Jury Properly Instructed “Assumption of the Risk” is No Defense, When Employer Injects Such Evidence and Argument Into Case
Union Pacific R. Co. v. Estate of Gutierrez, 2014 WL 4109586 (Tex.App. — Houston [1st Dist.] August 21, 2014), is a Federal Employers Liability Act (or “FELA”) case. But, the Jones Act, applicable to a seaman’s negligence action against his employer for personal injury or death, expressly incorporates the FELA by reference, so court decisions under the FELA are highly persuasive in Jones Act cases, and vice versa.
In this case, although the Court found Congress had amended the FELA in 1939 to abolish the assumption of the risk defense in actions brought under this statute, the Court agreed with plaintiff’s counsel that the railroad’s lawyer had repeatedly placed before the jury argument and evidence implying the deceased rail worker had a choice in many aspects of his job, and essentially that the worker could have through his choices avoided his own accident. Under these circumstances, the appeals court agreed with the trial judge that it was necessary to instruct the jury before it retired to reach its verdict that the assumption of the risk defense was not available to the railroad defendant, in order to ensure the jury had a proper understanding of applicable law.The appeals court summarized the deceased worker’s estate’s position on appeal as follows:
“Appellees, however, argue that appellant injected the issue of assumption of the risk by repeatedly telling the jury that Gutierrez had chosen to work the job on which he was injured, in the location where he was injured, and under the conditions existing at the time, despite there being no requirement for him to do so because his seniority allowed him to choose a different job. In support of their position, appellees point to several exchanges in voir dire during which appellant’s counsel asked venire members how they responded to unsafe working conditions in their job, suggesting that stopping work in such conditions was ‘good sense’ and assuming ‘personal responsibility.’ In opening statements, appellant’s counsel referred several times to Gutierrez’s seniority, that it allowed him to bid on any job he wanted, and that he picked the RIP track because that was his preferred location. Appellees also point to co-workers’ testimony elicited by [the railroad] that Gutierrez chose to work the job on which he was injured, despite seniority that allowed him to choose any position. Appellees argue that given these examples, and the fact that appellant claimed that Gutierrez had been contributorily negligent in causing his injury, an instruction that assumption of the risk is not a defense was warranted.”
The appeals court, in agreeing that the curative instruction to the jury on the non-applicability of the assumption of the risk defense was warranted, wrote:
“[A] trial court may instruct a jury that assumption of the risk is not a defense if there are ‘facts strongly suggesting assumption of the risk…..Here, appellant’s counsel reminded the jury numerous times—in voir dire, in opening statements, and through witness testimony—of the fact that Gutierrez’s seniority allowed him to choose any job he wanted but that he had chosen the job and location where he worked….Further, we note that a defendant’s intentions in presenting such evidence is not the proper focus; rather, it is the potential impact on the jury that governs whether an instruction is given….”
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Port Engineer Who Worked Mostly on Stationary Vessels Entitled to Jury Trial on Seaman Status
In Haas v. Beatty Street Properties, Inc., 2014 WL 2932258 (S.D. Tex. June 27, 2014), Timothy Haas worked as an assistant port engineer for Beatty Street Properties, Inc. (“BSP”). His job was to maintain the mechanical systems on BSP’s boats. He spent about 90% of his working hours on the boats, which were docked about 60% of the time. But, about 40% of the time, the boats were moving, often carrying pilots to ships. One day, while working on a docked boat, Haas claimed he injured his lower back while handling a water pump.
BSP asked the court to dismiss his Jones Act case, arguing Haas couldn’t possibly be a seaman. The court refused Haas’ employer’s motion, citing the Fifth Circuit’s 2014 decision in Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014). Judge Costa found that the appeals court in Naquin had held that “an employee who performed nearly all of his work on docked vessels was a seaman.” Accordingly, the court ruled Haas was entitled to a jury trial on whether he qualified as a seaman under the Jones Act.
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Towboat Company’s One-Sided Review of, and Delay in Paying, Seaman’s Maintenance and Cure Claim Draws $300,000 Punitive Damages Judgment
In Stermer v. Archer-Daniels-Midland Co., 2014 WL 25153872014 (La. App. 3d Cir. June 4, 2014), American River Transportation Company (ARTCO) employed Adrienne Stermer as a cook on its towboat. About two weeks into her hitch, while the towboat was facing up to its tow and Stermer was in the galley, kneeling before an open refrigerator, cleaning a steak sauce tray, the vessel’s movements caused her to lose her balance and fall forward. Apparently no one warned her to “watch the bump.” Stermer tried to steady herself by grabbing a shelf inside the refrigerator, but her fingers went through the rack and her right hand was pushed backward. Her knees hit the floor. She tried to use her left hand to brace herself for the fall, but instead rolled onto her right ankle. Nevertheless, she got herself up, brushed herself off, and returned to work. While she had pain and swelling in her hands and right ankle, she just took Advil. Stermer testified she was afraid to report her accident for fear of being fired. But, five days later, when her hands and right ankle continued to swell and she could no longer tie her shoes, Stermer reported her injuries to the boat’s engineer, who informed the pilot. Stermer then completed an ARTCO accident report.
Adrienne Stermer worked as a cook aboard the ARTCO towboat, the M/V COOPERATIVE ENTERPRISE
Three days later, ARTCO put Stermer ashore in Paducah, Kentucky, and to a hospital there. The history of her injuries that Stermer gave to medical personnel at Western Baptist Hospital was consistent with what she had told the engineer and what she had written in her accident report. The ER physician diagnosed bilateral hand and wrist sprains and a right ankle sprain, and prescribed antiinflammatories, pain medication, and an air cast for Stermer’s right ankle. She then returned to her towboat, tried to work, but was relieved, and sent home to Louisiana.
Later, the vessel’s captain and a deckhand testified they were in the galley when Stermer claimed to have been hurt, that there were two bumps during the facing-up, but they did not see her fall into the refrigerator. Just five days after Stermer reported her accident, ARTCO sent Stermer a letter asserting her “recent complaints did not manifest itself [sic] in the service of the vessel” and that it would not pay her maintenance and cure. Three days later, ARTCO sent Stermer another letter, this time to fire her. It wrote her “willful disregard for the truth … demonstrated an unacceptable standard of conduct.”
A hand surgery specialist in Louisiana continued to treat Stermer, at first conservatively, but then with surgery, to repair a scapholunate dissociation. This is a tear in the ligament between the scaphoid and lunate bones in the wrist. This surgeon found Stermer’s injury was not preexisting. ARTCO obtained an “IME,” or “independent medical opinion,” from an orthopedic surgeon who opined the injury was present before the accident aboard the towboat. ARTCO, despite being kept continuously apprised of Stermer’s medical course, and despite Stermer’s demands for maintenance and cure, including a request to pay for her surgery, refused to pay maintenance and cure for two and a half years. It delayed approving the surgery for 27 months, even though its IME physician agreed Stermer needed the surgery.
Stermer brought claims in state court against ARTCO for negligence under the Jones Act and, under the general maritime law, for unseaworthiness, maintenance and cure, and retaliatory discharge. At trial, the judge awarded Stermer on her Jones Act negligence claim nearly $100,000 for lost employee benefits, $337,000 in lost wages, and $200,000 for pain and suffering. The court also found ARTCO’s refusal to pay Stermer maintenance and cure for two and a half years “arbitrary and capricious” and assessed an additional $300,000 in punitive damages and $150,000 in attorney’s fees. The court found she had not proved her unseaworthiness and retaliatory discharge claims.
ARTCO appealed only the punitive damages and attorney’s fee aspects of the trial court’s judgment. The Louisiana appellate court described the seaman’s maintenance and cure claim under the general maritime law, the deferential standard under which it is to be judged, and the consequences maritime employers face when they callously disregard their maintenance and cure obligation.
The appeals court in its opinion wrote how maintenance and cure “is an ancient duty imposed upon the owner of a ship to provide food, lodging and necessary medical services to seamen who become ill or injured during service to the ship” and how “[r]ecovery is not dependent upon negligence of the vessel or the owner and the burden of proof in seeking maintenance and cure is relatively light.” To win a maintenance and cure claim, “a seaman need only prove that the injury arose during his service of the vessel” and the seaman does not even have to prove his or her duties caused the injury.
Continuing, the appeals court noted that while an employer is entitled to investigate a seaman’s claim for maintenance and cure, to rely on recognized defenses to deny benefits when appropriate, and to require corroboration of the claim, the employer cannot be “lax” in its investigation. Further, the court wrote, “when an employer’s investigation of a seaman’s claim reveals that doubts or ambiguities exist as to whether the seaman is entitled to maintenance and cure, they are resolved in favor of the seaman.” “If an employer fails to properly investigate a claim for maintenance and cure or unreasonably rejects a claim after investigating the claim, the employer may be liable for compensatory damages that are a consequence of the failure to pay maintenance and cure. … The employer may also be liable for punitive damages and attorney fees if it is ‘more egregiously at fault’ in denying a proper claim for maintenance and cure. … This higher degree of fault has been explained as ‘callous and recalcitrant, arbitrary and capricious, or willful, callous and persistent.’ … An employer’s failure or refusal to consider the medical evidence of an injury or illness submitted by a seaman in support of his claim for maintenance and cure is grounds for concluding the employer’s failure to institute maintenance and cure is arbitrary and willful.”
The appellate court affirmed the trial court’s $300,000 punitive damages award for willful failure to timely pay maintenance and cure, but sent the case back to the trial court to develop further evidence on the lower court’s attorney’s fee award. It found ARTCO “considered only evidence that indicated the incident Ms. Stermer reported did not occur before denying her claim for maintenance and cure,” yet disregarded seven key facts that supported the validity of Stermer’s maintenance and cure claim. The appeals court held: “The totality of the evidence leads to the conclusion that once ARTCO had evidence that no accident occurred, it did not consider evidence corroborating Ms. Stermer’s claim that she was injured October 9. Under these facts, we find that ARTCO’s investigation of Ms. Stermer’s claim was neither diligent nor reasonable and, therefore, find no manifest error in the trial court’s conclusion that ARTCO was arbitrary and capricious in denying Ms. Stermer’s claim.” The appeals court also tacked-onto the judgment $10,000 for Stermer’s attorney’s fees on appeal.
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Federal Appeals Court Affirms Unseaworthiness Findings and $1.2 Million Pain & Suffering Damages to 52-Year-Old Tug Crewman
I posted in Towboatlaw on this case in January 2013, four days after U.S. District Judge Nina Gershon entered her decision in Harrington v. Atlantic Sounding Co., 2013 U.S. Dist. LEXIS 2988 (E.D.N.Y. Jan. 7, 2013), finding Atlantic Sounding Co., Inc. and Weeks Marine, Inc. negligent under the Jones Act and the tug CANDACE unseaworthy under the general maritime law. She found no contributory negligence and awarded Frederick J. Harrington Jr., 52 at the time of the accident, $478,948 in past lost wages and loss of future earning capacity, $500,000 for past pain and suffering, and $700,000 for future pain and suffering. The defendants appealed to the U.S. Second Circuit Court of Appeals.
Three days ago, in Marasa v. Atlantic Sounding Co., 2014 U.S. App. LEXIS 1073 (2d Cir. Jan. 21, 2014) (unpub.), this appeals court largely affirmed the judgment, which, with prejudgment interest, totaled $1,727,471.16. The Second Circuit only reduced the judgment by $16,308, the sum which the defendants previously paid pursuant to a Claim Arbitration Agreement.
Of particular interest in the appeals court’s decision is its approval of the trial court’s findings in favor of the injured crewman on his claim for general maritime law unseaworthiness, and the trial judge’s award of $1.2 million for past and future pain and suffering damages.
As to unseaworthiness, the Second Circuit wrote how its precedent has long held that a vessel can be unseaworthy if its crew is inadequately trained: “Our precedent recognizes that ‘a vessel being operated by an incompetent captain or crew is considered unseaworthy,'” citing Complaint of Messina, 574 F.3d 119, 127 (2d Cir. 2009), Matter of Guglielmo, 897 F.2d 58, 61 (2d Cir. 1990), Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1155 (2d Cir. 1978), and 1B Benedict on Admiralty § 24 (2004) (recognizing that “an unseaworthy condition . . . on an otherwise fit vessel” can be created by “incompetent training or experience” or “unsafe method of work”).
In affirming Judge Gershon’s assessment of $500,000 in past and $700,000 in future pain and suffering damages, the Second Circuit found, first, that even though the injured crewman, Frederick J. Harrington Jr., died while the appeal was pending (Madeline Marasa is the personal representative of Harrington, in whose name the appeal was defended), the defendants were unentitled to a reduction in his estate’s future pain and suffering damages award. Second, the appeals court discussed how the trial court found “Harrington’s injury resulted in extraordinary pain and suffering, requiring multiple spinal surgeries and daily medication.” Judge Gershon had described in detail Harrington’s two back surgeries and the many activities he could no longer perform, given his injuries. Accordingly, the Second Circuit did not find the $1.2 million pain and suffering damages award excessive, and affirmed.
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Federal Judge Refuses to Enforce Release Deckhand Signed While Unrepresented by Counsel, Lacking Specialized Medical Advice, and Paid Only $860 for Serious Back Injury
While deckhanding for Double J. Marine, LLC aboard its towboat, the M/V MISS KAYLYNN, Matthew Nuber seriously injured his back while pulling on a face wire. On the day of the accident, Nuber only had the benefit of an emergency room physician’s opinion, without any diagnostic testing, such as an x-ray or an MRI, that he had only pulled a muscle. One week later, Nuber returned to the ER where another physician released him to work full duty, still without any diagnostic testing, and without the opinion of a specialist, such as an orthopedic or neurosurgeon.
A deckhand handling a face wire aboard a barge.
Later the same day, deckhand Nuber met with the vessel owner’s claims adjuster at a gas station and signed a “Receipt, Release, and Hold Harmless Agreement.” The adjuster read and explained the release to Nuber and Nuber signed the release, purportedly knowingly giving up all his claims against Double J for the shipboard accident. In exchange for signing the release, Double J paid Nuber only $860. Nuber returned to work for Double J the next day.
About one month later, Nuber’s back pain returned. Double J placed him on light duty, until Nuber could no longer continue to work. Then, Double J finally sent Nuber to see a back specialist, an orthopedic surgeon, who promptly ordered an MRI. The doctor diagnosed Nuber with herniated discs, recommended surgery, and opined the shipboard accident had caused the back injury. Nuber then demanded Double J pay him maintenance and cure under the general maritime law. Double J responded by filing this lawsuit, seeking a declaratory judgment that the release Nuber signed insulated it from Nuber’s claims. Nuber then filed a Jones Act negligence, general maritime law unseaworthiness and maintenance and cure lawsuit against Double J in state court.
In Double J. Marine, LLC v. Nuber, 2013 U.S. Dist. LEXIS 173408 (E.D. La. Dec. 11, 2013), U.S. District Judge Martin L.C. Feldman of the Eastern District of Louisiana denied Double J’s motion for summary judgment, finding there were fact issues as to whether the release was enforceable. Consistent with longstanding admiralty law, Judge Feldman discussed how the courts are charged with being protective of the rights of seamen:
“Seamen are wards of admiralty law, whose rights federal courts are duty-bound to jealously protect. … In protecting their rights, the Court must be ‘particularly vigilant to guard against overreaching when a seaman purports to release his right to compensation for personal injuries.’ … At the same time, however, the Court must balance the utility of maintaining confidence in the finality of such settlements. … In carefully scrutinizing releases or settlement agreements involving seamen, the Court must ultimately determine whether the seaman had ‘an informed understanding of his rights and a full appreciation of the consequences’ of executing the release at the time he executed it.”
Judge Feldman further wrote how the seaman’s employer bears the burden of proving the validity of a release, how the amount of money he or she is paid for the release is significant, as is the nature and extent of any medical and legal advice the seaman had available to him or her when signing the release:
“The party claiming that the matter has been settled bears the burden of demonstrating that a seaman’s release of claims was ‘executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights.’ … Adequacy of consideration is one factor for the Court to consider in determining whether the seaman had an informed understanding of his rights. … However, the Court ‘lacks authority, especially where the seaman testifies to complete satisfaction, to void the agreement simply because the court thinks the seaman could have negotiated a better deal.’ … Another factor the Court considers in determining whether the seaman had an informed understanding of his rights is the nature of medical and legal advice available to him. … In this regard, a seaman ‘may have to take his chances’ that a properly diagnosed condition is ‘more serious and extensive than originally thought.’ … Other factors the Court considers include whether the parties negotiated at arm’s length and in good faith, and whether there is the appearance of fraud, deception, coercion, or overreaching.”
Here, Judge Feldman had to review competing versions of the gas station release signing: a transcript of the “ceremony” versus an affidavit from Nuber. He concluded the release could not be summarily enforced against Nuber. The Court’s analysis:
“Double J. contends that the record establishes that, at the time of releasing his rights, Nuber had an informed understanding of his rights and a full appreciation of the consequences. The Court disagrees. The record includes, on the one hand, a transcript of the meeting between Nuber and the adjuster in which Nuber indicated that he understood his rights and agreed to release them, and on the other, an affidavit executed by Nuber in which he swears he did not fully understand the ramifications of the release. That alone creates a genuine issue regarding whether Nuber executed the release freely and with a full understanding of his rights.”
* * *
“The record also reveals that Nuber has only completed the 10th grade in special education classes, that he only received $530 in [new] consideration for settlement, and that he was not represented by counsel when he executed the release. ‘Although a court may uphold a release even when the seaman is not represented by his own attorney, [the Fifth Circuit] has repeatedly emphasized the importance of counsel in determining whether a seaman fully understood his rights and the consequences of releasing those rights.’ … Neither did Nuber receive an independent medical opinion regarding his injuries before executing the release.”
* * *
“Double J. contends that the record clearly establishes that Nuber received adequate medical advice. The Court again disagrees. The record reveals that, before he signed the release, Nuber was treated twice at River Parishes Hospital where he was diagnosed with a pulled muscle and told to return to work. The emergency room physicians did not conduct any diagnostic testing, and did not refer Nuber to a specialist. When Nuber later sought more treatment, Dr. Nutik ordered an MRI, diagnosed Nuber with herniated discs, and recommended surgery. The record at least reveals a genuine issue regarding the adequacy of the medical advice Nuber initially received, if not a mutual mistake regarding the nature of Nuber’s injury.”
* * *
“Finally, although Double J. maintains that the parties negotiated at an arm’s length and in good faith, the record shows that Nuber signed the release at a gas station on the very same day he received treatment. Double J. has failed to meet its burden of establishing that Nuber signed the release freely, without deception or coercion, and with a full understanding of his rights.”
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