Thornton v. Gulf Fleet Marine Corp., Inc.

• Decision Date: 11 February 1985
• Docket Number: No. 83-3737,83-3737
• Citation: 752 F.2d 1074
• Parties: Nellie D. THORNTON, Plaintiff-Appellant, Cross-Appellee, v. GULF FLEET MARINE CORPORATION, INC., et al., Defendants-Appellees, Gulf Fleet Marine Corporation, Defendant-Appellee, Cross-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1074

752 F.2d 1074

Nellie D. THORNTON, Plaintiff-Appellant, Cross-Appellee, v. GULF FLEET MARINE CORPORATION, INC., et al., Defendants-Appellees Gulf Fleet Marine Corporation, Defendant-Appellee, Cross-Appellant.

No. 83-3737

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 11, 1985.

Joel P. Loeffelholz, New Orleans, La., for plaintiff-appellant, cross-appellee.

Lemle, Kelleher, Kohlmeyer & Matthews, Miles P. Clements, New Orleans, La., for Gulf Fleet.

Scofield, Bergstedt, Gerard, Hackett & Mount, P.O., J. Michael Veron, Lake Charles, La., for Magcobar Div. of Dresser Ind.

Bruce R. Hoefer, Jr., Milling, Benson, Woodward, Hillyer, Pierce & Miller, New Orleans, La., for Chevron.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS, JOLLY, and HILL, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellant Nellie D. Thornton, a cook aboard the M/V GULF FLEET 35, was seriously injured and permanently disabled when she slipped and broke her ankle in debarking from the vessel onto a dock by means of a metal ramp. She brought this suit claiming Jones Act negligence (46 U.S.C. Sec. 688) and unseaworthiness against her employer Gulf Fleet Marine Corporation, owner and operator of the ship upon which she served, and Magcobar Division of Dresser Industries, Inc., the owner and operator of the dock facility where the injury took place. The trial jury found on specific interrogatories that neither Gulf Fleet nor Dresser was negligent and that the vessel on which she served was not unseaworthy. The jury found that appellant was guilty of "contributory negligence" since this was the way in which the interrogatory was phrased. Thus, in summary, the only fault or responsibility found to exist by the jury was fault on the part of the appellant. The district court denied motions for a directed verdict for appellant and for judgment notwithstanding the verdict. We affirm.

This case involves both claims of unseaworthiness and Jones Act negligence. Our review of an unseaworthiness claim is well established to be the scope of review as defined in Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc), justifying a directed verdict or jnov only "[i]f the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict...." It is also well established that in the instance of a jury verdict under the Jones Act finding negligence on the part of the defendant and in favor of plaintiff seaman, a defendant's motion for directed verdict or jnov falls under a much stricter standard, the standard applied in Federal Employers' Liability Act cases. Taking such a jury verdict away from the plaintiff seaman is appropriate "[o]nly when there is a complete absence of probative facts to support the verdict...." Lavender v. Kurn, 327 U.S. 645, 652, 66 S.Ct. 740, 743, 90 L.Ed. 916 (1946) (FELA case). Alverez v. J. Ray McDermott & Co., 674 F.2d 1037, 1042 (5th Cir.1982).

This latter standard has been stated in many cases and such statements have lacked a caveat covering the situation where the jury verdict is in favor of the defendant in a Jones Act negligence case, and the plaintiff seeks a directed verdict or a jnov. The question whether the same standard requiring only a scintilla of evidence to block a directed verdict or jnov is applicable when the defendant prevails before the jury has not been authoritatively decided in this Circuit. Robin v. Wilson Bros. Drilling, 719 F.2d 96, 98 (5th Cir.1983); Jussila v. M/T LOUISIANA BRIMSTONE, 691 F.2d 217, 219 (5th Cir.1982); Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 (5th Cir.1980). But compare Campbell v. Seacoast Products, Inc., 581 F.2d 98, 99 (5th Cir.1978), which applied the more stringent Jones Act standard in evaluating the sufficiency of the evidence to support the jury's finding of no employer negligence but without a specific evaluation of the issue of a differing standard under the Jones Act depending upon whether the plaintiff or the defendant prevailed before the jury.

The Robin, Jussila, and Allen cases cited above specifically discussed the problem of a differing standard depending upon who prevails before the jury in a Jones Act negligence claim, but in each instance the Court found that even applying the less stringent Boeing v. Shipman standard, the jury verdict in favor of the defendant was properly upheld. So also we do the same. Even under the Boeing v. Shipman standard which is more favorable to the plaintiff's motions for directed verdict and jnov in this case, we find that the jury verdict must be upheld.

Since we can readily reach our conclusion under the...