarettes in town.

Plaintiff started to walk back to the ship at approximately 11:30 p.m. He met two fellow crewmembers (Adamzak and Johnson), who testified that defendant's gait was slow and staggering. Plaintiff told these men to leave him alone, indicating that he could make it to the ship without their assistance. Plaintiff testified at his second trial ² that he slipped on the dock near the stairway to the crossover ramp due to the darkness and spillage of taconite pellets. Adamzak testified that the area was "all gravel" and "kind of dim," but he had no difficulty walking in the area. Johnson stated that he encountered no difficulty walking in the area and did not know of any debris in the area at the time of the accident.

The examining physician testified that the plaintiff received a mild concussion and a very large cut on the head which required several stitches to close. Plaintiff was held for five days for observation and released. Plaintiff testified that he continued to have headaches and dizziness after the accident and that he could no longer work on ships.

Plaintiff's second trial resulted in a verdict of $380,000, and a finding of thirty-five percent comparative negligence, for a judgment of $247,000. The Court of Appeals affirmed in an unpublished decision. We granted leave to appeal. 422 Mich. 936 (1985).

BACKGROUND

In order to analyze the questions presented, it is helpful to understand some basic principles of admiralty law. In general A seaman who becomes ill or injured while "in the service of the ship" ³ is entitled to "maintenance and cure" ("cure" from the Latin noun cura, care, healing). Recovery is in the form of a per diem living allowance and payment of medical costs. Recovery is not based on fault and is analogous to workers' compensation. Plaintiff did not make a claim for maintenance and cure in this case.

a seaman has three basic theories of recovery: unseaworthiness of a vessel, maintenance and cure, and an action for damages under the Jones Act, 46 U.S.C. Sec. 688.

A seaman may also sue on the basis of the vessel's "unseaworthiness," ⁴ since a shipowner has an absolute, nondelegable duty to furnish a vessel that is reasonably safe for its intended purposes. Plaintiff's claim under this theory was rejected prior to both trials, and the unseaworthiness of the vessel is not at issue here.

We stress that plaintiff's sole basis for recovery in this case is grounded upon the Jones Act. It is important to recognize that the three theories are separate, and each has its own body of interpretative case law.

The Jones Act states that "[a]ny 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...." The parties agree that there are two basic elements in a Jones Act claim. First, the injury must have occurred "in the course of ... employment." Second, the injury must have been caused in some way by the defendant's negligence. In interpreting claims under the Jones Act, several courts have looked at analogous cases under the Federal Employers' Liability Act, 45 U.S.C. Secs. 51-60, since the Jones Act was meant to provide statutory rights and remedies comparable to those granted to railroad workers under the FELA.

ANALYSIS

Defendant argues that the lower courts erred in failing to direct a verdict in its favor for two reasons. First, plaintiff was not "in the course of his employment" for purposes of the Jones Act. Second, even if he was, the defendant was not negligent since it owed no duty to the plaintiff under the facts of this case. We will analyze these arguments separately, keeping in mind the appropriate standard of review for a denial of a motion for a directed verdict. ⁵

I. WAS THE PLAINTIFF "IN THE COURSE OF HIS EMPLOYMENT" AT THE TIME OF THE INJURY?

The plaintiff's argument was accepted by the Court of Appeals which concluded:

"The term 'course of employment' as used in the statute 'is the equivalent of the "service of the ship" formula used in maintenance and cure cases.' Braen v. Pfeifer Oil Transportation Co., 361 US 129; 80 S Ct 247; 4 L Ed 2d 191 (1959). The United States Supreme Court has long held that a seaman on shore leave is in the service of the ship. Warren v. United States, 340 US 523; 71 S Ct 432; 95 L Ed 503, 509 (1951). A seaman on shore leave is, therefore, in the course of his employment. Central Gulf Steamship Corp v Sambula, 405 F2d 291, 298-299 (CA 5, 1968); Marceau v. Great Lakes Transit Corp, 146 F2d 416, 418-419 (CA 2, 1945)."

Defendant concedes that a seaman on shore leave is "in the service of the ship" for purposes of recovering maintenance and cure. However, defendant argues that the Court of Appeals erred in concluding that a seaman on shore leave is "in the course of his employment" for the purposes of the Jones Act. Our review of the cases cited by both parties convinces us that the Court of Appeals clearly erred, and that defendant was entitled to a directed verdict.

In Braen, supra, 361 U.S. pp. 132-133, 80 S.Ct. pp. 249-250, petitioner was ordered to replace worn decking on a repair raft. He was injured when a catwalk gave way, and he brought suit under the Jones Act. In reviewing whether the injury occurred in the course of petitioner's employment, the United States Supreme Court stated:

"The fact that the injury did not occur on the vessel is not controlling, as Senko v. LaCrosse Dredging Corp., [352 US 370, 373; 77 S Ct 415 [, 417]; 1 L Ed 2d 404 (1957) ], holds. A 'seaman' may often be sent off ship to perform duties of his employment. O'Donnell v. Great Lakes [Dredge & Dock] Co, [318 US 36; 63 S Ct 488; 87 L Ed 596 (1943) ]. In Marceau v Great Lakes Transit Corp, (CA 2 NY [1945] 146 F2d 416, a ship's cook was allowed to recover under the Jones Act when, pursuant to duty, he was returning to the ship and was injured on the dock while approaching a ladder used as ingress to the vessel.

"We held that a seaman who was injured on the dock while departing from the ship on shore leave was in the service of the vessel and was entitled to recover for maintenance and cure in Aguilar v Standard Oil Co, 318 US 724 [63 S Ct 930; 87 L Ed 1107 (1943) ]. It was there recognized that a seaman is as much in the service of his ship when boarding it on first reporting for duty, quitting it on being discharged, or going to and from the ship while on shore leave, as he is while on board at high sea. Id., at 736, 737 . We also held that a seaman injured in a dance hall while on shore leave was in the service of his ship in Warren v. United States, 340 US 523, 529 . These two cases were not brought under the Jones Act but involved maintenance and cure. Yet they make clear that the scope of a seaman's employment or the activities which are related to the furtherance of the vessel are not measured by the standards applied to land-based employment relationships. They also supply relevant guides to the meaning of the term 'course of employment' under the Act since it is the equivalent of the 'service of the ship' formula used in maintenance and cure cases. See Gilmore and Black, The Law of Admiralty, p 284. And see O'Donnell v. Great Lakes [Dredge & Dock] Co, supra [318 U.S.] at 43; Marceau v. Great Lakes Transit Corp, supra.

"Petitioner in the present case was ordered by a superior to perform some carpentry work on a raft which lay between the lighter and the dock. Petitioner was injured, as we have said, while on the catwalk attempting to move the raft into position for boarding. The raft was used to facilitate chipping, painting and welding on respondent's vessels. Cf. Grant Smith-Porter Ship Co v Rohde, 257 US 469 [42 S Ct 157; 66 L Ed 321 (1922) ]. New decking was to be installed on the raft. The fact that the raft was not presently being used to repair respondents' barge is in our view immaterial. Petitioner was acting 'in the course of his employment' at the time of the injury, for at that moment he was doing the work of his employer pursuant to his employer's orders. No more is required by the Jones Act, as the O'Donnell case indicates, petitioner being a seaman who was injured as a consequence of the negligence of his employer." (Emphasis supplied.)

We agree with the defendant that the Court of Appeals placed improper emphasis on...