     Case: 17-30963   Document: 00514784670     Page: 1   Date Filed: 01/07/2019




                       REVISED January 7, 2019

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                 No. 17-30963                         FILED
                                                               December 19, 2018
                                                                 Lyle W. Cayce
DAVID J. RANDLE,                                                      Clerk

             Plaintiff - Appellant

v.

CROSBY TUGS, L.L.C.,

             Defendant - Appellee



                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before KING, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:
      While working aboard the M/V DELTA FORCE, David J. Randle
suffered a stroke. The nature of his injury was not immediately apparent, and
the captain of the vessel called 911. The emergency responders took Randle to
a nearby hospital, where physicians failed to diagnose his condition correctly.
As a result, Randle did not receive medication that might have improved his
post-stroke recovery. Randle sued the owner of the M/V DELTA FORCE,
arguing that it breached its duty under the Jones Act to provide Randle with
prompt and adequate medical care. The district court granted the vessel
owner’s motion for summary judgment. We AFFIRM.
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                                No. 17-30963
                                      I.
      Crosby Tugs, L.L.C. (“Crosby”), employed Randle as a seaman aboard
the M/V DELTA FORCE. On the morning of Randle’s stroke, the vessel was
temporarily docked in Amelia, Louisiana. Randle had been unloading a grocery
delivery onto the boat when he began to feel fatigued and lightheaded. He
retreated to his cabin to rest. Shortly thereafter, a fellow crewmember heard a
banging coming from Randle’s cabin. The crewmember discovered Randle
incapacitated on the cabin floor and unable to communicate. The crewmember
immediately notified the captain, who quickly called 911.
      Acadian Ambulance Services (“Acadian”) responded to the call. At the
direction of the Louisiana Emergency Response Network (“LERN”), Acadian
transported Randle to Teche Regional Medical Center (“TRMC”). Crosby did
not instruct Acadian to take Randle to TRMC. Nor did Crosby hire, authorize,
or otherwise contract with TRMC to administer medical care to its seamen.
      Although the Acadian paramedics suspected that Randle was suffering
from a stroke, the TRMC physicians failed to diagnose his condition as such.
After performing a CT scan without contrast and consulting a telemedicine
physician in New Orleans, the TRMC physicians diagnosed Randle with a
brain mass and transferred him to another hospital for further treatment.
Randle’s medical expert testified that TRMC’s physicians could have “easily”
diagnosed the stroke if they had administered a CT scan with contrast.
      Because the TRMC physicians failed to diagnose Randle’s stroke
correctly, they did not administer “tissue plasminogen activator,” a medication
that could have improved Randle’s post-stroke recovery. To be effective, the
medication must be administered within three hours of the stroke. By the time
Randle’s stroke was correctly diagnosed, it was too late for the medication to
be effective.


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                                      No. 17-30963
       Randle is permanently disabled because of the stroke and needs constant
custodial care. He brought suit against Crosby, arguing that Crosby
negligently failed to provide prompt and adequate medical care; provided an
unseaworthy vessel; and failed to provide maintenance-and-cure benefits.
       The district court granted Crosby’s motion for partial summary
judgment on Randle’s negligence and unseaworthiness claims. The parties
settled Randle’s maintenance-and-cure claim prior to this appeal. On Randle’s
motion, the district court certified the partial summary judgment as a partial
final judgment pursuant to Federal Rule of Civil Procedure 54(b), from which
Randle could appeal.
                                            II.
       “We review a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied below.” Rogers v. Bromac
Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is
appropriate when “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
                                           III.
       Randle appeals only the district court’s entry of summary judgment on
his negligence claims. 1 Under the Jones Act, “[a] seaman injured in the course
of employment . . . may elect to bring a civil action at law . . . against [his]
employer.” 46 U.S.C. § 30104. A Jones Act seaman’s rights parallel those of a


       1Randle only discusses unseaworthiness claims generally, using such claims as an
analogy to his negligence claim. Because he does not challenge the district court’s entry of
summary judgment on his unseaworthiness claim, we consider this argument to be forfeited.
See United States v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010) (finding argument not
adequately presented where brief did not discuss the issue “in any depth”).
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                                  No. 17-30963
railroad employee under the Federal Employers’ Liability Act (“FELA”). Id.
(making applicable all statutes “regulating recovery for personal injury to, or
death of, a railway employee” to a seaman’s Jones Act action); Gautreaux v.
Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997) (en banc). “A seaman
is entitled to recovery under the Jones Act, therefore, if his employer’s
negligence is the cause, in whole or in part, of his injury.” Gautreaux, 107 F.3d
at 335 (citing 45 U.S.C. § 51 (imposing liability on railroads for the negligence
of their officers, agents, or employees)).
      Randle argues that Crosby, through its employees, acted negligently by
merely calling 911 in response to his stroke. Randle also argues that Crosby is
vicariously liable for the TRMC physicians’ alleged medical malpractice. We
address each argument in turn.
                                        A.
      Randle contends that Crosby breached its duty to provide adequate
medical care by merely calling 911 in response to his stroke. A shipowner has
a nondelegable duty to provide prompt and adequate medical care to its
seamen. De Zon v. Am. President Lines, 318 U.S. 660, 667 (1943); De Centeno
v. Gulf Fleet Crews, Inc., 798 F.2d 138, 140 (5th Cir. 1986). Thus, a shipowner
is directly liable to its seaman under the Jones Act when it fails to provide
proper medical care. Cent. Gulf S.S. Corp. v. Sambula, 405 F.2d 291, 298 (5th
Cir. 1968).
      The extent of the shipowner’s duty to provide medical care depends on
“the circumstances of each case” and “varies with the nature of the injury and
the relative availability of medical facilities.” Id. at 300. A shipowner breaches
its duty to provide prompt and adequate medical care “when [it] fails to get a
crewman to a doctor when it is reasonably necessary, and the ship is
reasonably able to do so.” Olsen v. Am. S.S. Co., 176 F.3d 891, 896 (6th Cir.
1999); see also De Centeno, 798 F.2d at 140. A shipowner also violates this duty
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                                        No. 17-30963
when it takes its seaman to a doctor it knows is not qualified to care for its
seaman’s injury. See Sambula, 405 F.2d at 299-300.
       Randle has not put forth evidence demonstrating a genuine issue of
material fact as to whether Crosby fulfilled its duty to provide medical care
under these circumstances. Randle was suffering an unknown but clearly
urgent medical emergency in the service of a ship away from its home port. By
calling 911, Crosby’s employees selected the course of action reasonably
calculated to get Randle to a medical facility that would be able to treat him.
Randle acknowledges that TRMC could have properly diagnosed and treated
his stroke by administering a CT scan with contrast. That the TRMC
physicians may be faulted does not mean that Crosby is directly liable for
failing to procure adequate medical care. Under these circumstances, Crosby
made reasonable efforts to secure appropriate medical treatment, and it was
not negligent in its provision of medical care to Randle. 2 Cf. id. at 301 (noting,
in considering shipowner’s treatment of seaman’s severe eye injury, “[t]he law
does not require prognostic omniscience of the master, but it does impose upon
him a duty to make reasonable efforts to secure the treatment leading most
naturally to sight rather than blindness”).




       2 Randle also urges that he should have been taken to a stroke center, which would
have been more likely to diagnose his stroke. But the test is not, with the benefit of hindsight,
whether Randle received the best care, but instead, whether the care he received was
reasonable under the circumstances. As discussed above, Randle’s medical expert testified
that TRMC was capable of properly treating his stroke. Moreover, Randle has not
demonstrated that Crosby could have reasonably taken other action. Randle has not shown
that there was a stroke center nearby, that Crosby was capable of extracting Randle from the
vessel and taking him to a stroke center itself, or that Crosby could have instructed the
ambulance to go to a specific hospital. In fact, Randle admitted that he did not believe there
was anything else Crosby’s employees could have done to help him, and that his own
“instinct” would have been to call 911. Thus, there is no genuine issue of material fact that
Crosby procured prompt and adequate care under the circumstances.

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                                   No. 17-30963
      Randle analogizes his case to De Centeno and Sambula, arguing that
Crosby failed to take him to a capable medical provider. But neither case alters
our conclusion that Crosby acted reasonably under the circumstances. Unlike
De Centeno, this is not a case where the shipowner procured initial treatment
and then did nothing as the seaman’s condition continued to deteriorate. See
798 F.2d at 139-40. Nor is this case like Sambula, in which we concluded that
the shipowner acted negligently by taking its seaman to a general practitioner,
rather than an ophthalmologist. 405 F.2d at 300-01. In Sambula, the seaman’s
eye injury was “such that even a layman could have recognized the possibility
of internal eye damage.” Id. at 293. Here, Crosby’s employees did not know
what was wrong with Randle, nor was it obvious. Thus, unlike the shipowner
in Sambula who provided its seaman with the incorrect type of care, Crosby
properly sought out emergency medical services given the nature of Randle’s
illness.
      Randle has not shown that there is a genuine issue of material fact as to
whether Crosby acted negligently by calling 911. Therefore, we conclude that
the district court properly granted summary judgment for Crosby on Randle’s
direct liability claim.
                                        B.
      Randle argues that Crosby should also be held vicariously liable for the
TRMC physicians’ alleged medical malpractice. A shipowner is liable “for the
injuries negligently inflicted on its employees by its ‘officers, agents, or
employees.’” Hopson v. Texaco, Inc., 383 U.S. 262, 263 (1966) (per curiam)
(quoting 45 U.S.C. § 51). The word “agents” is given “an accommodating scope,”
requiring only that the “employee’s injury [be] caused in whole or in part by
the fault of others performing, under contract, operational activities of his
employer.” Id. at 264 (quoting Sinkler v. Mo. Pac. R.R. Co., 356 U.S. 326, 329
(1958)). Thus, a shipowner is vicariously liable for the negligence of an on-
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                                       No. 17-30963
board physician in its employ. De Zon, 318 U.S. at 668. We have also held that
a shipowner is vicariously liable for an on-shore physician “it chooses to treat
its seaman.” De Centeno, 798 F.2d at 140; see also Sambula, 405 F.2d at 299
(stating standard for vicarious liability for on-shore physician as “whether the
ship was negligent in selecting and relying upon [the physician]”). 3
       But this “accommodating scope” is not boundless—even in the context of
FELA, the Supreme Court has defined an agent as one “performing, under
contract, operational activities of [the] employer.” Hopson, 383 U.S. at 264
(emphasis added) (quoting Sinkler, 356 U.S. at 329). We are not aware of any
case holding that FELA overrides agency principles such that an employer will
be liable for the acts of an unrelated third party. Accordingly, we have
recognized that a shipowner will not be held vicariously liable for the
negligence of a physician that the seaman chooses himself. Joiner v. Diamond
M. Drilling Co., 688 F.2d 256, 262 n.9 (5th Cir. 1982).
       Therefore, although we must give the word “agent” an “accommodating
scope,” we cannot forget the basic principles of agency law. Randle argues that
a shipowner’s vicarious liability arises from its nondelegable duty to provide
adequate medical care, regardless of whether the shipowner employs or
affirmatively selects the medical provider. This reasoning misconstrues agency


       3  Our sister circuits have similarly noted that shipowners may be held vicariously
liable for physicians they affirmatively select, hire, or with whom they have a contract. E.g.,
Dise v. Express Marine, Inc., 476 F. App’x 514, 521-22 (4th Cir. 2011) (unpublished) (holding
tugboat owner not vicariously liable where it did not take an “affirmative act to select or
otherwise engage the [physician]”); Greenwell v. Aztar Ind. Gaming Corp., 268 F.3d 486, 492
(7th Cir. 2001), abrogated on other grounds by McCarter v. Ret. Plan for Dist. Managers of
Am. Family Ins. Grp., 540 F.3d 649, 653 (7th Cir. 2008) (finding casino boat owner not
vicariously liable where doctors were neither employees of the boat nor acting on its behalf );
Olsen v. Am. S.S. Co., 176 F.3d 891, 895-96 (6th Cir. 1999) (noting that “a shipowner is liable
for the negligence of an on-shore physician that it hires to treat a crewman,” and may be
vicariously liable “when the shipowner selects a doctor who acts negligently” (citing De
Centeno, 798 F.2d at 140)); Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 680 (2d Cir.
1971) (finding physician was shipowner’s agent where services were provided under
contract).
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                                   No. 17-30963
principles: a nondelegable duty cannot create an agency relationship because
such a duty presupposes an agency relationship. Put otherwise, an agency
relationship is only formed when the principal takes an affirmative act to select
the agent—regardless of the principal’s duty to a third party. See Crist v.
Dickson Welding, Inc., 957 F.2d 1281, 1286 (5th Cir. 1992) (“For the doctrine
of apparent authority to apply, the principal must first act to manifest to an
innocent third party the alleged agent’s authority.” (emphasis added));
Restatement (Third) of Agency § 3.01 (Am. Law Inst. 2006) (“Actual authority
. . . is created by a principal’s manifestation to an agent that, as reasonably
understood by the agent, expresses the principal’s assent that the agent take
action on the principal’s behalf.” (emphasis added)); id. at § 3.03 cmt. b
(apparent authority “originates with expressive conduct by the principal
toward a third party”). Thus, “[a] principal is subject to liability [for failure to
perform a nondelegable duty] when the principal owes a duty to protect a third
party and an agent to whom the principal has delegated performance of the
duty fails to fulfill it.” Id. at § 7.03 cmt. b (emphasis added).
      As applied here, Crosby (the principal) had a nondelegable duty to
provide adequate medical care to Randle; Crosby would be vicariously liable if
it had “delegated performance of the duty” to an agent, and the agent acted
negligently in carrying out the duty. But no such agency relationship was
formed here because Crosby did not manifest authority to TRMC or its
physicians, or otherwise express its assent that TRMC act on its behalf. Randle
does not argue that Crosby directed the ambulance to go to TRMC, and it is
not clear that Crosby had the power to do so. There is no evidence of a
relationship between Crosby and TRMC. Thus, Randle has not demonstrated
that Crosby, by calling 911, intended TRMC to act as its agent, and the district
court properly granted summary judgment on this issue.


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                                 No. 17-30963
      Randle contends that the district court’s holding is inconsistent with the
Supreme Court’s decision in Hopson and our decisions in De Centeno and
Sambula. But these cases do not support Randle’s position. In Hopson, the
Supreme Court held that a shipowner was liable for the negligence en route of
a taxi it had hired to fulfill its statutory duty to take two ill seamen to the
United States consulate. 383 U.S. at 264. Likewise, in De Centeno, we held a
shipowner vicariously liable for its chosen physician’s negligence in
misdiagnosing its seaman’s diabetes. 798 F.2d at 139-140. And in Sambula, we
found a shipowner vicariously liable for the malpractice of a general
practitioner it had negligently selected to treat its seaman’s eye injury. 405
F.2d at 300-01.
      These cases support the proposition that medical providers that a
shipowner selects “are deemed to be engaged in the ship’s business as ‘agents’
despite the fact that the practitioner may be an independent contractor or
completely unrelated to the ship.” Dise v. Express Marine, Inc., 476 F. App’x
514, 521 (4th Cir. 2011) (unpublished). But these cases do not override the
basic principles of agency law requiring that an agency relationship arise from
the principal’s act in selecting the agent, rather than its nondelegable duty.
And because Crosby did not select TRMC as its agent or otherwise express its
assent that TRMC would act on its behalf, there was no agency relationship
here. Crosby called 911. The 911 dispatcher sent Acadian to respond to the call.
After responding to the call, Acadian called LERN, the state’s emergency
response network. LERN instructed Acadian to take Randle to TRMC. There
is no evidence Crosby knew how this sequence of events would unfold, much
less that it was aware that LERN would direct Acadian to take Randle to
TRMC. Thus, TRMC was not Crosby’s agent.
      Therefore, we find that there is no genuine issue of material fact as to
whether Crosby is vicariously liable for the TRMC physicians’ alleged
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                                    No. 17-30963
malpractice, and we affirm the district court’s grant of summary judgment on
this issue. 4
                                          IV.
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       4 Randle also challenges the proper standard of care for his medical malpractice
claims. Because we find that Crosby is not vicariously liable for TRMC’s alleged medical
malpractice, we do not reach this issue.
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