     Case: 18-30776   Document: 00515094961    Page: 1   Date Filed: 08/28/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 18-30776               United States Court of Appeals
                                                                    Fifth Circuit

                                                                  FILED
                                                            August 28, 2019
WILFRED JONES,
                                                             Lyle W. Cayce
             Plaintiff–Appellant,                                 Clerk


v.

UNITED STATES OF AMERICA,

             Defendant–Appellee.


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


Before KING, SMITH, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      Wilfred Jones fell while making his duty rounds aboard the M/V CAPE
KNOX, injuring his arm. He alleges that grease on the deck caused him to slip.
He sued the ship’s owner—the United States—for negligence under the Jones
Act and unseaworthiness under general maritime law. The district court
granted summary judgment against Jones because he had no evidence that
grease caused his fall.
      On appeal, causation evidence remains scant. The Jones Act causation
standard is lower than at common law. But it still requires some evidence.
Plus, the district court had more than the usual summary-judgment discretion
since this would be a bench trial. We AFFIRM the judgment.
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                                 No. 18-30776
                                           I
      Jones was an engineer aboard the CAPE KNOX. The United States owns
the CAPE KNOX, and Keystone Shipping Company operates it. While making
his rounds as duty officer, Jones entered the emergency diesel generator room.
As he lifted his left foot over the hatch’s nine-inch threshold, his right foot
slipped. He fell against the carbon dioxide bottles inside the emergency diesel
generator room. He did not see what caused him to slip. It was after dark, but
Jones had a flashlight with him. He did not see grease on the deck or on his
shoes at the time. In a “Report of Illness” the next day, Jones wrote “as I was
completing duty round I lost balance and fell into the CO2 bottles in the EDG
room causing me to fall on my right forearm.”
      At his deposition, Jones testified he believed he slipped on grease on the
deck. The CAPE KNOX had cables above the weather decks that were greased
regularly. That grease often dropped onto the deck. An overhang covers the
deck outside the emergency diesel generator room, but grease can be tracked
or spread across a deck. The deck outside the emergency diesel generator room
had a nonskid coating. Jones admitted that it was only “some time after” his
fall that he realized he had slipped on grease. He looked into the matter after
realizing the seriousness of his injury.
      Jones sued the United States and Keystone. He asserted a negligence
claim under the Jones Act, 46 U.S.C. § 30104, via the Suits in Admiralty Act,
46 U.S.C. § 30903 (waiving sovereign immunity); an unseaworthiness claim
under general maritime law; and a claim for maintenance and cure under
general maritime law. The district court granted summary judgment to the
United States, and Jones appealed. On appeal he argues only the negligence
and unseaworthiness claims.




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                                       No. 18-30776
                                              II
       The summary-judgment standard marks our course. The everyday
standard is familiar but applies uniquely in bench-trial cases. So we lay it out
from harbor to anchorage.
                                              A
       “We review grants of summary judgment de novo.” 1 Summary judgment
is proper if “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” 2 “[A] party seeking summary
judgment always bears the initial responsibility of . . . demonstrat[ing] the
absence of a genuine issue of material fact.” 3 Once the moving party does so,
the nonmoving party must “go beyond the pleadings and . . . designate specific
facts showing that there is a genuine issue for trial.” 4 An issue is “genuine” if
“the evidence is such that a reasonable [factfinder] could return a verdict for
the nonmoving party.” 5 “A non-movant will not avoid summary judgment by
presenting      ‘speculation,      improbable       inferences,     or    unsubstantiated
assertions.’” 6 “Rule 56 ‘mandates the entry of summary judgment . . . against
a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial.’” 7
       Under 46 U.S.C. § 30903(b), an admiralty action against the United
States as shipowner must be tried to the court. We have held that “[i]n a non-



       1 Cal-Dive Int’l, Inc. v. Seabright Ins. Co., 627 F.3d 110, 113 (5th Cir. 2010).
       2 FED. R. CIV. P. 56(a).
       3 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).
       4 Id. at 324 (internal quotation marks omitted).
       5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
       6 Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d 670, 673 (5th Cir. 2015) (quoting

Likens v. Hartford Life & Accident Ins. Co., 688 F.3d 197, 202 (5th Cir. 2012)).
       7 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam)

(quoting Celotex, 477 U.S. at 322).
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                                     No. 18-30776
jury case, such as this one, ‘a district court has somewhat greater discretion to
consider what weight it will accord the evidence.’” 8 “When deciding a motion
for summary judgment prior to a bench trial, the district court ‘has the limited
discretion to decide that the same evidence, presented to him or her as a trier
of fact in a plenary trial, could not possibly lead to a different result.’” 9
                                            B
      Jones seeks to recover for his injuries based on employer negligence.
Under 46 U.S.C. § 30104, “[a] seaman injured in the course of employment . . .
may elect to bring a civil action at law . . . against the employer.” Here Jones’s
employer, Keystone, acted as agent for the shipowner, the United States. So
the United States is liable for Keystone’s negligence. 10
      Some elements of Jones Act negligence follow the common law. In
Gautreaux v. Scurlock Marine, Inc., we recognized that the employer’s duty of
care “retains the usual and familiar definition of ordinary prudence.” 11 But the
Jones Act causation standard is lighter than at common law. “A seaman is
entitled to recovery under the Jones Act . . . if his employer’s negligence is the
cause, in whole or in part, of his injury.” 12 The plaintiff can show causation if
“employer negligence played any part, even the slightest, in producing the
injury.” 13 This standard is identical to that of the Federal Employers’ Liability
Act, 45 U.S.C. § 51, so “FELA case law applies to Jones Act cases.” 14




      8  Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010) (quoting
In re Placid Oil Co., 932 F.2d 394, 397 (5th Cir. 1991)).
       9 Id. (quoting Placid Oil, 932 F.2d at 398).
       10 See Randle v. Crosby Tugs, L.L.C., 911 F.3d 280, 284 (5th Cir. 2018) (holding

shipowner is liable for injuries inflicted by its agents).
       11 107 F.3d 331, 335 (5th Cir. 1997) (en banc).
       12 Id.
       13 Id. (quoting Ferguson v. Moore–McCormack Lines, Inc., 352 U.S. 521, 523 (1957)).
       14 Beech v. Hercules Drilling Co., 691 F.3d 566, 570 (5th Cir. 2012).

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                                       No. 18-30776
       Jones contends there was grease in many places on the ship’s deck, and
this was the most likely cause of his fall. He also contends that the district
court prematurely decided witnesses’ credibility and incorrectly burdened him
with immediately investigating the accident. The United States responds that
Jones has no evidence for the causation element of his claim. Jones did not see
himself slip on grease or see grease on his shoes. And neither Jones nor any
other witness saw grease outside the emergency diesel generator room.
       We hold that Jones did not have enough causation evidence to survive
summary judgment. “[S]peculation” cannot defeat summary judgment on a
required element of the claim. 15 We of course follow the Supreme Court’s
instruction that “entirely circumstantial” evidence can prove a Jones Act
claim. 16 But grease elsewhere on the ship’s deck at various times is not
“probative” circumstantial evidence that can withstand summary judgment. 17
If Jones returned to the hatch that night or the next morning and saw grease
where he slipped, things might be different. 18 But Jones never saw grease in
the spot where he slipped, even when he later investigated his fall. As we
explained in Huffman v. Union Pacific Railroad, some evidence must complete
“[t]he path from worker injury to employer liability.” 19 Evidence that other
parts of the ship were slippery at other times does not do so. 20




       15  Lawrence, 808 F.3d at 673 (quoting Likens, 688 F.3d at 202).
       16  Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508 (1957) (reinstating plaintiff’s jury
verdict in FELA case).
        17 Huffman v. Union Pacific R.R., 675 F.3d 412, 425 (5th Cir. 2012) (granting judgment

as a matter of law on causation element of FELA claim).
        18 Cf. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989) (affirming

liability verdict based in part on testimony that deck was “slippery as ice”).
        19 675 F.3d at 426.
        20 Cf. Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir. 2001) (noting absence of

evidence that “oil or other slippery substances were present in the area of the doorway”).
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                                        No. 18-30776
       The causation standard for Jones Act negligence is “slight[],” well below
the common-law standard. 21 But it is not no standard at all. In Huffman we
reversed a jury verdict because the employee only had evidence that his work
could cause musculoskeletal disorders, not that it caused his particular injury
(osteoarthritis). 22
       And most contrary decisions are distinguishable. The Supreme Court
normally presumes that a jury should decide causation for Jones Act and FELA
claims. 23 But, by statute, admiralty actions against the United States as
shipowner are tried to the court. 24 And in bench-trial cases the district court
has greater discretion to grant summary judgment. The judge may “decide that
the same evidence, presented to him or her as a trier of fact in a plenary trial,
could not possibly lead to a different result.” 25 This resolves any remaining
doubt about the sufficiency of Jones’s summary-judgment evidence.
       Jones’s other arguments lack force. He says the district court
prematurely decided credibility because it relied on the United States’s
affidavits about the CAPE KNOX’s deck condition but not Jones’s expert
affidavit. But Jones’s expert simply cited Jones’s deposition for the fact that
“there was grease and oil on the deck” and concluded this most likely caused
Jones to slip. His opinion is conclusory on this point, and “unsubstantiated
assertions” cannot defeat summary judgment. 26 Choosing not to rely on this
evidence was not a credibility determination. Jones’s argument that negligence



       21   Gautreaux, 107 F.3d at 335 (quoting Ferguson, 352 U.S. at 523).
       22   675 F.3d at 426.
         23 E.g., Rogers, 352 U.S. at 507–10 (“Congress . . . was particularly concerned that the

issues whether there was employer fault and whether that fault played any part in the injury
. . . should be decided by the jury whenever fair-minded men could reach these conclusions
on the evidence.”).
         24 46 U.S.C. § 30903(b).
         25 Johnson, 597 F.3d at 676 (quoting Placid Oil, 932 F.2d at 398).
         26 Lawrence, 808 F.3d at 673 (quoting Likens, 688 F.3d at 202).

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                                        No. 18-30776
plaintiffs are not obligated to conduct a full immediate investigation also
misses the mark. The district court did not fault Jones’s investigation or lack
thereof. It simply held that no summary-judgment evidence, however it might
have been developed, reached the fact of whether Jones slipped on grease.
                                               C
       Jones also seeks to recover for unseaworthiness. “Unseaworthiness is a
claim under general maritime law ‘based on the vessel owner’s duty to ensure
that the vessel is reasonably fit to be at sea.’” 27 A deck slippery from grease
may render a vessel unseaworthy. 28 To recover, Jones must also prove “a
causal connection between his injury and the breach of duty that rendered the
vessel unseaworthy.” 29 “The standard of causation for unseaworthiness is a
more demanding one [than the Jones Act] and requires proof of proximate
cause.” 30 “[P]roximate cause” means 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.” 31
       Jones alleges that grease on the deck made the CAPE KNOX
unseaworthy. But to recover he must show that this condition caused his
injury. 32 He did not show this under the lighter Jones Act standard and cannot
do so here either. 33


       27 Beech, 691 F.3d at 570 (quoting Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438,
441 (2001)).
       28 See, e.g., Davis v. Hill Eng’g, Inc., 549 F.2d 314, 330 (5th Cir. 1977) (affirming

finding that slippery deck breached duty of seaworthiness), overruled on other grounds by
Gautreaux, 107 F.3d at 331.
       29 Jackson, 245 F.3d at 527.
       30 Chisholm v. Sabine Towing & Transp. Co., 679 F.2d 60, 62 (5th Cir. 1982).
       31 Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991) (quoting Johnson v. Offshore

Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 1988)).
       32 See Jackson, 245 F.3d at 527.
       33 See Chisholm, 679 F.2d at 62 (explaining that the unseaworthiness causation

standard is “more demanding”).
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                          No. 18-30776
                               III
 We AFFIRM the judgment.




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