Veberes v. Knappton Corp.

• Decision Date: 18 October 1988
• Citation: 759 P.2d 279,92 Or.App. 378
• Parties: Daniel E. VEBERES, Respondent, v. KNAPPTON CORPORATION, a Delaware corporation, Appellant. A8408-04586; CA A41078.
• Court: Oregon Court of Appeals

Page 279

759 P.2d 279

92 Or.App. 378

Daniel E. VEBERES, Respondent, v. KNAPPTON CORPORATION, a Delaware corporation, Appellant.

A8408-04586; CA A41078.

Court of Appeals of Oregon.

Argued and Submitted June 29, 1987.

Decided Aug. 10, 1988.

Reconsideration Denied Sept. 23, 1988.

Review Denied Oct. 18, 1988.

Mildred J. Carmack, Portland, argued the cause for appellant. With her on the briefs were Daniel F. Knox and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Daniel C. Dziuba and Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

This personal injury action was brought under the Jones Act, 46 U.S.C. App. § 688, by a seaman against the owner of the tug CHAMPION on which he was working at the time he was injured, alleging that defendant was negligent and that the CHAMPION was unseaworthy. The jury returned a verdict for plaintiff, finding both that defendant was negligent and that the CHAMPION was unseaworthy. Two of the 12 jurors dissented from the finding of negligence, and two different jurors disagreed with the finding of unseaworthiness. As explained below, the jury found that plaintiff was 49 percent responsible for his injuries and that he was damaged in the amount of $400,000. Defendant appeals, contending that the verdict should not have been received, because it was invalid, and that there was insufficient evidence of negligence and unseaworthiness to submit to the jury.

On March 28, 1983, plaintiff was working as a deckhand aboard the CHAMPION on the Columbia River. The only other person on board was the captain. At about 3 p.m., plaintiff and the captain brought the tug into a dock where they planned to pick up a "spill boom" ¹ from the vessel PECOS. The captain maneuvered the vessel along side the PECOS with the spill boom floating between the two vessels. While the captain tried to keep the CHAMPION abreast the PECOS in the river's current, plaintiff attempted to retrieve the spill boom with a hook attached to a line. When the captain put the engine in gear, the CHAMPION suddenly hit the PECOS, crushing plaintiff's arm between the vessels. At the time when the vessels collided, the captain could not see plaintiff.

In a special verdict, ² ten jurors found that the tug was unseaworthy, ten (but not the same ten) found that defendant was negligent and 12 found that plaintiff was negligent. The same ten jurors who found that the vessel was unseaworthy found that defendant was 51 percent at fault and that plaintiff was 49 percent at fault and nine of them agreed on damages. Defendant assigns error to the verdict, arguing both that it is invalid and that it violated the trial court's instructions.

It first argues that an insufficient number of jurors agreed on holding it liable for plaintiff's injuries. Clark v. Strain et al., 212 Or. 357, 319 P.2d 940 (1958), holds that, in a civil case, the same nine jurors must agree on every issue material to the decision in order to return a legal verdict. Or. Const., Art. VII (Amended); ORCP 59 G(2). That is true for both special and general verdicts. Munger v. S.I.A.C., 243 Or. 419, 414 P.2d 328 (1966). However, that rule applies only to cases in which the answers are interdependent, not where they are separate and independent. Here, ten jurors concluded that defendant was negligent, with jurors number 1 and number 4 dissenting. Ten jurors concluded that the CHAMPION was unseaworthy, with jurors number 5 and number 8 dissenting. Therefore, defendant contends, only eight of the 12 jurors agreed to hold it liable, whereas nine jurors are required to render a verdict in a civil action. Or. Const., Art. VII (Amended), § 5(7); Clark v. Strain et al., supra.

Defendant's argument assumes that negligence and unseaworthiness are interdependent concepts when, in fact, they are alternative theories of recovery. A seaman may bring an action for negligence under the Jones Act or for injuries caused by the unseaworthiness of a vessel. The relationship between a claim under the Jones Act and an unseaworthiness claim was discussed in Brunner v. Maritime Overseas Corp., 779 F.2d 296, 298-99 (5th Cir. (cert. den.) 476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655 (1986), in which the plaintiff alleged injuries resulting from a fall due to an oil spill on the ship:

"The history of the unseaworthiness claim shows that it developed independently of Jones Act negligence and has been treated as a separate cause of action ever since. The origin of the seaman's right to recover for injuries caused by an unseaworthy ship can be found in European and English law dated back to 1597. (Footnote omitted.)

" * * *

"In 1920, Congress passed the Jones Act. This act gave recovery to seamen for injuries sustained through the negligence of the shipowner. * * * The Supreme Court has steadfastly adhered to the principle that unseaworthiness is a completely separate concept from negligence. See Usner v. Luckenbach Overseas Corp., 400 US 494, 91 S Ct 514, 27 L Ed 2d 562 (1971).

" * * *

" * * * In the present case, the jury was instructed that these were two separate theories of recovery. The jury could well have concluded that the shipowner was negligent for allowing oil on the deck of his ship, but that oil on the deck of the ship did not render the vessel unfit to go to sea. The jury has the power to determine what facts constitute unseaworthiness just as it has the power to decide if there was negligence."

Because negligence and seaworthiness are not interdependent, it matters not that the same nine jurors failed to find negligence and unseaworthiness. Nine of the same jurors who found unseaworthiness agreed on the allocation of fault and the amount of damages. It was on that basis that the verdict was received. The verdict...