[Cite as Shaffer v. A.W. Chesterton Co., 2019-Ohio-5022.]


STATE OF OHIO                    )                           IN THE COURT OF APPEALS
                                 )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

DIANE SHAFFER, Individually, and as                          C.A. No.   18CA011440
Executrix of the Estate of Edward Shaffer,
Deceased

        Appellant                                            APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
        v.                                                   COURT OF COMMON PLEAS
                                                             COUNTY OF LORAIN, OHIO
A.W. CHESTERTON CO., et al.                                  CASE No.   16CV190343

        Defendants

        And

UNITED STATES STEEL
CORPORATION

        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: December 9, 2019



        CALLAHAN, Presiding Judge.

        {¶1}    Appellant, Diane Shaffer, individually and as the executrix of the estate of

Edward Shaffer, appeals from the judgment of the Lorain County Common Pleas Court granting

summary judgment in favor of Appellee, United States Steel Corporation, as to the federal

claims. For the reasons set forth below, this Court reverses.

                                                            I.

        {¶2}    Between 1960 and 1961, Mr. Shaffer served as a merchant marine employed by

the Pittsburgh Steamship Division of United States Steel Corporation. Mr. Shaffer worked on

various vessels owned and operated by United States Steel Corporation (“U.S. Steel”) that sailed
                                                2


on the Great Lakes. Mr. Shaffer mainly worked in the engine room and the boiler room of the

vessels. His job duties included, but were not limited to, repairing, removing, replacing, and

cleaning up thermal insulation materials on pipes; removing and replacing packing and gasket

materials on steam wenches and valves; and removing and cleaning cement off old bricks and

sealing the cleaned bricks in the boiler. Mr. Shaffer alleged that he was exposed to asbestos

while working on U.S. Steel’s ships. In 2016, Mr. Shaffer was diagnosed with mesothelioma.

        {¶3}   The Shaffers filed a complaint against twenty-three entities alleging state claims

of asbestos-related personal injury, products liability, intentional tort, and loss of consortium.

The complaint also set forth federal claims under the Jones Act and unseaworthiness under

general maritime law against only some of the parties. The complaint was amended three times

to add and remove parties and to modify the claims.

        {¶4}   U.S. Steel filed a motion for summary judgment based upon the third amended

complaint addressing the federal claims. The Shaffers filed a brief in opposition to U.S. Steel’s

summary judgment motion, and U.S. Steel filed a reply brief. After conducting an oral hearing,

the trial court granted summary judgment in favor of U.S. Steel on the federal claims, but did not

include Civ.R. 54(B) certification on the order. Other parties and claims remained pending in the

case.

        {¶5}   The Shaffers filed a motion for reconsideration arguing that the trial court

improperly granted summary judgment on grounds not argued by U.S. Steel and the trial court

incorrectly applied state law to federal claims. U.S. Steel opposed the motion for reconsideration

arguing that the Shaffers had a meaningful opportunity to respond. The trial court denied the

motion for reconsideration.
                                                 3


       {¶6}    Mr. Shaffer died on June 29, 2018, while the case was still pending. Mrs. Shaffer

was appointed as the executrix of Mr. Shaffer’s estate, and the complaint was amended a fourth

time to reflect the appropriate plaintiff, to remove defendants, and to add a wrongful death claim.

       {¶7}    Thereafter, Mrs. Shaffer requested, and the trial court issued, an order adding

Civ.R. 54(B) certification to the judgment in favor of U.S. Steel as to the Shaffers’ federal

claims. Mrs. Shaffer, on behalf of herself and Mr. Shaffer’s estate, has timely appealed,1

asserting three assignments of error.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED BY APPLYING OHIO STATE LAW, RATHER
       THAN FEDERAL MARITIME LAW, TO [THE SHAFFERS’] JONES ACT
       AND UNSEAWORTHINESS CLAIMS IN ASSESSING THE SUFFICIENCY
       OF [THE SHAFFERS’] CAUSATION EVIDENCE.

       {¶8}    In the first assignment of error, Mrs. Shaffer argues that the trial court incorrectly

concluded “that Ohio substantive law * * * appl[ied] and that [the Ohio Supreme Court’s holding

in] Schwartz [v. Honeywell Internatl., Inc., 153 Ohio St.3d 175, 2018-Ohio-474] is controlling[]”

as to the federal maritime claims of unseaworthiness and the Jones Act. This Court agrees.

       {¶9}    This Court reviews an order granting summary judgment de novo. See Bonacorsi

v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24, citing Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). When a trial court elects to reconsider its interlocutory

summary judgment ruling, this Court applies the same standard of review that is applicable to

review a summary judgment decision. Carter v. Gerbec, 9th Dist. Summit No. 27712, 2016-

Ohio-4666, ¶ 39, quoting Hull v. Astro Shapes, Inc., 7th Dist. Mahoning No. 10 MA 26, 2011-


       1
         Based upon this Court’s May 28, 2019 Order, U.S. Steel’s renewed motion to dismiss
the appeal as being untimely filed is denied.
                                                  4


Ohio-1656, ¶ 28, quoting Klocinski v. Am. States Ins. Co., 6th Dist. Lucas No. L-03-1353, 2004-

Ohio-6657, ¶ 12. Accordingly, we apply a de novo review to the trial court’s reconsideration

decision of its grant of summary judgment. Carter at ¶ 39.

       {¶10} Summary judgment is proper under Civ.R. 56(C) when: (1) no genuine issue as

to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as

a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party,

reasonable minds can only reach one conclusion, and that conclusion is adverse to the

nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶11} Summary judgment consists of a burden-shifting framework. The movant bears

the initial burden of demonstrating the absence of genuine issues of material fact concerning the

essential elements of the nonmoving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292

(1996). Specifically, the moving party must support the motion by pointing to some evidence in

the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once the moving party satisfies this

burden, the nonmoving party has a “reciprocal burden” to “‘set forth specific facts showing that

there is a genuine issue for trial.’” Id. at 293, quoting Civ.R. 56(E).

       {¶12} Federal law permits a plaintiff to file a Jones Act claim and an unseaworthiness

claim in either state or federal court. See 28 U.S.C. 1333(1); Garrett v. Moore–McCormack Co.,

Inc., 317 U.S. 239, 245 (1942) (“[S]tate courts have concurrent jurisdiction with the federal

courts to try actions either under the Merchant Marine Act or in personam[.]”); Powell v.

Offshore Navigation, Inc., 644 F.2d 1063, 1066 (5th Cir.1981) (unseaworthiness is an in

personam claim that may be filed in state or federal court).

       {¶13} The Jones Act, which incorporates the Federal Employers’ Liability Act,

supersedes all state laws as to the liability for vessel owners for injuries to seamen and requires
                                                 5


uniform application of federal law. Lindgren v. United States, 281 U.S. 38, 46-47 (1930). Thus,

the United States Supreme Court has “held that the Jones Act is to have uniform application

throughout the country unaffected by ‘local views of common law rules.’” Garrett at 244,

quoting Panama RR. Co. v. Johnson, 264 U.S. 375, 392 (1924).

       {¶14} Similarly, an unseaworthiness claim is governed by federal maritime law as to all

substantive matters, but applies state law as to procedural matters. Lloyd v. Victory Carriers,

Inc., 402 Pa. 484, 486, 167 A.2d 689 (1960); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-

410 (1953). See Jones v. Erie RR. Co., 106 Ohio St. 408, 412 (1922) (“The substantive law

relates to rights and duties which give rise to a cause of action. ‘Procedure’ is the machinery for

carrying on the suit.”). However, the state procedural law will not be applied if it interferes with

the parties’ substantive rights. Lloyd at 486.

       {¶15} It has been recognized that state law may be applied to federal maritime cases

when there is no admiralty law on point. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir.1981). Also,

state law may be used to supplement federal maritime law, but only when there are no conflicts

between the two systems of law and the need for uniformity does not bar the state action. See

Pope & Talbot at 409-410; Powell, 644 F.2d at 1066, fn. 5; Am. Dredging Co. v. Miller, 510 U.S.

443, 447 (1994).

       {¶16} Accordingly, “[w]hen a state court hears an admiralty case, that court occupies

essentially the same position occupied by a federal court sitting in diversity: the state court must

apply substantive federal maritime law but follow state procedure.” Maritime Overseas Corp. v.

Ellis, 971 S.W.2d 402, 406 (Tex.1998) (Texas Supreme Court applied federal law to Jones Act

claim filed in state court). See Brown v. L.A. Wells Constr. Co., 143 Ohio St. 580, 586 (1944)

(Ohio Supreme Court held that it was “bound to follow the decisions of the Supreme Court of the
                                                6


United States with reference to [the] application and construction[]” of a Jones Act claim filed in

state court.); Garrett, 317 U.S. at 240, 245 (Jones Act claim filed in Pennsylvania state court

required application of federal substantive law). See also Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 627-628 (1959) (recognizing admiralty law applies to

unseaworthiness and negligence claims filed in state court); Am. Dredging Co. at 456 (state court

must apply uniform federal laws to Jones Act claims); Lloyd at 486 (recognizing an

unseaworthiness claim filed in Pennsylvania state court is governed by federal maritime law as to

substantive matters). Thus, in this matter, the state trial court was bound to apply substantive

federal maritime law as to both the Jones Act claim and the unseaworthiness claim.

       {¶17} U.S. Steel argues that the trial court’s application of the “Schwartz substantial

factor test” was irrelevant because “the substantial factor test for causation is appropriately

applied in maritime cases.” U.S. Steel is essentially arguing that the Ohio law supplemented and

did not contradict the federal maritime law. Based upon our analysis in assignments of error two

and three below, the Ohio law relied upon by the trial court did not supplement, but instead

contradicted the federal maritime law. Accordingly, the trial court erred in granting summary

judgment by applying Ohio law to the Jones Act and unseaworthiness claims.

       {¶18} In the alternative, U.S. Steel asserts that Mrs. Shaffer is precluded from asserting

as error the trial court’s reliance upon Ohio law because the Shaffers invited the error when they

cited Ohio law in their brief opposing summary judgment. “The invited-error doctrine is a well-

settled principle of law under which ‘[a] party will not be permitted to take advantage of an error

which he himself invited or induced.’” (Alteration sic.) Wojcik v. Pratt, 9th Dist. Summit No.

25609, 2011-Ohio-5012, ¶ 10, quoting Hal Artz Lincoln–Mercury, Inc. v. Ford Motor Co.,

Lincoln–Mercury Div., 28 Ohio St.3d 20 (1986), paragraph one of the syllabus.
                                                7


       {¶19} In response to U.S. Steel’s request to exclude the expert testimony of Dr.

Maddox, the Shaffers cited a number of federal court cases and one case from Ohio, Schwartz v.

Honeywell Internatl., Inc., 8th Dist. Cuyahoga No. 103377, 2016-Ohio-3175. While the Shaffers

cited an Ohio case, at no point did the Shaffers argue to the trial court that Ohio law governed as

to this issue to the exclusion of federal law. Rather, the Shaffers cited to this one Ohio case as

supplemental support to the federal law. As the Shaffers’ citation to one Ohio case did not

advocate for the application of Ohio law over federal law, they were not “‘“actively responsible”

for the trial court’s error’” in applying state law.2 See State v. Copeland, 9th Dist. Summit No.

27009, 2014-Ohio-5780, ¶ 8, quoting State v. Campbell, 90 Ohio St.3d 320, 324 (2000), quoting

State v. Kollar, 93 Ohio St. 89, 91 (1915). Accordingly, U.S. Steel’s invited-error argument is

not well-taken.

       {¶20} Mrs. Shaffer’s first assignment of error is sustained.

                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED BY APPLYING THE WRONG CAUSATION
       STANDARD TO [THE SHAFFERS’] JONES ACT CLAIM, AND BY
       CONCLUDING THAT, BASED ON THAT STANDARD, THERE WAS NO
       GENUINE ISSUE OF FACT AS TO THAT ELEMENT.

       {¶21} In the second assignment of error, Mrs. Shaffer argues that the trial court erred in

granting summary judgment as to the Jones Act claim because the trial court granted summary

judgment on a basis not argued and applied the wrong law. This Court agrees with both of these

arguments.


       2
          The Schwartz decision cited by the Shaffers is not the same Schwartz decision relied
upon and applied by the trial court. The Shaffers cited to the 2016 Schwartz decision from the
Eighth District Court of Appeals (2016-Ohio-3175), while the trial court applied the 2018
Schwartz decision by the Ohio Supreme Court (153 Ohio St.3d 175, 2018-Ohio-474). The
Shaffers could not cite to the Ohio Supreme Court decision because it was decided and released
after the briefing and the oral hearing in this matter.
                                                 8


       {¶22} As stated above, this Court will review de novo the trial court’s decision to grant

summary judgment and to deny the motion for reconsideration. See Bonacorsi, 95 Ohio St.3d

314, 2002-Ohio-2220, at ¶ 24, citing Doe, 90 Ohio St.3d at 390; Carter, 2016-Ohio-4666, at ¶

39.

       {¶23} The Jones Act, also known as the Merchant Marine Act of 1920, created a federal

negligence claim for seamen against their employer for injuries and death occurring during their

employment. Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995); Daughtry v. Jenny G. LLC, 703

Fed.Appx. 883, 886 (11th Cir.2017), quoting 46 U.S.C. 30104;3 Churchwell v. Bluegrass

Marine, Inc., 444 F.3d 898, 907 (6th Cir.2006). In consideration of the unique nature of and the

dangers arising from working on a vessel at sea, Congress enacted the Jones Act for the benefit

and protection of seamen. See Socony-Vacuum Oil Co., Inc. v. Smith, 305 U.S. 424, 430-431

(1939). To insure the protection of seamen, this remedial legislation is liberally construed. Id. at

431; Garrett, 317 U.S. at 248. Accord Daughenbaugh v. Bethlehem Steel Corp., 891 F.2d 1199,

1204 (6th Cir.1989).

       {¶24} To prevail on a Jones Act claim, a seaman must prove “that the employer was

negligent and that the employer’s negligence played any part, however slight, in producing the

injury to the seaman.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th

Cir.2001). See Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1463 (6th Cir.1993). “Proof

of negligence (duty and breach) is essential to recovery under the Jones Act.” Perkins at 598.

An employer’s actions are judged under the “ordinary prudence” standard.             Id.   It is the

employer’s duty “to provide a safe workplace for its employees.” Rannals v. Diamond Jo


       3
        On October 6, 2006, the Jones Act, 46 U.S.C. 688, was recodified as 46 U.S.C. 30104.
See 46 U.S.C. 30104; 2A Speiser, Krause & Gans, Am. Law of Torts, Section 9:100 (1983,
Updated Mar.2019).
                                                  9


Casino, 265 F.3d 442, 449 (6th Cir.2001). A seaman must establish that the employer breached

this duty “by neglecting to cure or eliminate obvious dangers of which the employer or its agents

knew or should have known” and that breach of duty caused the seaman’s injuries. Id.

       {¶25} Once negligence is established, the seaman need not establish proximate

causation.   Churchwell at 907.      Instead, the seaman needs to show that the “employer’s

negligence is the cause, in whole or in part,” of the seaman’s injuries. Perkins at 598, citing

Daughenbaugh at 1204. Accordingly, the Jones Act applies a relaxed or reduced causation

standard as between the employer’s negligence and the seaman’s injury that has been referred to

as a “featherweight” burden. Perkins at 598; Ferrara v. A.V. Fishing, Inc., 99 F.3d 449, 453 (1st

Cir.1996).

       Causation element was not raised by U.S. Steel

       {¶26} As to the Jones Act claim, Mrs. Shaffer contends that U.S. Steel did not move for

summary on the basis of causation. Nonetheless, the trial court granted U.S. Steel summary

judgment on that basis.

       {¶27} The Shaffers filed a motion for reconsideration on the basis that the trial court

granted summary judgment on grounds not argued by U.S. Steel. In denying the Shaffers’

motion for reconsideration, the trial court stated as follows:

       First, the undeniable objective of any court when ruling on a motion, or on any
       issue for that matter, is to get it right! To suggest that a trial court is constrained
       to reach a decision based only on the arguments raised by the parties would
       emasculate the court’s primary purpose, authority, and mandate to do justice.
       Should a trial court ignore a clear and obvious legal analysis that definitively
       resolves a matter simply because the parties failed to raise it? I think not. If
       nothing more, a court’s equity powers provide the discretion to consider issues
       and/or cases not raised by the parties.
                                                10


(Emphasis sic.) While we agree that the objective of a court is “to get it right[]” when ruling on

a motion, pursuit of that objective cannot be achieved at the expense of legal precedent.

(Emphasis deleted.)

       {¶28} The trial court’s position is contrary to long standing precedent from this Court,

our sister courts, and the Ohio Supreme Court regarding the scope of the trial court’s review

when ruling on a summary judgment motion.            “A party seeking summary judgment must

specifically delineate the basis upon which summary judgment is sought in order to allow the

opposing party a meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112

(1988), syllabus. Granting summary judgment on a basis not raised deprives the party opposing

summary judgment of any opportunity to respond. See Butler v. Harper, 9th Dist. Summit No.

21051, 2002-Ohio-5029, ¶ 28, citing DePugh v. Sladoje, 111 Ohio App.3d 675, 681-682 (2d

Dist.1996). Thus, as this Court has consistently held, it is error for a trial court to award

summary judgment on a ground not specified in the motion for summary judgment. Lehmier v.

W. Res. Chem. Corp., 9th Dist. Summit No. 28776, 2018-Ohio-3351, ¶ 48; Albrecht v. Marinas

Internatl. Consol., LP, 9th Dist. Summit No. 25246, 2010-Ohio-5732, ¶ 17-18; Butler at ¶ 28;

LeFever v. Aircraft Braking Sys. Corp., 9th Dist. Summit No. 16496, 1994 WL 232870, *2 (June

1, 1994).

       {¶29} Moreover, in State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 121

Ohio St.3d 507, 2009-Ohio-1523, the Ohio Supreme Court reached the same legal conclusion.

Id. at ¶ 27. In reaching its decision, the Ohio Supreme Court relied upon this Court’s decision in

Butler and other decisions from our sister districts. Id. Accordingly, the trial court’s belief that

it could resolve a summary judgment motion on grounds not asserted by the moving party is

contrary to law.
                                                11


       {¶30} Further, the trial court has misconstrued the scope of its equitable powers. “The

function of equity is to supplement the law where it is insufficient, moderating the unjust results

that would follow from the unbending application of the law.” Discover Bank v. Owens, 129

Ohio Misc.2d 71, 2004-Ohio-7333, ¶ 20, citing Salem Iron Co. v. Hyland, 74 Ohio St. 160, 167

(1906). While the trial court may have equitable powers to craft a remedy to prevent unfairness

or injustice, Owens at ¶ 21, those equitable powers do not extend to granting summary judgment

on a basis that was not presented to the trial court. The trial court improperly employed its

equitable powers in this case.

       {¶31} As to the Jones Act claim, U.S. Steel moved for summary judgment based upon

one argument: “[The Shaffers’] claim under the Jones Act fails because there [was] no evidence

that U.S. Steel breached a duty to protect against a foreseeable risk of harm.” U.S. Steel’s

argument relative to the Jones Act claim only cited law regarding the breach of duty element.

Similarly, it only pointed to the absence of evidence regarding its breach of duty to protect

against a foreseeable risk of harm. Thus, U.S. Steel limited its summary judgment argument as

to the Jones Act claim to the element of breach of duty.

       {¶32} On appeal, U.S. Steel suggests that it challenged the causation element in the

Jones Act claim when it pointed to the lack of evidence from Mr. Shaffer and his experts

regarding a connection between his exposure to asbestos and U.S. Steel’s ships. Upon review of

the summary judgment motion, U.S. Steel cited to Mr. Shaffer’s testimony and his experts’

opinions regarding the lack of asbestos exposure in support of its argument that there was no

testimony or opinion that “U.S. Steel breached its duty to protect [Mr. Shaffer] from a

foreseeable risk of harm” or that “U.S. Steel’s conduct was negligent.” U.S. Steel’s summary
                                                12


judgment briefs did not develop any argument or cite to any law connecting the lack of evidence

of asbestos exposure on U.S. Steel’s ships to the Jones Act causation standard.

       {¶33} Based upon the foregoing, U.S. Steel did not move for summary judgment on the

causation element in the Jones Act claim. Despite not moving for summary judgment on the

causation element, the trial court sua sponte examined that element and awarded summary

judgment to U.S. Steel on that basis alone. Accordingly, the trial court committed reversible

error in awarding summary judgment based upon grounds not argued by U.S. Steel in its motion.

State ex rel. Sawicki, 121 Ohio St.3d 507, 2009-Ohio-1523, at ¶ 27. See Lehmier, 2018-Ohio-

3351, at ¶ 48; Albrecht, 2010-Ohio-5732, at ¶ 18; Butler, 2002-Ohio-5029, at ¶ 28; LeFever,

1994 WL 232870, at *2.

       Wrong law applied

       {¶34} Even if U.S. Steel had asserted a causation challenge to the Jones Act claim, Mrs.

Shaffer argues that the trial court incorrectly applied state law and the wrong causation standard

to a Jones Act claim. We agree.

       {¶35} With respect to the Jones Act claim, the trial court “reject[ed] the ‘however slight’

standard contained in the Jones Act and instead, applie[d] the ‘substantial factor’ test required by

R.C. 2307.96, Lindstrom [v. A-C Prods. Liab. Trust, 424 F.3d 488 (6th Cir.2005)], Krik [v.

Exxon Mobil Corp., 870 F.3d 669 (7th Cir.2017)], and Schwartz[, 153 Ohio St.3d 175, 2018-

Ohio-474].” The trial court opined that the same standard of causation applied to both the Jones

Act claim and the unseaworthiness claim. In reaching these conclusions, the trial court applied

the wrong law and ignored well-established federal precedent that these are separate and distinct

claims which invoke different standards of causation. See Usner v. Luckenback Overseas Corp.,
                                                13


400 U.S. 494, 498 (1971). Accord Szymanski v. Columbia Transp. Co., 154 F.3d 591, 595 (6th

Cir.1998).

       {¶36} As discussed above, a Jones Act claim is governed by federal law and when a

Jones Act claim is filed in state court, the state court must apply federal substantive law and

follow state procedural law. Lindgren, 281 U.S. at 46-47; Ellis, 971 S.W.2d at 406; Brown, 143

Ohio St. at 586. See Am. Dredging Co., 510 U.S. at 456. While the Jones Act does not preempt

state procedural requirements, state laws such as R.C. 2307.96 cannot be construed to apply a

higher causation standard than is applicable to Jones Act claims. Compare In re GlobalSanteFe

Corp., 275 S.W.3d 477, 480, 489 (Tex.2008) (A Texas statute regarding personal injury actions

based upon injuries from silica and asbestos claims could not “impose a higher standard of proof

for causation than the federal standard applicable to Jones Act cases.”).

       {¶37} Unlike an unseaworthiness claim, the Jones Act does not require the seaman to

establish proximate cause. Churchwell, 444 F.3d at 904, 907. Instead, the Jones Act employs a

reduced standard of causation wherein the seaman must establish that the employer’s negligence

contributed in any way, however slight, in causing the seaman’s injuries. Miller at 1463;

Perkins, 246 F.3d at 598. See Jackson v. A-C Prod. Liab. Trust, 622 F.Supp.2d 641, 649

(N.D.Ohio 2009) (recognizing that the Sixth Circuit has held that the standard of causation in a

Jones Act claim is not proximate cause, but instead a relaxed standard).

       {¶38} However, relying upon R.C. 2307.96, Schwartz, Lindstrom, and Krik, the trial

court incorrectly rejected the lower causation standard and concluded that the higher substantial

factor causation standard applied to the Jones Act claim. See e.g. Criswell v. Atlantic Richfield

Co., 2015 Pa.Super 119, 115 A.3d 906, 912 (2015) (trial court incorrectly applied the substantial

factor causation test to a Jones Act claim). The trial court’s reliance upon an Ohio statute and
                                                  14


case law governing asbestos claims and applying the substantial factor causation test was in error

because that Ohio law contradicts the long-standing federal law applying the featherweight

standard to Jones Act claims. Further, the trial court’s application of the substantial factor

causation standard in Lindstrom and Krik was erroneous because those federal cases involved

maritime products liability claims and not Jones Act claims. Accordingly, the trial court applied

the wrong law to the Jones Act claim.

        {¶39} U.S. Steel concedes that the trial court held that the Shaffers could not satisfy the

substantial factor causation test. However, U.S. Steel argues that “in order to reach [the]

conclusion that [the] Shaffer[s] could not satisfy the substantial factor test, the trial court actually

applied the more lenient * * * ‘however slight’ standard of causation[]” as evidenced by the trial

court’s finding that there was “no evidence that [Mr.] Shaffer was exposed to asbestos in any

amount aboard the U.S. Steel Vessels.” (Emphasis sic.) Contrary to U.S. Steel’s interpretation

of the trial court’s order, the trial court did not make that specific finding. Instead, the trial court

stated in its summary judgment decision that Mr. Shaffer “arguably came into contact with

asbestos on the ships” and further referenced Mr. Shaffer’s “alleged exposure to asbestos” in the

reconsideration decision. Accordingly, U.S. Steel’s explanation is unfounded.

        {¶40} Conversely, U.S. Steel attempts to argue that the trial court did not rely upon

Schwartz and applied the correct causation standard to the Jones Act claim in its ruling on the

motion for reconsideration. U.S. Steel is mistaken. While the trial court did “[p]ut[] aside

Schwartz for a moment” and correctly identified the “however slight” causation test on page five

of the reconsideration decision, it then immediately followed those statements by referencing

Schwartz and applying the substantial factor analysis to the Jones Act claim. Additionally, the
                                                 15


trial court concluded on page eight that the Shaffers could not satisfy the “substantial factor” test

for either the Jones Act or the unseaworthiness claims.

       {¶41} In light of the foregoing, we conclude that the trial court’s grant of summary

judgment as to the Jones Act claim was erroneous. To this extent, Mrs. Shaffer’s second

assignment of error is well-taken.

       {¶42} In the alternative, Mrs. Shaffer argues that she has presented evidence as to the

however slight causation standard. Based upon this Court’s resolution of Mrs. Shaffer’s second

assignment of error, we decline to address Mrs. Shaffer’s alternative argument in her second

assignment of error as it is premature.

       {¶43} Mrs. Shaffer’s second assignment of error is sustained.

                               ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED BY APPLYING THE WRONG CAUSATION
       STANDARD TO [THE SHAFFERS’] UNSEAWORTHINESS CLAIM, AND
       BY CONCLUDING, BASED ON THAT STANDARD, THAT THERE WAS
       NO GENUINE ISSUE OF FACT AS TO THAT ELEMENT.

       {¶44} In the third assignment of error, Mrs. Shaffer asserts that the trial court erred in

granting summary judgment as to the unseaworthiness claim because it applied state law instead

of federal law and it applied the wrong causation standard. This Court agrees.

       {¶45} We continue to apply a de novo review to the trial court’s decision to grant

summary judgment and to deny the motion for reconsideration. See Bonacorsi, 95 Ohio St.3d

314, 2002-Ohio-2220, at ¶ 24, citing Doe, 90 Ohio St.3d at 390; Carter, 2016-Ohio-4666, at ¶

39.

       {¶46} Ship owners have an absolute duty to provide a seaworthy vessel. Mitchell v.

Trawler Racer, Inc., 362 U.S. 539, 549 (1960). This does not mean that the ship owner is

required to provide an accident-free ship. Id. at 550. Instead, the ship owner’s duty is to provide
                                                 16


a ship that is reasonably safe and fit for its intended purpose. Id. A breach of that duty results in

liability without fault. Perkins, 246 F.3d at 602. Thus, “[a] ship owner is strictly liable for

personal injuries caused by his or her vessel’s ‘unseaworthiness.’” Churchwell, 444 F.3d at 904,

citing Mitchell at 549.

       {¶47} To prevail on an unseaworthiness claim, a plaintiff must show that the vessel

upon which he was injured was unseaworthy, and that the vessel’s unseaworthy condition was

the proximate cause of his injuries. Churchwell at 904. “A vessel’s unseaworthiness is the

proximate cause of a plaintiff’s injury if it was a substantial factor in causing such injuries.” Id.,

citing Miller, 989 F.2d at 1464.        Stated differently, “‘[a] plaintiff must prove that the

unseaworthy condition played a substantial part in bringing about or actually causing the injury

and that the injury was either a direct result or a reasonably probable consequence of the

unseaworthiness.’” Miller at 1463, quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347,

1354 (5th Cir.1988).

       {¶48} In its summary judgment motion, U.S. Steel argued that Dr. Maddox’s report was

not evidence in support of the substantial factor causation test because his opinion was premised

upon the cumulative-exposure theory which was rejected by Lindstrom.                 The trial court

concluded “that Ohio substantive law * * * appl[ied] and that Schwartz [was] controlling[]” as to

the unseaworthiness claim. The trial court proceeded to apply Schwartz and R.C. 2307.96 to

analyze the substantial factor causation test. The trial court determined that its analysis “must

focus on the manner, proximity, frequency, and length factors attendant to [Mr. Shaffer’s]

employment with [U.S. Steel].” In addition to Schwartz, the trial court also cited Lindstrom and

Krik to reject the application of the cumulative-exposure theory in this case.
                                                 17


       {¶49} The trial court’s application of R.C. 2307.96, Schwartz, Lindstrom, and Krik is

incorrect for two reasons: 1) R.C. 2307.96 and Schwartz contradict the federal law set forth in

Miller, and 2) Schwartz, Lindstrom, and Krik involve asbestos product liability claims and not

unseaworthiness claims.

       {¶50} Schwartz involved an asbestos products liability claim filed in state court. See id.,

153 Ohio St.3d 175, 2018-Ohio-474, at ¶ 3-4. Relying upon R.C. 2307.96, Schwartz rejected the

cumulative-exposure theory for two reasons. Id. at ¶ 18-19. First, the cumulative-exposure

theory was “incompatible” with the statutory substantial factor causation test because the statute

focused on the individual defendant’s conduct as being the substantial factor in causing the

plaintiff’s asbestos related injuries while cumulative-exposure theory looked at the defendants in

the aggregate. Id. at ¶ 18. Second, the cumulative-exposure theory was “at odds” with the

mandatory factors set forth in R.C. 2307.96 that required “substantial causation be measured

based on the manner, proximity, length, and duration of exposure.” Id. at ¶ 19.

       {¶51} Miller, a Sixth Circuit decision, involved Jones Act and unseaworthiness claims

wherein the plaintiff was allegedly injured from exposure to asbestos and other toxic chemicals

on the defendant’s ships. Id., 989 F.2d at 1454. With respect to the unseaworthiness claim, the

Sixth Circuit held “that the correct standard for a finding of proximate cause [was] the

‘substantial factor’ test.” Id. at 1464. The Sixth Circuit rejected the defendant’s position that the

“proper proximate cause standard for unseaworthiness [was] a ‘frequency, regularity, intensity,

duration’ test.” Id. at 1463. The proximate cause test that was rejected by the Sixth Circuit in

Miller is similar to the “manner, proximity, length, and duration” test that was adopted by the

Ohio Supreme Court in Schwartz and applied by the trial court in this case. See Miller at 1463;

Schwartz at ¶ 19; R.C. 2307.96(B)(1)-(4).
                                                 18


       {¶52} While Ohio has embraced the statutory “manner, proximity, length, and duration”

test to establish the substantial factor causation in an asbestos products liability claim, the Sixth

Circuit has rejected that test as it applies to proximate cause in an unseaworthiness claim. See

Richard E. Kaye, Am. Law Prods. Liab. 3d, Section 122:36 (Updated Nov.2019). See also

Schwartz at ¶ 19; R.C. 2307.96(B)(1)-(4); Miller at 1463. Because the Ohio asbestos products

liability causation standard contained in Schwartz and R.C. 2307.96 contradicts the maritime

unseaworthiness causation standard decided by the Sixth Circuit in Miller, it was error for the

trial court to rely upon Ohio state law.

       {¶53} Additionally, the trial court erred in relying upon the federal circuit court

decisions in Lindstrom and Krik because those decisions did not address the causation standard

for an unseaworthiness claim. Instead, both Lindstrom and Krik analyzed the causation standard

for an asbestos product liability claim.4 Lindstrom, 424 F.3d at 491-492; Krik, 870 F.3d at 671-

673.

       {¶54} It has been recognized that maritime law incorporates products liability claims. E.

River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 865 (1986).               Accord

Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217, 221 (6th Cir.1969). However, a

maritime products liability claim is a separate cause of action from an unseaworthiness claim.

       {¶55} A maritime asbestos products liability claim, like any other asbestos products

liability claim, requires the plaintiff to “show, for each defendant, that (1) he was exposed to the

defendant’s product, and (2) the product was a substantial factor in causing the injury he


       4
         We recognize that in Lindstrom, the plaintiff also filed Jones Act and unseaworthiness
claims. Id. at 491. However, only the products liability claims were at issue in the appeal. Id.
Contrary to the trial court’s conclusion, the analysis in Lindstrom regarding the substantial
causation factor test and the cumulative-exposure theory did not extend to the Jones Act and
unseaworthiness claims.
                                                19


suffered.” Lindstrom at 492. The substantial factor causation test applied in maritime asbestos

products liability cases is applied separately to each defendant. Stark v. Armstrong World

Industries, Inc., 21 Fed.Appx. 371, 375 (6th Cir.2001); Lindstrom at 493. Based upon that

rationale Lindstrom and Krik rejected the cumulative-exposure theory. See Lindstrom at 493;

Krik at 675.

       {¶56} An unseaworthiness claim requires the plaintiff to show (1) “that the vessel was

unseaworthy in some way,” and (2) “that the unseaworthy condition proximately caused

Plaintiff’s injury.” Decker v. Oglebay Norton Marine Servs. Co., LLC, 517 F.Supp.2d 991, 995-

996 (N.D.Ohio 2007). In an unseaworthiness claim, proximate cause is also measured by a

substantial factor test.   Miller, 989 F.2d at 1464.     Miller explained that unseaworthiness

proximately causes an injury if it “played a substantial part in bringing about or actually causing

the injury and that the injury was either a direct result or a reasonably probable consequence of

the unseaworthiness.” Id. at 1463, quoting Johnson, 845 F.2d at 1354.

       {¶57} The Shaffers’ claim that it was the presence of asbestos on U.S. Steel’s ships that

made them unseaworthy did not convert their unseaworthiness claim into a maritime asbestos

products liability claim. See generally Lindstrom v. AC Prods. Liab. Trust, 264 F.Supp.2d 583,

587 (N.D.Ohio 2003) (The federal district court noted that “[t]he Miller decision, * * * addressed

liability claims and the standard of causation in a case against shipowners[,]” while “[t]he Stark

decision analyzed the causation standard under maritime law for product liability claims asserted

against manufacturers.”). As such, neither the “manner, proximity, length and duration” test nor

the cumulative-exposure theory was implicated in the Shaffers’ unseaworthiness claim.

Accordingly, we conclude that the trial court erred when it relied upon Lindstrom and Krik to
                                                 20


exclude evidence based upon the cumulative-exposure theory in the Shaffers’ unseaworthiness

claim.

         {¶58} In light of the foregoing, we conclude that the trial court’s grant of summary

judgment as to the unseaworthiness claim was erroneous. To this extent, Mrs. Shaffer’s third

assignment of error is well-taken.

         {¶59} In the alternative, Mrs. Shaffer argues that she has presented sufficient evidence

of the unseaworthiness causation standard. Based upon this Court’s resolution of Mrs. Shaffer’s

third assignment of error, we decline to address Mrs. Shaffer’s alternative argument in her third

assignment of error as it is premature.

         {¶60} The third assignment of error is sustained.

                                     U.S. Steel’s Alternative Argument

         {¶61} In the alternative, U.S. Steel argues that the judgment should be affirmed based

upon its other summary judgment arguments not considered by the trial court. However, this

Court has consistently refrained from addressing an appellee’s request to consider an alternative

argument that was argued to the trial court, but not decided by the trial court, as a basis to affirm

a summary judgment decision.          See McFarland v. Niekamp, Weisensell, Mutersbaugh &

Mastrantonio, LLP, 9th Dist. Summit No. 28462, 2017-Ohio-8394, ¶ 31, 37-38; Burr v.

Nationwide Mut. Ins. Co., 9th Dist. Lorain No. 12CA010231, 2013-Ohio-4406, ¶ 23; Neura v.

Goodwill Industries, 9th Dist. Medina No. 11CA0052-M, 2012-Ohio-2351, ¶ 19; Orvets v. Natl.

City Bank, Northeast, 131 Ohio App.3d 180, 192-194 (9th Dist.1999). Accordingly, we decline

to consider U.S. Steel’s alternative summary judgment arguments in the first instance.
                                                21


                                                III.

       {¶62} Mrs. Shaffer’s assignments of error are sustained. The judgment of the Lorain

County Common Pleas Court is reversed and the cause is remanded for further proceedings

consistent with this opinion.5

                                                                              Judgment reversed
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT

       5
          As this matter is being remanded for further proceedings, we note that the trial court
record was incomplete. Specifically, exhibits A – FF to the Shaffers’ brief in opposition were
missing from the file. In light of our disposition of this appeal, the missing exhibits did not
impact our ability to review this matter. However, these missing exhibits will be necessary for
further proceedings in the trial court.
                                          22




HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

CHARLES P. STERN and GIBBS C. HENDERSON, Attorneys at Law, for Appellant.

JOSH P. GRUNDA, Attorney at Law, for Appellant.

THOMAS I. MICHALS, MATTHEW M. MENDOZA, JENNIFER WHITT, and LINDSEY E.
SACHER, Attorneys at Law, for Appellee.
