JONES ACT APPLIED ON LAND TO SEAMAN ATTENDING TRAINING PROGRAM WHO SLIPPED ON ICY PARKING LOT AT FACILITY NOT OWNED OR OPERATED BY SHIP OWNER
DAWN RANNALS, Plaintiff-Appellant, v. DIAMOND JO CASINO, Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2001 U.S. App. LEXIS 20297; 2001 FED App. 0320P (6th Cir.)
January 26, 2001, Argued
September 12, 2001, Decided
September 12, 2001, Filed
[*1] Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 98-07545. David A. Katz, District Judge.
REVERSED and REMANDED.
Plaintiff seaman sued defendant shipowner, alleging that the shipowner was liable under the Jones Act for injuries incurred by the seaman in a fall while attending a training program off the ship. The seaman appealed the judgment of the United States District Court for the Northern District of Ohio which granted summary judgment to the shipowner.
The seaman worked as a deckhand on the shipowners’ riverboat casino, and the seaman was injured by a fall in an icy parking lot of the facility in another state where she was attending a firefighting training program. The shipowner paid for the training, and the seaman’s wages during the training, but the seaman was not required to attend the training. The appellate court held that the seaman raised genuine issues of fact concerning whether her injuries were incurred during the course of her employment, and were caused by unreasonably dangerous icy conditions of which the facility, as the shipowner’s agent, should have known. The training was required for supervisory positions, and the shipowner’s encouragement to attend indicated that attendance was within the scope of the seaman’s employment. Further, any negligence of the facility was imputed to the shipowner, since its duty to provide a safe workplace was non-delegable. Also, the continued existence of the icy conditions during the day was sufficient to permit an inference of constructive notice. Finally, the common law preclusion of liability for a natural accumulation of ice did not apply to claims under the Jones Act.
The judgment granting summary judgment to the shipowner was reversed.
SUMMARY JUDGEMENT FOR SHIP OWNER UP HELD AS SEAMAN HAD NOT SHOWN THAT MEDICAL MONITORING WAS NECESSARY
In re: MARINE ASBESTOS CASES; Plaintiffs-Appellants, v. AMERICAN HAWAII CRUISES,INC.; GREAT INDEPENDENCE SHIP COMPANY; GREAT HAWAIIAN PROPERTIES CORPORATION;GREAT HAWAIIAN CRUISE LINE, INC., dba American Hawaii Cruises, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2001 U.S. App. LEXIS 20136
February 13, 2001, Argued and Submitted, San Francisco, California
September 10, 2001, Filed
[*1] Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-97-77777-HG. Helen Gillmor, District Judge, Presiding.
The United States District Court for the District of Hawaii granted summary judgment to defendant shipbuilders in plaintiff seamen’s claims for exposure to asbestos in the course of employment on board the vessels. The seamen appealed.
The seamen argued that summary judgment was improper. The seamen argued that their claim for recovery fell under the Jones Act, 46 U.S.C.S. ß App. 688 (2000), which granted seamen a claim for personal injury caused by an employer’s negligence. The seamen maintained that the Jones Act permitted recovery for medical monitoring. The seamen failed to raise a genuine issue of material fact as to whether any increased risk of disease made medical monitoring reasonably necessary, or whether early detection would provide any clinical benefit. It was not shown that a treatment existed, or that there was clinical value to administering any such treatment before the onset of symptoms. There was no evidence that a single examination would yield any clinical benefit. The seamen failed to establish that they suffered an injury that was cognizable under a theory of unseaworthiness. They were not sick and uninjured, therefore there was no recovery under the doctrine of cure. The denial of the seamen’s Fed. R. Civ. P. 56(f) motion was not an abuse of discretion because all of the facts needed to raise a genuine issue of material fact were within the control of the seamen.
The judgment was affirmed.
FOREIGN LAW APPLIED IN U.S. LIMITATION PROCEEDING TO DETERMINE SEAMAN’S DAMAGES.
NOOR BEGUM KARIM, Wife of; FAZAL KARIM, Plaintiffs -Appellants – Cross-Appellees v. FINCH SHIPPING COMPANY, LTD.; ET AL, Defendants;FINCH SHIPPING COMPANY, LTD., Defendant – Appellee – Cross-Appellant
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
22001 U.S. App. LEXIS 19657
September 5, 2001, Decided
September 5, 2001, Filed
[*1] Appeal from the United States District Court for the Eastern District of Louisiana. 95-CV-4169. Eldon E Fallon, US District Judge.
In a maritime personal injury case, plaintiff seaman and defendant shipping company appealed a judgment of the United States District Court for the Eastern District of Louisiana which contained a number of rulings, including a ruling that the shipping company was entitled to limitation, but not exoneration, of liability.
Plaintiff seaman was seriously and permanently injured at sea. The district court conducted a trial on defendant shipping company’s action under the Limitation of Liability Act of 1851, 46 U.S.C.S. ß 181 et seq. The parties cross-appealed. The court held: (1) jurisdiction was proper because the shipping company consented to jurisdiction; (2) there was nothing unreasonable about the district court’s conclusions regarding forum non conveniens; (3) the district court did not err in making a determination of quantum under Bangladeshi law by applying English and Indian precedent; (4) it did not err in setting the amount of general damages under Bangladeshi law to be $160,000, (5) it did not err in determining that the general maritime law of Bangladesh was inapplicable; (6) it did not err in granting summary judgment in favor of the shipping company on the seaman’s claim under the United States penalty wage statute; (7) the maintenance claim was not properly before the court; (8) it did not abuse its discretion in setting the initial date of interest accrual; and (9) there was no error in the awarding of litigation costs, including fees.
The judgment of the district court was affirmed.
SHIP OWNER NOT NEGLIGENT FOR REQUIRING SEAMAN TO LIFT 31-POUND MOTOR
THOMAS E. JOHNSON VERSUS LAWSON & LAWSON TOWING COMPANY,INC.
CIVIL ACTION NO. 00-0629 SECTION “R”(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 14607
September 14, 2001, Decided
September 14, 2001, Filed, Entered
[*1] Plaintiff’s motion for reconsideration denied.
Plaintiff, injured party, moved for reconsideration of orders granting summary judgment to defendants, on a finding that making plaintiff lift a 31 pound motor was not negligent as a matter of law, and denying a deferral of summary judgment pending further discovery.
Plaintiff argued that the court misconstrued the factual basis for plaintiff’s injury, which he claimed was not caused by the initial lifting of the motor, but instead when he awkwardly contorted his body to install the motor. The court found that plaintiff had the evidence of the new mechanics of the injury before the court’s order dismissing the claims. Plaintiff had been the only witness to the accident, he had not advanced the new theory before, and he had specifically denied it was the cause of his injury. As to the order refusing to defer summary judgment, plaintiff offered no basis for doing so. Nothing demonstrated that his motion for reconsideration was necessary to correct a manifest error of fact or law, to present newly discovered or previously unavailable evidence, to prevent manifest injustice, or to consider an intervening change in the controlling law.
The court denied plaintiff’s motion to reconsider.
SHIPOWNERS REQUEST FOR MEDICAL EXAM OF SEAMAN FOR PURPOSES OF A SECOND OPINION DID NOT MEET THE REQUIREMENTS OF A DEFENDANT’S MEDICAL EXAM UNDER THE RULES OF CIVIL PROCEDURE SO AS TO JUSTIFY SANCTIONS AGAINST THE SEAMAN FOR HAVING THE SURGERY WITHOUT ALLOWING THE SHIP OWNER TO HAVE AN EXAM DONE
LUIS VEGA, Petitioner, vs. CSCS INTERNATIONAL, N.V., et al.,Respondents.
CASE NO. 3D01-414
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 12490
September 5, 2001, Opinion Filed
[*1] Diamond B’s motion to enjoin further prosecution of Texaco’s third party demand in state court DENIED. Diamond B’s motion to hold Texaco and its attorneys in contempt DENIED. Texaco’s motion to recognize Texaco’s rights to Diamond B’s insurance proceeds DENIED.
Writ of Certiorari to the Circuit Court for Miami-Dade County, Ronald Friedman, Judge. LOWER TRIBUNAL NO. 99-13398.
Certiorari granted; order quashed.
Petitioner employee filed claims in the Circuit Court for Miami-Dade County (Florida), for personal injuries. Respondent employer moved for dismissal or sanctions for intentional spoliation of evidence. The trial court granted the motion and struck the employee’s surgeon as a witness and disallowed his records or medical bills as evidence. The employee petitioned for a writ of certiorari to quash the trial court’s order.
The employee injured his back. His attorney notified the employer’s attorney that the employee was scheduled for back surgery. The employer responded with a letter requesting the employee delay the surgery in order to obtain a second opinion. The employee had the surgery without getting a second opinion. The trial court found the request created an obligation on the employee to not have the surgery and struck the testimony of his surgeon and disallowed the surgeon’s medical records or bills as evidence. The appellate court found the employer never made a request for a defense medical examination under Fla. R. Civ. P. 1.360(a)(1)(A) because the letter did not contain any of the necessary criteria required by the rule, and was thus insufficient to impose a duty on the employee to postpone his surgery. Therefore, it was error for the trial court to conclude that the employee was required to undergo an examination before having surgery. Further, the employer failed to present any evidence that it was prejudiced by any loss of evidence. Thus, excluding the testimony and records of the physician was an abuse of discretion.
Certiorari was granted; the trial court’s order was quashed.