     Case: 11-30415   Document: 00511956548      Page: 1   Date Filed: 08/14/2012




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

                                                                    FILED
                                                                  August 14, 2012
                                   No. 11-30415                    Lyle W. Cayce
                                                                        Clerk


AMANDA BEECH, individually and as tutrix, guardian of her minor child, Jax
Delton Beech,

                                              Plaintiff-Appellee Cross-Appellant,

v.

HERCULES DRILLING COMPANY, L.L.C.,

                                              Defendant-Appellant Cross-Appellee.




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


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
        This case requires us to decide whether vicarious liability principles under
the Jones Act allow a seaman’s wife to recover from her husband’s employer for
the bizarre events that led to his tragic and untimely death. Keith Beech died
after his co-worker, Michael Cosenza, accidentally shot him aboard a Hercules-
owned vessel. The district court determined that Cosenza was acting in the
course and scope of his employment at the time of the accident. Because we
conclude that Cosenza was not acting in the course of his employment when he
accidentally shot Beech, we REVERSE.
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                                  No. 11-30415

                                        I.
      The following facts are undisputed. Keith Beech (“Beech”) was a crane
operator working aboard a jack-up drilling rig that his employer, Hercules,
owned. Michael Cosenza (“Cosenza”) worked as a driller aboard the same vessel.
When Cosenza came aboard, he accidentally brought a firearm with him, which
violated Hercules’ policy prohibiting weapons on the vessel. Cosenza and Beech
were both aware of Hercules’ policy against firearms. After discovering the
firearm in some of his laundry, Cosenza did not tell anyone that he had
inadvertently brought it aboard. Instead, he kept it hidden in his locker on the
rig. This failure to report the firearm constituted an additional violation of
Hercules’ safety policy.
      On December 13, 2009, Cosenza was assigned to work a night shift and
was the only crewman on duty. Cosenza’s duties that night were to monitor the
rig’s generator, to check certain equipment, and to report any suspicious activity
or problems. Hercules encouraged Cosenza to stay in the break room while he
performed these duties, watching television and commiserating with fellow crew
members. Cosenza could simultaneously watch television and monitor the
generator because if something were to go wrong with the generator, the
television would turn off.
      Beech was not on duty but was aboard the vessel and subject to the call of
duty. Both men were in the rig’s television room, watching television and
chatting. Beech mentioned that he was thinking about purchasing a small
firearm, and Cosenza, thinking Beech might be interested in seeing his firearm,
left the break room and went to his locker to retrieve it. Upon returning,
Cosenza showed the firearm to Beech, who inspected it but did not handle it. As
Cosenza sat back down in the TV room, his arm bumped a part of the couch, and
the firearm accidentally discharged, mortally wounding Beech.
      Mrs. Beech subsequently brought a wrongful death action against
Hercules under the Jones Act. After a bench trial, the district court granted

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judgment in favor of Mrs. Beech, individually, in the amount of $876,997.00 and
as tutrix, guardian of her minor child, Jax Delton Beech, in the amount of
$317,332.00, for a total recovery of $1,194,329.00. Beech v. Hercules Drilling Co.,
786 F. Supp. 2d 1140, 1150-51 (E.D. La. 2011). Hercules contends on appeal that
Beech and Cosenza were not acting in the course of their employment at the
time of the accident and that the district court’s judgment in favor of Mrs. Beech
must, for that reason, be reversed. Mrs. Beech cross-appeals, arguing that the
district court failed to include loss of fringe benefits damages in its damages
award.
                                        II.
      The parties dispute what standard of review should apply to the course of
employment issue. Hercules contends that, because the facts relevant to the
course of employment issue are all undisputed, only the legal determination of
whether those facts meet the course of employment standard remains for us on
appeal. Hercules argues that we should review this purely legal question de
novo. Mrs. Beech, on the other hand, cites Fifth Circuit precedent for the
proposition that “[w]hether or not an employee acted within the scope of his
employment is a question for the factfinder,” warranting clear error review. See
Smollen v. United States, 1995 WL 29214, at *4 (5th Cir. Jan. 11, 1995) (per
curiam) (unpublished but precedential under Fifth Circuit Rule 47.5.3) (“Where
there is a fact issue as to the ‘course and scope’ of an employee in performing a
particular task which may give rise to an issue of liability upon the part of the
master, that issue should be submitted for the jury’s determination.”) (quoting
Ryder Truck Rentals v. Latham, 593 S.W.2d 334, 336-37 (Tex. Ct. App. 1979)).
Hercules counters that Smollen and Ryder Truck Rentals do not stand for the
proposition that we always review course of employment issues for clear error.
Instead, those cases both emphasize that “where there is a fact issue” as to scope
of employment, clear error applies. Because there are no such fact issues in this



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case, Hercules argues that de novo review is appropriate, Smollen and Ryder
Truck Rentals notwithstanding.
         We resolved this question in Hussaini v. Marine Transp. Lines, Inc., a
persuasive, though unpublished, opinion:
         Determinations of scope of employment, and, thus, vicarious
         liability, are most accurately characterized as mixed questions of
         law and fact because they involve legal conclusions based upon
         factual analysis. Mixed questions should be reviewed under the
         clearly erroneous standard if factual questions predominate, and de
         novo if the legal questions predominate.
         When, however, the district court has plainly identified its findings
         of fact, separately and distinctly from its legal conclusions, we may
         properly proceed with de novo review of the legal conclusions, even
         if the underlying facts are in dispute. This does not encroach upon
         the district court’s factfinding function, but rather fulfills our
         obligation to review the interpretation and application of the law. In
         such instances, the “mixed” questions of law and fact have been
         “unmixed” by the district court, enabling us to review the factual
         components under the clearly erroneous standard, and the legal
         components de novo.

158 F.3d 584 (5th Cir. 1998) (unpublished) (citations omitted). De novo review
is even more clearly appropriate here, where all of the facts are settled and
undisputed, leaving us only with the familiar task of applying the law to the
facts.
                                          III.
                                           1.
         We review the Jones Act briefly before proceeding to the merits. Prior to
its enactment, seamen could not recover against their employers for either the
employer’s own negligence or the negligence of a fellow crew member. The
Osceola, 189 U.S. 158 (1903) (overruled by the Jones Act, now codified at 46
U.S.C. § 30104). Instead, seamen were limited to compensation under the
general maritime law, which included only two theories of recovery, both of
which are still available today: unseaworthiness, and maintenance and cure. Id.


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at 175-76. 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.” Lewis
v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001) (citing Mitchell v.
Trawler Racer, Inc., 362 U.S. 539, 550 (1960)). “A claim for maintenance and
cure concerns the vessel owner’s obligation to provide food, lodging, and medical
services to a seaman injured while serving the ship.” Id. (citing Calmar S.S.
Corp. v. Taylor, 303 U.S. 525, 527-28 (1938)).
       In 1920, Congress enacted the Jones Act to create “a negligence cause of
action for ship personnel against their employers.” Withhart v. Otto Candies,
L.L.C., 431 F.3d 840, 843 (5th Cir. 2005) (citations omitted). It provides:
       A seaman injured in the course of employment or, if the seaman dies
       from the injury, the personal representative of the seaman may
       elect to bring a civil action at law, with the right of trial by jury,
       against the employer. Laws of the United States regulating recovery
       for personal injury to, or death of, a railway employee apply to an
       action under this section.

46 U.S.C. § 30104. By incorporating “[l]aws of the United States regulating
recovery for personal injury to, or death of, a railway employee,” the Jones Act
extends the protections of the Federal Employer’s Liability Act (“FELA”)1 to
seamen, and thus FELA case law applies to Jones Act cases. Id.; see also
Withhart, 431 F.3d at 843 (“In passing the Jones Act, Congress did not
specifically enumerate the rights of seamen, but extended to them the same
rights granted to railway employees by FELA.”) (citing Cox v. Roth, 348 U.S.
207, 208 (1955)).
       The Supreme Court has consistently held that the Jones Act is “‘entitled
to a liberal construction to accomplish its beneficent purposes,’” which is to
“provide for ‘the welfare of seamen.’” See, e.g., Cox, 348 U.S. at 210 (quoting

1
  FELA provides, in relevant part, that “[e]very common carrier by railroad . . . shall be liable
in damages to any person suffering injury while he is employed by such carrier in such
commerce” for “such injury or death resulting in whole or in part from the negligence” of the
railroad carrier. 45 U.S.C. § 51.

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Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 790 (1949)). Liberal
construction is necessary because of the seaman’s broad and perilous job duties:
      Unlike men employed in service on land, the seaman, when he
      finishes his day’s work, is neither relieved of obligations to his
      employer nor wholly free to dispose of his leisure as he sees fit. Of
      necessity, during the voyage he must eat, drink, lodge and divert
      himself within the confines of the ship. In short, during the period
      of his tenure the vessel is not merely his place of employment; it is
      the frame-work of his existence.

Aguilar v. Standard Oil Co., 318 U.S. 724, 731-32 (1943); see also Consolidated
Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994) (“We have liberally construed
FELA to further Congress’ remedial goal.”); Harden v. Gordon, 11 F. Cas. 480,
485, 483 (No. 6,047) (C.C.D. Me. 1823) (Story, J.) (explaining that seamen “are
emphatically the wards of the admiralty” because they “are by the peculiarity of
their lives liable to sudden sickness from change of climate, exposure to perils,
and exhausting labor”).
      This liberal construction has resulted in broader employer liability under
the Jones Act and FELA than would have been possible under the common law:
      In order to further [the Acts’] humanitarian purposes, Congress did
      away with several common-law tort defenses that had effectively
      barred recovery by injured workers. . . . [The Acts] abolished the
      fellow servant rule, rejected the doctrine of contributory negligence
      in favor of that of comparative negligence, and prohibited employers
      from exempting themselves from [the Acts] through contract; a 1939
      amendment abolished the assumption of the risk defense.

Gottshall, 512 U.S. at 542-43. Yet the Supreme Court has been equally adamant
that liberal construction “does not mean that [FELA or the Jones Act are]
workers’ compensation statute[s].” Id. at 543. Neither makes “the employer the
insurer of the safety of his employees while they are on duty. The basis of his
liability is his negligence, not the fact that injuries occur.” Id. at 543; see also
Morant v. Long Island R.R., 66 F.3d 518, 522 (2d Cir. 1995) (citing Gottshall, 512
U.S. at 543). Accordingly, the common law’s limits on employer liability are


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entitled to great weight in FELA and Jones Act cases “subject to such
qualifications as Congress has imported into those terms.” Id.; see also id. at 544
(“Only to the extent of these explicit statutory alterations is FELA an avowed
departure from the rules of the common law.”) (internal quotation marks
omitted); Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338-39 (5th Cir.
1997) (citing Gottshall, 512 U.S. at 542-44) (holding that common law principles
are entitled to great weight in Jones Act cases).
      One of those common law principles that still carries “great weight” in the
FELA and Jones Act context is that an employer may be vicariously liable for its
employee’s negligence under the doctrine of respondeat superior so long as the
negligence occurred “in the course of employment.” See, e.g., Landry v. Oceanic
Contractors, Inc., 731 F.2d 299, 303 (5th Cir. 1984); Sobieski v. Ispat Island, Inc.,
413 F.3d 628, 632 (7th Cir. 2005) (“[V]icarious liability may extend to FELA or
Jones Act employers under the traditional doctrine of respondeat superior. Well-
established precedent applies the common law principle that an employer may
be vicariously liable for its employee’s negligence (or intentional tort) committed
within the course or scope of employment—that is, committed while furthering
the employer’s (or the ship’s) business.”) (citations omitted); but see Baker v.
Baltimore & Ohio R.R. Co., 502 F.2d 638, 641 (holding that “[u]nder the FELA
a defendant’s liability for the negligence of its servants is not restricted by the
common law doctrine of respondeat superior”). This case turns on the meaning
of the phrase “in the course of employment” and more specifically on whether
Cosenza and Beech were acting in the course of their employment when Cosenza
accidentally shot Beech.
                                         2.
      Proceeding to the merits of this case, the district court explained, and
neither party disputes, that in order to hold an employer vicariously liable under
the Jones Act for one employee’s injury caused by the negligence of a co-
employee, a plaintiff must show that the injured employee and the employee who

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caused the harm were both acting in the course of their employment at the time
of the accident. It concluded that Beech was acting in the course and scope of his
employment because he was aboard the vessel and subject to the call of duty at
the time he was shot. It also concluded that Cosenza was acting in the course of
his employment, reasoning as follows:
      [A]t the time Mr. Cosenza’s handgun discharged and injured Mr.
      Beech, Mr. Cosenza abandoned his purpose of showing off the gun
      and was in the process of sitting down on the couch to watch
      television. . . . In fact, Hercules encouraged Mr. Cosenza to watch
      television between rounds, while on-duty. Conversation with other
      crew members, even when touching upon personal matters, was
      therefore well within the permissible boundaries of his job activity
      that night. Thus, the Court finds that at the critical moment—when
      the gun discharged—Mr. Cosenza was acting in the course and
      scope of his employment.

      Hercules contends that because Cosenza’s decision to show off his firearm
did not further Hercules’ business interests, and because it was in no way
related to his job duties, he was not acting within the course and scope of his
employment at the time of the accident. Moreover, Hercules argues that if this
factual scenario does not bring a seaman outside the course and scope of his
employment, then no scenario could, meaning the Jones Act would effectively
place employers under strict liability.
      Mrs. Beech counters that “[a]s strange as it sounds, Mr. Cosenza’s duties
on December 13, 2009 included sitting around the T.V. room doing nothing more
than monitoring the conditions on the rig.” Mrs. Beech takes the position that
at the precise moment the firearm fired, Cosenza was doing just that, and
therefore, he was acting in the course and scope of his employment.
                                          IV.
                                          1.
      The parties and the district court cite potentially conflicting standards for
when an employee’s conduct falls within the course and scope of his employment.


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In Stoot v. D & D Catering Serv., Inc., we held that an employer is only liable for
the wrongful acts committed by its employee when the employee’s tortious
conduct is in furtherance of the employer’s business. 807 F.2d 1197, 1199 (5th
Cir. 1987)). Joseph Stoot was employed as a seaman aboard the MR. DAVE, a
jack-up drilling rig. Id. at 1198. His unique job duties prevented him from eating
his meals during regular hours, which upset Eloise Porter, the chief cook aboard
the vessel. Id. This disagreement eventually erupted into a violent altercation,
culminating in Stoot insulting Porter, who responded by slashing several of
Stoot’s fingers off with a large knife. Id. The question was whether Porter was
acting in the course of her employment at the time of Stoot’s injuries. Id.2 We
explained that the course of employment issue “must be analyzed within the
framework of established agency principles.” Id. at 1199-1200. We quoted
Section 245 of the Restatement (Second) of Agency as follows:
       A master is subject to liability for the intended tortious harm by a
       servant to the person or things of another by an act done in
       connection with the servant’s employment, although the act was
       unauthorized, if the act was not unexpectable in view of the duties
       of the servant.

Id. at 1200. We went on to quote Comment C of Section 245 as well, which
provides:
       The master, however, is relieved from liability under the rule stated
       in this Section if the servant has no intent to act on his master’s
       behalf, although the events from which the tortious act follows arise
       while the servant is acting in the employment and the servant
       becomes angry because of them.
Id. (also citing Offshore Logistics v. Astro-Marine, Inc., 482 F. Supp. 1119, 1121
(E.D. La. 1980)).
       Applying this standard, we explained that “Porter was motivated to cut
Stoot from anger and revenge following Stoot’s personal profane statement to


       2
         Stoot never mentions the Jones Act, but neither party contends that it is inapplicable
here for that reason.

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her rather than for reasons related to her employment.” Id. We held that this
finding “supports the district court’s conclusion that Porter’s action was outside
the course and scope of her employment.” Id. (citations omitted).
      Mrs. Beech argues that Stoot does not apply here because that case
involved an intentional tort, and Cosenza’s actions in this case were negligent,
not intentional. She cites no case, however, that has held that different
standards apply to cases depending on whether the underlying injury was
caused intentionally or negligently. Indeed, we have never endorsed such a rule,
and the Seventh Circuit has explicitly rejected it. See Sobieski, 413 F.3d at 631
n.3 & 632 (holding that the same course and scope of employment standard
applies under the Jones Act whether the underlying injury-causing-conduct was
negligent or intentional).
      The Sixth Circuit, by contrast, has held that it was unnecessary to show
that the negligent employee was acting in furtherance of the employer’s business
interests because course and scope of employment “includes not only actual
service, but also those things necessarily incident thereto.” Baker v. Baltimore
& Ohio R.R. Co., 502 F.2d 638, 641-42 (6th Cir. 1974) (citations omitted). In
Baker, a rail car inspector was on his lunch break when a coworker picked up a
coat, causing a pistol to fall out of the coat’s pocket. 502 F.2d, at 640. The pistol
discharged when it hit the ground, wounding the employee. Id. The employee
filed suit under FELA, but the employer argued that it was not liable for the co-
worker’s negligence because the negligence did not occur in the course of his
employment. Id. The Sixth Circuit held that because the course of employment
includes not only actual service but also “those things necessarily incident
thereto,” the employee was within the course of employment. Id. at 642. It went
on to hold that “[u]nder the FELA a defendant’s liability for the negligence of its
servants is not restricted by the common law doctrine of respondeat superior,”
and that “[i]t is unnecessary to show that [employees] were negligent while
performing a particular act ‘in furtherance of their master’s business,’ as this

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common law term has been interpreted.” Id. at 641 (citations omitted). Mrs.
Beech urges us to apply Baker’s standard.
      Hercules points out that one of our sister circuits has criticized Baker’s
reasoning. In Sobieski v. Ispat Island, Inc., one crewman injured another by
performing unrequested and unexpected neck tractioning on him. 413 F.3d 628,
629-30 (7th Cir. 2005). The injured seaman sued his employer under the Jones
Act, claiming that the employer was vicariously liable for the amateur
chiropractor’s handy-work. Id. at 632. He argued that the court should “extend
liability to the [Jones Act] employer for all negligent acts by employees which
occur on the vessel.” Id. In support of his argument, the injured seaman cited
Baker’s very broad standard and its rejection of the application of the common
law doctrine of respondeat superior to Jones Act claims. Id. at 632-33.
      The Seventh Circuit rejected the injured seaman’s argument, explaining
that to prove that the negligent employee’s actions to have been in the course of
employment, the injured seaman “must show that the employee’s tort was
committed in furtherance of the employer’s business.” Id. at 632 (citations
omitted). As for Baker, the Seventh Circuit was “unpersuaded . . . by [its]
analysis.” Id. at 633. The Sobieski court explained that Baker “read FELA’s
statutory language and liberal purpose too broadly,” and held that “plaintiffs
must . . . show that [the coworker] acted in furtherance of the ship’s business.”
Id. Fleshing out that standard, the court explained that “regardless of how
individual courts have stated the tests, in order for an activity to qualify as being
within the scope of employment, it must be a necessary incident of the day’s
work or be essential to the performance of the work.” Id. at 634 (internal
quotation marks omitted). The co-worker’s “tractioning of necks clearly [fell]
within that category of acts commonly held to be outside the scope of
employment—those undertaken by an employee for a private purpose and
having no causal relationship with his employment.” Id. at 634-35 (internal
quotation marks omitted); see also Lancaster v. Norfolk & W. Ry. Co., 773 F.2d

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807, 813 (7th Cir. 1985) (Posner, J.) (criticizing Baker and deploying the business
interest standard to determine course of employment under FELA).
       It is unclear what test the district court applied. It discussed the Stoot test
but distinguished Stoot because the tort there was intentional. It also discussed
the Baker standard but distinguished Baker because the Baker employee’s
conduct did not violate a company safety policy. Finally, the district court briefly
alluded to a third standard, namely that “an employee whose wrongful, negligent
conduct results in accidental injury to a fellow employee still acts in the course
and scope of his employment for purposes of vicarious liability, unless the act is
motivated by some purpose inimical to the interests of the employer or co-
worker.” The district court cited no authority for this last standard, and we are
aware of none.
       Although Hercules is correct that we adopted the business interests test
in Stoot, the district court explained that we have also applied a standard
similar to Baker’s in our prior cases. See, e.g., Fowler v. Seaboard Coastline R.R.
Co., 638 F.2d 17, 20 (5th Cir. 1981) (holding that “[s]cope of employment has
been interpreted to encompass acts incidental to the employment as well as the
actual work”) (citations omitted). Today we make clear that we agree with the
Seventh Circuit that regardless of whether the underlying injurious conduct was
negligent or intentional, the test for whether a Jones Act employee was acting
within the course and scope of his employment is whether his actions at the time
of the injury were in furtherance of his employer’s business interests.3 For the


       3
         While no other circuit has relied on Baker’s course of employment standard, several
have applied standards similar to the one articulated by the Seventh Circuit in Sobieski. See,
e.g., Galosse v. Long Island R.R. Co., 878 F.2d 80, 82-83 (2d Cir. 1989) (citing Copeland v. St.
Louis)San Francisco Ry. Co., 291 F.2d 119, 120 (10th Cir. 1961) and Hoyt v. Thompson, 174
F.2d 284, 285 (7th Cir. 1949)) (holding that “under FELA [and the Jones Act], employers are
liable for the negligence of their employees only if it occurs within the scope of employment,
and no liability attaches when an employee ‘acts entirely of his own impulse, for his own
amusement, and for no purpose of or benefit to the defendant employer’”); Lowden v. Atchison
Topeka and Santa Fe Ry., 937 F.2d 491, 492 (9th Cir. 1991) (agreeing with the district court
that whether employee acted “within the scope of his employment” depended on the employee’s

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reasons discussed below, we conclude that Cosenza was not acting within the
course and scope of his employment when he accidentally shot Beech. In light of
that holding, we need not reach the issue of whether Beech was acting within
the course and scope of his employment, because even if he was, Mrs. Beech
could not recover from Hercules under the Jones Act.
                                              2.
       Applying the business interests test, the record indicates that Hercules’
business interests with regard to Cosenza that night were simple. It only needed
him to monitor the generator, check certain equipment, and report any
suspicious activities or problems. Hercules’ detailed safety policies also
memorialize the common sense notion that it had a business interest in ensuring
its workers’ safety, particularly with regard to firearms.
       Whatever test it applied, the district court ultimately found that Cosenza
was acting in the course of his employment at the time of the accident. It stated
in its order:
       [T]he most credible evidence supports the conclusion that at the
       time Mr. Cosenza’s handgun discharged and injured Mr. Beech, Mr.


“motivation and whether [his] act furthered the railroad’s business”); Taylor v. Burlington N.
R.R. Co., 787 F.2d 1309, 1312-13 (9th Cir. 1986) (Kennedy, J.) (citations omitted) (holding that
“under the theory of respondeat superior,” a Jones Act or FELA “employer is liable for the
intentional assaults committed by its employee in furtherance of the employer’s business”);
Feichko v. Denver & Rio Grande W. R.R. Co., 213 F.3d 586, 592-93 (10th Cir. 2000) (holding
that an employee “was not acting within the scope of his employment” for FELA purposes
because his actions at the time of his injury were not “in furtherance of the railroad’s
interests” and were instead “a purely private activity . . . which provided no benefit to his
employer”); Copeland v. St. Louis)San Francisco Ry. Co., 291 F.2d 119, 120-21 (10th Cir. 1961)
(holding that an employer is only liable under FELA where the employee’s acts are “in
furtherance of the master’s business,” not where they are “entirely upon [the employee’s] own
impulse, for his own amusement, and for no purpose of or benefit to the defendant employer”);
Brooks v. Washington Terminal Co., 593 F.2d 1285, 1288 (D.C. Cir. 1979) (citing Jamison v.
Encarnacion, 281 U.S. 635 (1930)) (holding that “an assault committed by an employee in the
course of the discharge of his duties and in furtherance of the work of the employer’s business
can serve as the basis for liability under [FELA]”); Slaughter v. Atl. Coast Line R.R. Co., 302
F.2d 912, 915 (D.C. Cir. 1962) (citing Jamison, 281 U.S. 635) (holding that “no recovery may
be had unless the tort was committed in the course of the discharge of [the employee’s] duties
and in the furtherance of the employer’s business”).

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      Cosenza had abandoned his purpose of showing off the gun and was
      in the process of sitting down on the couch to watch television.
      Because of the potential dangers associated with having a single
      crew member on duty at night, Mr. Cosenza was cautioned by
      Hercules not to do too much. In fact, Hercules encouraged Mr.
      Cosenza to watch television between rounds, while on-duty.
      Conversation with other crew members, even when touching upon
      personal matters, was therefore well within the permissible
      boundaries of his job activity that night. Thus, the Court finds that
      at the critical moment—when the gun discharged—Mr. Cosenza was
      acting in the course of his employment.

      There are at least two problems with the district court’s reasoning. First,
it assumes that because Cosenza could monitor the generator (by watching
television) while holding a loaded firearm, he was acting consistently with his
job duties and was therefore within the course and scope of his employment.
That assumption overlooks Hercules’ vital business interest in Cosenza’s other
job duties that night, most notably his duty to “report suspicious activities or
problems.” A person with a loaded weapon sitting in the vessel’s break room
would undoubtedly have constituted precisely the sort of suspicious activity or
problem that Hercules was relying on Cosenza to report. Instead of reporting it,
he created it, and disaster struck. Thus, the district court’s reasoning that
Cosenza’s job duties that night were so broad and relaxed that even handling a
loaded firearm in the break room was consistent with them fails.
      Second, the district court’s emphasis on the distinction between “showing
off the firearm” and “sitting down on the couch” implies that it would have
concluded that Cosenza was outside the course of employment had the firearm
discharged while he was still “showing it off.” That distinction is irrelevant,
though, because neither showing off a loaded weapon nor sitting down on the
couch while holding one furthered Hercules’ business interests. Indeed both were
inimical to it.
      Mrs. Beech argues that Cosenza’s extraordinary breeches of Hercules’
safety policies are irrelevant to the course of employment analysis, but that

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                                  No. 11-30415

cannot be right. It may be true that not every violation of safety policy
automatically casts an employee outside the course of his employment. See, e.g.,
Frederick v. Swift Transp. Co., 616 F.3d 1074, 1079-80 (10th Cir. 2010) (holding
that a truck driver who violated safety policy by ingesting methamphetamine
was nevertheless acting within the course and scope of her employment under
New Mexico law when she drove the company’s truck on her assigned route
under the employer’s directions, attempting to meet the employer’s deadlines,
but emphasizing that “we certainly do not hold that ingesting illicit drugs can
never remove an employee from the course and scope of employment”). But that
does not mean that no violation of safety policy can ever take an employee out
of the course and scope of employment. The safety policy violation in this case
is not dispositive of the course and scope of employment issue, but it is relevant
because it gives guidance regarding what employee conduct furthers Hercules’
business interests. For the reasons discussed above, Cosenza’s leaving the break
room to retrieve a loaded firearm when he was supposed to be monitoring the
generator and watching out for suspicious behavior took him outside the course
and scope of his employment. Indeed, Cosenza’s conduct was so clearly contrary
to Hercules’ business interests, that our conclusion would be the same even if
there had not been a policy in place specifically forbidding this sort of behavior.
      Furthermore, if Cosenza’s conduct aboard the HERCULES 101 did not
take him outside the course of his employment, it is unclear what could have.
Courts have long held that as broad as Jones Act liability is, it is not strict
liability. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994)
(admonishing that the liberal construction requirement “does not mean that
[FELA or the Jones Act are] workers’ compensation statute[s]”); see also id.
(emphasizing that neither the Jones Act nor FELA makes “the employer the
insurer of the safety of his employees while they are on duty”).
      Our conclusion would be the same even if we applied the Sixth Circuit’s
incidental to job duties test. The fact that Cosenza’s job duties were broad and

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                                   No. 11-30415

relaxed does not mean that anything and everything he might choose to do while
watching television is incidental to those job duties. Merriam-Webster defines
“incidental” as “being likely to ensue as a chance or minor consequence.” The
record contains the testimony of multiple witnesses to the effect that an incident
like the one at issue in this case is unheard of, and even Mrs. Beech does not
argue that Hercules should have anticipated this sort of behavior. Mrs. Beech
makes no attempt to explain what having a loaded firearm in the break room
against company safety policies had to do with monitoring the generator that
night. As explained above, not only was Cosenza’s conduct not incidental to
monitoring the generator, it was directly inconsistent with his duty to report
suspicious behavior. Far from incidental to his job duties, Cosenza’s behavior
was inconsistent with them. Therefore, we hold that at the time of the accident,
Cosenza was not acting in the course of his employment.
      This is a difficult case with the most sympathetic and tragic of facts.
Cosenza’s broad and flexible job duties exemplify the unique characteristics of
the seaman’s work that animate the liberal construction we apply to the Jones
Act. See, e.g., Aguilar, 318 U.S. at 731-32 (“Unlike men employed in service on
land, the seaman, when he finishes his day’s work, is neither relieved of
obligations to his employer nor wholly free to dispose of his leisure as he sees fit.
Of necessity, during the voyage he must eat, drink, lodge and divert himself
within the confines of the ship. In short, during the period of his tenure the
vessel is not merely his place of employment; it is the frame-work of his
existence.”). It is equally clear, however, that the liberality of our construction
must stop short of imposing strict liability upon Jones Act employers. Gottshall,
512 U.S. at 542-43. Deciding where an employee’s conduct falls on the course
and scope of employment continuum is necessarily a fact-intensive inquiry, and
courts have few bright line principles to guide them. Some conduct that is
consistent with a very broad and flexible job duty will nevertheless be so
contrary to the employer’s business interests, so unforeseeable by the employer,

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                                No. 11-30415

and so far removed from the employee’s role as employee as to be outside the
course and scope of employment. Even construing the course and scope of
Cosenza’s job duties very liberally, his handling of a loaded firearm in the
vessel’s break room fell outside the course and scope of his employment.
                                      V.
      Because we conclude that Cosenza was outside the course and scope of his
employment, we do not reach whether Beech was in the course of his
employment at the time of the accident. Likewise, because there can be no Jones
Act liability where Cosenza was not acting in the course of his employment, we
need not reach Mrs. Beech’s cross-appeal regarding the district court’s damages
calculation. For these reasons, REVERSE the district court’s judgment in favor
Mrs. Beech, and render judgment in favor of Hercules.




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