Thomas v. Newton Intern. Enterprises

• Decision Date: 14 December 1994
• Docket Number: No. 93-55317,93-55317
• Citation: 42 F.3d 1266
• Parties: Denise THOMAS & Willie Lavon Thomas, Plaintiffs-Appellants, v. NEWTON INTERNATIONAL ENTERPRISES; Southern Shipping Management (Chile) Ltd., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1266

42 F.3d 1266

1995 A.M.C. 388

Denise THOMAS & Willie Lavon Thomas, Plaintiffs-Appellants, v. NEWTON INTERNATIONAL ENTERPRISES; Southern Shipping Management (Chile) Ltd., Defendants-Appellees.

No. 93-55317.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 3, 1994.

Decided Dec. 14, 1994.

Thomas J. Pierry, III, Pierry & Moorhead, Wilmington, CA, for plaintiffs-appellants.

Patrick G. Rogan, Dimitrios P. Biller, Pillsbury Madison & Sutro, Los Angeles, CA, for defendants-appellees.

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

Before: WALLACE, REINHARDT, and TANNER, ^* Circuit Judges.

REINHARDT, Circuit Judge:

This case involves a negligence action by an injured longshore worker against the owner of the vessel. The district court granted summary judgment for the vessel. We reverse.

BACKGROUND

On July 6, 1991, Stevedoring Services of America assigned longshore worker Denise Thomas to assist with the discharging and loading of cargo from the vessel "Imperial". At approximately 2:30 p.m., Thomas and her work partner, Joe Graham, boarded the Imperial and proceeded to Hatch # 6 where cargo operations were in progress. When Thomas and Graham arrived at the access ladder leading from the weather deck of Hatch # 6 to the tween deck, Thomas looked briefly down the ladderwell, allowed Graham to climb down first, and then followed him down the access ladder. When Thomas reached the tween deck, she released the ladder, took one step and fell through a second hatch opening leading to the access ladder between the tween deck and lower hold. On the way down, Thomas' leg caught in the rung of the second access ladder and broke her fall. In the process of falling, Thomas struck her head, back, shoulder and foot against the second ladder. The hatch opening which Thomas fell through was completely uncovered and unguarded.

Thomas filed a negligence action against the vessel owner, Newton International, in California state court. Her husband also sued for loss of consortium. Subsequently, Newton removed the action to federal court, and soon thereafter filed a motion for summary judgment. During the summary judgment hearing, the district court excluded the declaration of Thomas' expert on the grounds that the expert relied in part on the Pacific Marine Safety Code and that an insufficient foundation had been established for his qualifications. The district court also denied Thomas' request for an in limine hearing to elaborate on the expert's qualifications. Finally, the district court determined that no genuine issue of material fact existed, and that Newton had not violated any of the duties it owed to Thomas. Thus, the court granted Newton's summary judgment motion. We review de novo.

ANALYSIS

Generally, the Longshore and Harbor Workers' Compensation Act establishes a comprehensive workers' compensation program that provides benefits to longshore workers and their families for work-related injuries. 33 U.S.C. Secs. 901-950. Under this act, the longshore worker's employer, the stevedore, is shielded from liability beyond payment of statutory benefits. Under certain limited circumstances, the longshore worker may seek damages in a statutory negligence action from the owner of the vessel on which he was injured under 33 U.S.C. Sec. 905(b). See Howlett v. Birkdale Shipping, --- U.S. ----, ----, 114 S.Ct. 2057, 2062, 129 L.Ed.2d 78 (1994).

The Supreme Court outlined the limited circumstances in which a vessel may be liable under Sec. 905(b) in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). The Court explained that vessels have five duties under Sec. 905(b). These are the turnover duty of safe condition, the turnover duty to warn, the active involvement duty, the active control duty, and the duty to intervene. See Bjaranson v. Botelho, 873 F.2d 1204, 1207 (9th Cir.1989). The district court rejected liability under each of these theories as a matter of law. Because we conclude that the district court erred with respect to the question of the turnover duty of safe condition, we reverse on that ground. Therefore, we need not address the other theories of liability.

I. An Unreasonably Dangerous Condition

One of the primary duties of a vessel owner is to turn over the vessel to the stevedore in reasonably safe condition. See Scindia, 451 U.S. at 167, 101 S.Ct. at 1622. Although a shipowner is not required to turn over a vessel free of all hazards, the vessel must be free of hazards that would prevent an expert and experienced stevedore from carrying on his operation in a reasonably safe manner. Bjaranson, 873 F.2d at 1208. ¹ In other words, any "obvious" hazard must not "present [ ] an unreasonably dangerous work environment to experienced longshoremen exercising reasonable care." Martinez v. Korea Shipping, 903 F.2d 606, 610 (9th Cir.1990). Generally, this type of issue is inappropriate for resolution at the summary judgment stage. "Summary judgment is rarely granted in negligence cases. Whether the defendant acted reasonably is ordinarily a question for the trier of fact." Martinez, 903 F.2d at 609 (emphasis added).

In Martinez, the court reversed a summary judgment order in favor of the vessel owner reasoning that whether a hazard was unreasonably dangerous to longshore workers was a question of fact for the jury. Id. at 610-11. In this case, Thomas presented evidence, including the declaration of her expert witness George Kuvakas, regarding the hazardousness of the unguarded hatch opening. The district court excluded Kuvakas' declaration. In doing so, it abused its discretion, and ultimately erred in granting the motion for summary judgment.

A

Thomas' expert, George Kuvakas, Jr., was a longshore worker with 29 years experience. In his declaration, Kuvakas stated that throughout his longshore industry career, he had worked in every job category within the industry and for every stevedoring company. After reviewing all subpoenaed documents from Newton and photographs of the accident site, Kuvakas declared that in his experience "the presence of an unguarded, uncovered deck opening or manhole positioned within two feet of the bottom of an access ladder is an extremely unusual and hazardous condition." He also stated that "it is customary for a vessel to have in place over all deck openings or manholes either a properly functioning manhole cover or a barricade of some sort such as a large piece of plywood or a chain-type railing." In addition, he declared that "[t]his type of condition would not be something that even an experienced longshore worker would be looking for or anticipate...." The district court refused to consider the Kuvakas declaration on the grounds that an inadequate foundation was provided for his qualifications as an expert and that his declaration contradicted case law. ²

We conclude that this exclusion was an abuse of the district court's discretion. It is clear from the face of the declaration that Kuvakas was qualified to give expert testimony. The issue of qualifications is governed by Federal Rule of Evidence 702 which contemplates a broad conception of expert qualifications. As the terms of the rule state, an expert may be qualified either by "knowledge, skill, experience, training, or education." Moreover, the advisory committee notes emphasize that Rule 702 is broadly phrased and intended to embrace more than a narrow definition of qualified expert. Kuvakas' declaration stated that he had 29 years of longshore experience, and that he had worked in a variety of job categories for numerous stevedoring companies. Clearly, this lays at least the minimal foundation of knowledge, skill, and experience required in order to give "expert" testimony as to the working conditions of experienced longshore personnel. Moreover, if the district court desired more detail about Kuvakas' expert qualifications, it should have given Thomas an opportunity to provide it. Cf. Bulthuis v. Rexall Corp., 789 F.2d 1315, 1317 (9th Cir.1985) (stating in Rule 705 context that if the court desires more information, it should not grant summary judgment against plaintiff without affording plaintiff an opportunity to supply the information). ³

B

Expert opinion evidence is itself sufficient to create a genuine issue of disputed fact sufficient to defeat a summary judgment motion. See Bulthuis, 789 F.2d at 1317-18. See also Maffei v. Northern Ins. Co., 12 F.3d 892, 897 (9th Cir.1993). When the Kuvakas declaration is included among the evidence offered by Thomas, and that evidence is viewed in the light most favorable to her, it raises a genuine issue of material fact as to the ultimate issue of whether the unguarded hatch opening presented an unreasonably dangerous condition. ⁴

Because the declaration raises a material issue of fact as to the ultimate issue of "unreasonable dangerousness," the motion for summary judgment must be denied. Nonetheless, Newton argues that, independent of the "unreasonably dangerous" issue, it could not have breached its turnover duty of safe condition because the unguarded ladderwell was "easily avoidable," citing Ludwig v. Pan Ocean Shipping, 941 F.2d 849, 851 (9th Cir.1991). Newton argues that Thomas could have stepped to the right and avoided the open hatch instead of stepping to the left and falling through it, and therefore it is entitled to summary judgment. However, Newton is incorrect. The question whether a hazard is easily avoidable is simply part of the larger question whether a hazard is unreasonably dangerous. ⁵ It is the failure to eliminate an unreasonably dangerous hazard that constitutes a breach of the vessel's turnover duty of safe condition. In determining whether a particular hazard is unreasonably dangerous, the fact finder must examine the totality of the factual circumstances surrounding the hazard and the accident and consider them as a whole. Although...