                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2004

Fasold v. DE River Bay Auth
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3624




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-3624


                                   APRIL FASOLD,
                                         Appellant

                                            v.

                      DELAWARE RIVER & BAY AUTHORITY


                      Appeal from the United States District Court
                               for the District of New Jersey
                               (D.C. Civil No. 01-cv-04541)
                     District Judge: Honorable Joseph H. Rodriguez


                               Argued December 6, 2004

                    Before: RENDELL and FISHER, Circuit Judges
                             and YOHN*, District Judge.

                               (Filed December 21, 2004 )


E. Alfred Smith [ARGUED]
1333 Race Street, 2nd Floor
Philadelphia, PA 19107
   Counsel for Appellant




*Honorable William H. Yohn, Jr., Senior District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.
Mary E. Reeves [ARGUED]
Donna Adelsberger & Associates
Six Royal Avenue
P.O. Box 530
Glenside, PA 19038
  Counsel for Appellee


                                OPINION OF THE COURT


RENDELL, Circuit Judge.

       April Fasold appeals the District Court’s grant of summary judgment to the

Delaware River and Bay Authority (“DRBA”) precluding Fasold’s pursuit of her claim

under the Jones Act and general maritime law. Because we conclude that Fasold adduced

evidence sufficient to entitle her to a jury trial, we will reverse the judgment of the

District Court.

                                       I. Background

       April Fasold supervised the food service crew on the F/V TWIN CAPES, a

passenger ferry traveling between Lewes, Delaware and Cape May, New Jersey. Among

her responsibilities was keeping clean the kitchen and galley area. While cleaning the

walk-in refrigerator located in the ferry’s galley, Fasold injured her back moving a keg of

beer stored there. Fasold claims the refrigerator was “filthy” and that, in order for her to

do her job, the keg had to be moved so food and debris behind it could be picked up.

         Fasold filed an action in the District Court alleging negligence pursuant to the




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Jones Act, 46 U.S.C.S. § 688 et seq., and unseaworthiness under general maritime law.1

She claimed that the DRBA had failed to, inter alia, provide a safe place to work;

properly stow the keg; provide the proper equipment to move the keg; and provide a

sufficient number of able-bodied crew. The DRBA moved for summary judgment, and

the District Court granted its motion.

       The District Court had jurisdiction over this action pursuant to the Jones Act, 49

U.S.C. § 688 et seq., and under general maritime law, 28 U.S.C. § 1333; we have

appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                 II. Standard of Review

       Our standard of review of the entry of summary judgment in favor of the DRBA is

plenary. See Hines v. CONRAIL, 926 F.2d 262, 267 (3d Cir. 1991).

                         III. Relevant Statutes and Principles

       The Jones Act provides for recovery by a seaman or woman for personal injuries

suffered in the course of his or her employment in an action at law; it extends to seamen

and women the same rights accorded railway workers under the Federal Employers

Liability Act (“FELA”). See American Dredging Co. v. Miller, 510 U.S. 443, 456

(1994). Though a plaintiff alleging claims under the Jones Act must prove the traditional

elements of negligence – duty, breach, notice, and causation – the standard of proof for



  1
  Also filed were claims for maintenance and cure, and punitive damages, both of
which were resolved by the District Court.

                                             3
causation when asserting negligence under the Jones Act is relaxed, sometimes termed

“featherweight.” Evans v. United Arab Shipping Co. S.A.G., 4 F.3d 207, 210 (3d Cir.

1993). “Causation is satisfied if ‘the proofs justify with reason the conclusion that

employer negligence played any part, even the slightest, in producing the injury.’”

Wilburn v. Maritrans GP, Inc., 139 F.3d 350 (3d Cir. 1998) (quoting Rogers v. Missouri

Pacific R.R. Co., 352 U.S. 500, 506 (1957)).

       Because, “[i]n a Jones Act case, a trial court can direct a jury verdict against a

plaintiff only in those extremely rare instances where there is a zero probability either of

employer negligence or that any such negligence contributed to the injury of an

employee,” Southard v. Independent Towing Co., 453 F.2d 1115, 1118 (3d Cir. 1971)

(emphasis in original) (internal quotation omitted), this Court has stressed that cases

involving injuries to seamen or women are almost always appropriate for the jury.

“Issues of negligence in a Jones Act suit are questions for the jury to determine, and the

jury plays a preeminent role in Jones Act cases.” Id. (internal quotations omitted).

       As to seaworthiness, the owner of a vessel has an absolute and non-delegable duty

to provide a seaworthy ship. See Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). The

Supreme Court has articulated the standard as “not perfection, but reasonable fitness.”

Mitchell v. Trawler-Racer, Inc., 362 U.S. 539, 550 (1960).

       A claim of unseaworthiness targets a condition – how that condition came into




                                              4
being, whether through negligent behavior or otherwise, is irrelevant to liability.2 “It

makes no difference to the shipowner’s liability that he lacked complete control over the

instrumentality causing injury, or that he had neither actual nor constructive notice of the

unseaworthy condition.” Edynak v. Atlantic Shipping, Inc., 562 F.2d 215 (3d Cir. 1977)

(citations omitted). In this way, the doctrine is a species of liability without fault. Unlike

the Jones Act, however, the doctrine of unseaworthiness imposes more than a

“featherweight” standard of proof of causation. A plaintiff must “show not only that the

act or omission played a substantial part in bringing about or actually causing the injury

to him, but also that the injury was either a direct result or a reasonably probable

consequence of the act or omission.” 1B-III Benedict on Admiralty § 28 (2004).

       As a general rule, contributory negligence by a seaman or woman will not defeat

one’s right to recovery; “[c]ontributory negligence is not an absolute defense under

maritime law, but rather it is a basis to apportion damage,” American President Lines,

Ltd. v. Welch, 377 F.2d 501, 504 (9th Cir. 1967), cert. denied, 389 U.S. 940 (1968).

       A grant of summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In reviewing the grant of



  2
   Unseaworthy conditions are not limited to physical defects; a method of stowage or
an unfit crew can give rise to liability.

                                              5
summary judgment, we must affirm if the record evidence submitted by the non-movant

“is merely colorable or is not significantly probative.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).



                                      IV. Discussion

       The District Court rejected both Fasold’s Jones Act and seaworthiness claims.

Acknowledging the featherweight standard in Jones Act cases, the District Court

nonetheless concluded that there was no evidence DRBA knew or should have known

Fasold would injure herself attempting to lift a heavy object without assistance. Because

she was not given a direct order to lift the keg and she failed to ask for assistance in

doing so, the District Court determined, the DRBA was entitled to summary judgment on

all negligence claims. Similarly, regarding Fasold’s allegations of unseaworthiness, the

District Court concluded that, in the absence of a direct order to move the keg without

assistance, Fasold’s injury had resulted from her own negligent use of an otherwise

seaworthy vessel.

       Though the standard of causation for claims brought pursuant to the Jones Act

differs from that applicable to claims of unseaworthiness asserted under general maritime

principles, Fasold presented evidence creating a genuine issue of fact as to the DRBA’s

knowledge of the type of problem she encountered and its duty to her. We conclude that

she was entitled to have a jury hear her claims under both theories.



                                              6
       Fasold looked briefly for a male crew member who might assist her in moving the

keg, but to no avail. There was testimony that often crew were not always willing or able

to help, as they were busy with their own duties. The record demonstrated that there had

been problems in the past with women having to lift heavy objects, the unsuitability of

hand trucks and the size of the crew being insufficient to handle all the work aboard the

ship. The hand truck usually employed to move kegs and other heavy objects was not in

its proper location and not available. Such hand trucks, Fasold has alleged, were

frequently missing or left ashore. Fasold felt under pressure to get her work done and

attempted to move the beer keg herself in order to carry out her duties, which she did not

perceive as optional at a time when clean up was essential. While a jury might determine

Fasold’s actions contributed to her injury and apportion liability accordingly, that does not

foreclose her claims. Based on the evidence in the record before us, and the applicable

standard, she has adduced enough evidence to entitle her to have her claims heard by a

jury. See Southard., 453 F.2d at 1118.

                                      V. Conclusion

       For the reasons stated above, we will REVERSE the District Court’s grant of

summary judgment to Defendant-Appellee DRBA.




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