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                                                                                        BY
                                                                                                   DE        r

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

CARA J. STINSON, a seaman,                                               No. 44004 -1 - II


                                   Appellant,


          IM



STATE OF WASHINGTON; and                                           UNPUBLISHED OPINION
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS,


                                         ondents.




          WORSWICK, C. J. —      Cara Stinson appeals summary judgment dismissal of her federal

maritime law claims against the State of Washington and its Department of Corrections, arising

from Stinson'   s   MRSA (methicillin     resistant staphylococcus aureus)   1 infection, which she

acquired during her tenure as a Department of Corrections seaman. Stinson argues that she

provided evidence sufficient to survive summary judgment against her on her federal maritime

law    claims under (   1) the Jones Act,2 (   2) maintenance and cure, and ( 3) unseaworthiness. We

reverse summary judgment on all claims because issues of material fact exist regarding whether

Stinson more probably than not acquired MRSA on the ferries or on the docks, rather than off the

job.


1 MRSA is a form of staph bacteria that is resistant to multiple strains of antibiotics typically
used for the treatment of staph infections.

2
    46 U. S. C. § 30104.
No. 44004 -1 - II


                                                        FACTS


A.      Infection


        Stinson suffered severe symptoms from a MRSA infection around March or April of


2008. In March      or   April   of   2008, Stinson   noticed a small pimple on   her buttocks. Stinson' s


pimple either was or quickly became a MRSA infection. The MRSA infection grew larger and

more painful until Stinson could not sit down. The MRSA infection then began to spread down

her leg. Approximately eight days after onset, the infection became so severe that Stinson

almost passed out while working on one of the ferries, and went to the emergency room.

        Two days after Stinson' s emergency room visit, her doctors informed her that she had a

MRSA infection and performed immediate surgery. Stinson missed approximately 16 days from

work due to her MRSA infection.


B.      Employment


        Prior to and throughout the time that Stinson suffered the symptoms of her MRSA

infection, Stinson worked as a seaman for the Washington State Department of Corrections.3

Stinson served as a deck -hand engineer on three ferries that transported passengers and inmates

between the prison' s McNeil Island dock and the Steilacoom dock. Stinson' s job included


monitoring inmates, loading and unloading passengers, operating the ferries, and cleaning the

ferries, including a restroom on one of the them.

         While working on the ferries, Stinson sometimes brushed up against inmates. On the day
 Stinson almost passed out due to her MRSA infection, one of the inmates had told her that he



 3 Stinson has named both Washington State and its Department of Corrections in her suit. We
 refer to both of these institutions as " the State."




                                                            2
No. 44004 -1 - II


was infected with MRSA. Stinson remembered that the inmate who said he had MRSA was one


of the four to six inmates working as line handlers on the ferries, but she could not remember his

name.   Stinson reported the inmate' s statement that he had MRSA to her superior ( Captain


Jenkins) after returning from her hospital stay.

        Stinson does not know exactly where or how she became infected with MRSA.

However, in Stinson'    s opinion, she contracted        MRSA " somewhere that doesn' t         get cleaned,"   like


the ferries or the docks.4 Clerks Papers ( CP) at 59.

        1.   The Ferries


        Stinson' s employment required her to work on all three ferries on the Steilacoom- McNeil


Island run, alternating between them as needed. The ferries had diverse passengers, including

inmates, visitors of inmates, sheriffs, and state patrol officers.


        Prior to when Stinson noticed her MRSA pimple, the State had removed many of the

ferries' sanitation products. The ferries had no running water or soap. At some time prior to the

date that Stinson    noticed   the   pimple,   the State instituted a   rule   prohibiting bleach —so as to


follow the American Correctional Association accreditation standards designed to prevent'

inmates from harming themselves. The ban on bleach resulted in the removal from the ferries of

the bleach mixture that the captain used to sanitize the wheelhouse and wheel. The State had

also removed the ferries' antibacterial wipes and rubber gloves.


4 The State, supported by two of its employees' declarations, denies and contradicts every
allegation Stinson made regarding the sanitation of the ferries and the docks. Because we
consider all facts and reasonable inferences in the light most favorable to the nonmoving party,
we state the facts as Stinson and her mother assert them in the record' s depositions and
declarations. Shoffner v. State, 172 Wn. App. 866, 871 -72, 294 P. 3d 739, review denied, 177
Wn.2d 1022 ( 2013).      The State does not dispute that Stinson has raised an issue of material fact
 as to sanitation.




                                                           3
No. 44004 -1 - II



        For cleaning the ferries' restroom, toilet, seats, rails, and wheel house, the ferries had

disinfectant, glass cleaner, and oil and grease remover. Stinson could not use rubber gloves


when cleaning the ferries, because of the State' s glove ban.

        Of the three ferries Stinson was assigned to, only the Henley had toilets, and this ferry

was out of commission during a period of time surrounding when Stinson noticed the pimple.

Thus, for a period of time Stinson had no place to go. to the restroom during work except for the

McNeil Island dock and the Steilacoom dock.


        2.   The Docks


        Stinson operated the three ferries as they transported passengers back and forth between

two docks —the      McNeil Island dock and the Steilacoom dock. Stinson never worked on or had

to clean the docks. Both docks had restrooms, but at the time Stinson noticed her MRSA pimple,

the restrooms suffered from various states of disrepair.

        The McNeil Island dock had a restroom and an inmate Sani -Can. The restroom was not

functional around the time Stinson noticed her MRSA pimple, and Stinson' s only option on the

McNeil Island dock was to use the inmate Sani -Can. Stinson asked her superior, John Little, for

a second Sani -Can, because the inmate Sani -Can had incredibly poor sanitation conditions.

Little at first refused, but the State eventually placed a second Sani -Can on the McNeil Island

dock, prior to the time that Stinson noticed her MRSA pimple. One of the two Sani -Cans had

soap. However, that soap was always empty because the State did not clean either Sani -Can.

Urine covered the floor, and toilet paper was strewn about. Stinson used the Sani -Cans in this

condition when she had to.




                                                   0
No. 44004 -1 - II


        In addition to the McNeil Island dock restroom and Sani -Cans, the Steilacoom dock had

restrooms in its dock house. The access to these restrooms was limited to employees and guests

of inmates. These restrooms usually had running water, but for a period of time they did not.

Stinson could not remember when the Steilacoom dock restrooms lacked running water, but to

her " best recollection" it was before the time she noticed her MRSA pimple. CP at 53.

C.       Personal Life


         Stinson' s life during the time she became infected with MRSA was limited to working at

the ferries, often 11 hour days, 6 days a week. Because Stinson only had one day off per week,

she was exhausted and never left her home other than to go to work. Thus Stinson never went to

the grocery store, and had no social life at the time surrounding her MRSA infection.

         Stinson lived with her partner, who did the grocery shopping. She was never intimate

with   her   partner, and   did " not really" touch   or   kiss her   partner.   CP   at   55.   Stinson had three


animals in her house. Stinson had no visitors in the year prior to discovering her MRSA pimple

other than her brother, who visited once around the time she noticed her MRSA pimple.

         Stinson was always clean in her personal life, and became even more so after her training

as an emergency medical technician. Stinson always used hand sanitizer, and frequently told her

mother to do the same.


D.       Medical Opinions


         In granting summary judgment, the trial court considered statements from physicians

 each party filed. Dr. Joyce Luteyn opined that Stinson contracted MRSA at work, and Dr. Peter

 Marsh stated that any opinion that Stinson contracted her MRSA infection at her work

 constituted pure speculation.
No. 44004 -1 - II



          1.    Joyce Luteyn, M.
                               D.


          Dr. Joyce Luteyn treated Stinson for her MRSA infection. Luteyn has general medical

knowledge and experience, but had no special expertise on MRSA or infectious disease.

          Luteyn       made several assertions about            MRSA generally: ( 1) MRSA was not an airborne


disease, ( 2)     an   infection is   caused    only    by   direct   contact with     MRSA bacteria, ( 3) one can


transmit MRSA through contact with infected individuals or through contact with any surface

infected       with   MRSA, (4) MRSA            can remain on a surface         for    a   long   time, ( 5)   generally MRSA

infects   an open wound,          which   could    be   a pimple or a     hair follicle, (6) the rate of MRSA was


much higher in prisons than in other environments, and ( 7) typically doctors can never reliably

determine the specific source of a MRSA infection, because too many potential sources exist,

and it was incredibly easy to become infected with MRSA. Luteyn further stated that washing

your hands will remove the bacteria, and is the best way to protect against infection.

          Luteyn opined that, on a more probable than not basis, Stinson was infected with MRSA

while on the job. Luteyn supported this opinion with her knowledge that ( 1) prisons have high

rates of MRSA, (2) Stinson was unable to keep her hands or body parts clean while at work, and

 3) Stinson had to share a toilet with others at work. Luteyn stated that the ability to wash one' s

hands and keep oneself clean was critical in high risk situations of MRSA, such as a prison.

Luteyn stated that for this reason, Stinson had a higher risk while working on the ferries —

transporting          and   working   with   inmates —than an average person would have in their life.


           2. Peter Marsh, M.D.


           Dr. Peter Marsh, a board certified specialist in infectious disease, reviewed the medical

reports of       Stinson'    s   MRSA   case.    Marsh       concluded   that   on a   more       probable     than   not   basis,   no
No. 44004 -1 - II



evidence supported Stinson' s claim that MRSA resulted from her employment with the State.


Marsh supported his conclusion with his statement that it was " entirely speculative" to say where

Stinson acquired MRSA, because MRSA was commonplace within the community, and

constituted more than 60 per cent of all staph aureus infections. CP at 89. Marsh stated that


MRSA can occur from any skin -o -skin contact, anywhere from the community.
                             t

E.      Procedural History

          Stinson made claims against the State under the Jones Act, maintenance and cure, and


unseaworthiness, for damages resulting from her MRSA infection. The State moved for

summary judgment as to all of Stinson' s claims. The State argued below that the superior court

should not consider Dr. Luteyn' s testimony when determining whether summary judgment was

appropriate, because Luteyn lacked the requisite knowledge to provide an opinion as to what

caused Stinson' s MRSA infection.


          The trial court granted summary judgment against Stinson and dismissed all of her

claims. Stinson appeals.


                                              ANALYSIS


          We review summary judgment determinations de novo. Dean v. Fishing Co. ofAlaska,

Inc., 177 Wn.2d 399, 405, 300 P. 3d 815 ( 2013).     Summary judgment is appropriate if no genuine,

issue of material fact exists, and the moving party is entitled to judgment as a matter of law.

Dean, 177 Wn. 2d     at   405. We do not weigh evidence or assess witness credibility on summary


judgment. Barker v. Advanced Silicon Materials, LLC, 131 Wn. App. 616, 624, 128 P.3d 633

 2006).




                                                    7
No. 44004 -1 - II



        When determining whether summary judgment is appropriate, we consider the facts and

all reasonable inferences from those facts in the light most favorable to the nonmoving party.

Shoffner     v.   State, 172 Wn.        App. 866,   871 - 72, 294 P. 3d 739 ( 2013), review denied, 177 Wn.2d


1022 ( 2013).        While the moving party bears the initial burden of showing that no issue of

material     fact   exists, "[   t]he nonmoving party cannot merely claim contrary facts and may not rely

on speculation, argumentative assertions that unresolved factual issues remain, or on affidavits

considered at       face   value."      Shoffner, 172 Wn. App. at 872.

         We may determine a question of fact on summary judgment as a matter of law if

reasonable minds could reach but one conclusion from the evidence. Swinehart v. City of

Spokane, 145 Wn.           App.    836,. 844, 187 P. 3d 345 ( 2008). However, " summary            judgment will not

lie if ...   the evidence is such that a reasonable jury could return a verdict for the nonmoving

party." Anderson           v.   Liberty Lobby,   Inc., 477 U. S. 242, 248 ( 1986). " Breach and proximate


cause are     generally fact       questions    for the trier   of   fact."   Hertog v. City ofSeattle, 138 Wn.2d 265,

275, 979 P. 2d 400 ( 1999).


         When a seaman brings a maritime action into a state court, federal statutory and common

law   controls.      Clausen      v.   Icicle Seafoods, Inc., 174 Wn.2d 70, 76, 272 P. 3d 827, cent. denied, 133


S. Ct. 199 ( 2012).


         Neither state nor federal workers' compensation provides relief to injured seamen.


Clausen, 174 Wn.2d at 76. However, a seaman may make claims under the federal maritime

doctrines of the Jones Act, maintenance and cure, and unseaworthiness.




                                                                     RIM
No. 44004 -1 - II



                                      I. ADMISSIBILITY OF LUTEYN' s TESTIMONY


           As a threshold matter, the State argues that we should disregard Luteyn' s statements of


opinion, because her testimony is inadmissible under ER 702. We disagree. 5
           We review evidence rulings in conjunction with summary judgment motions de novo.

Parks v. Fink, 173 Wn. App. 366, 375, 293 P. 3d 1275, review denied, 177 Wn.2d 1025 ( 2013).

We consider only admissible facts and affidavits in determining whether summary judgment is

proper.     CR 56( e);   Short v. Battle Ground School Dist., 169 Wn. App. 188, 196, 279 P. 3d 902

 2012).


           ER 702 states:


           If scientific, technical, or other specialized knowledge will assist the trier of fact
           to understand the evidence or to determine a fact in issue, a witness qualified as
           an expert by knowledge, skill, experience, training, or education, may testify
           thereto in the form of an opinion or otherwise.


           Our Supreme Court has held that an expert' s opinion is admissible if the witness is

properly qualified, relies on generally accepted theories, and has testimony that is helpful to the

trier of   fact. Philippides         v.   Bernard, 151 Wn.2d 376, 393, 88 P. 3d 939 ( 2004). We construe


    helpfulness" to the trier        of   fact   broadly.   Philippides, 151 Wn.2d    at   393.   However, an expert



must not testify beyond her area of expertise. Queen City Farms, Inc. v. Cent. Nat' l Ins. Co. of
Omaha, 126 Wn.2d 50, 102, 882 P. 2d 703 ( 1994).


           In this case, Luteyn was the doctor who treated Stinson for her MRSA infection. As a

medical doctor with experience treating patients who suffer from MRSA infections, Luteyn is

5
    The State   cites   Guile   v.   Ballard      Cmty. Hosp.,   70 Wn.   App.   18, 25, 851 P. 2d 689 ( 1993), for the

proposition that expert testimony is generally required to prove medical diagnosis and causation.
However, this rule is specifically limited to medical malpractice cases, and thus does not apply to
 Stinson' s case. Guile, 70 Wn. App. at 25.



                                                                  G
No. 44004 -1 - II



qualified to testify as to the probable source of Stinson'.s MRSA infection. We hold that Dr.

Luteyn is qualified to testify as to her medical opinion regarding the probability that Stinson

acquired her MRSA infection while on the job or while on the ferries.

                                                     II. THE JONES ACT


         Stinson argues that the trial court erred by granting summary judgment against her on her

Jones Act claim. We agree. The Jones Act created a statutory cause of action for negligence,

stating as follows:

         A      seaman   injured in the       course                 may elect to bring a civil
                                                          of employment ...


         action at law, with the right of trial by jury, against the employer.

46 U. S. C. §. 30104.


           The elements of a Jones Act negligence claim are duty, breach, notice, and causation.

Ribitzki   v.   Canmar     Reading &     Bates, Ltd., 111 F. 3d 658, 662 ( 9th Cir. 1997).         For a duty to exist,

the   seaman must     have   suffered    injury " in the        course of employment."      46 U.S. C. § 30104. For


seamen     like Stinson     who   do   not   live   on   the ferries ( called   " brown -
                                                                                        water seamen ")   this means



that the harm must have occurred while the seaman was on the job, rather than off duty. See

Shoffner, 172 Wn. App. at 874 -76.

           An employer has a broad duty under the Jones Act to provide a safe ship and to provide

seamen in its employ with a safe workplace. Havens v. FIT Polar Mist, 996 F.2d 215, 218 ( 9th
Cir. 1993);      Ribitzki, 111 F.3d at 662. We interpret the Jones Act liberally to achieve its

beneficial      purpose.   Shoffner, 172 Wn.             App.   at   873. Even the slightest negligence renders the


employer liable. Havens, 996 F. 2d at 218.




                                                                     10
No. 44004 -1 - II



        Likewise, a plaintiff can establish causation if the defendant' s negligence played any part,

however slight, in causing the injury. Ribitzki, 111 F.3d at 664. This test, often described as a

 featherweight causation standard" provides that the slightest evidence of causation will allow a


plaintiff   to   survive   summary judgment. 111 F. 3d at 664.


        Here, an issue of material fact exists as to whether the State negligently failed to provide

sufficient cleaning materials on the ferries, and negligently failed to properly clean the restrooms

and Sani -Cans on the docks. An issue of material fact also exists as to whether these negligent


acts of the State played a part, however slight, in causing Stinson' s MRSA infection.

        A reasonable jury could find that the State negligently failed to properly provide a safe

ferry. The ferries had no running water or soap. The State removed bleach, anti -bacterial wipes,

and gloves from the ferries, and required Stinson to clean the ferries without these cleaning

materials.




        A reasonable jury could also find that the State negligently failed to provide safe dock

bathrooms. On the McNeil Island dock, the restroom was out of order when Stinson developed


her MRSA infection. There was a time when only the inmate Sani -Can was available. Even

after the State installed a second Sani -Can, the soap was never refilled because the State did not

clean the Sani -Cans. The Steilacoom dock bathrooms were without running water for a period of

time.



        A jury could further find that the State' s negligent acts more likely than not caused

 Stinson' s MRSA infection. Luteyn considered Stinson' s working conditions and her personal

life and then concluded that it was more probable than not that Stinson' s MRSA infection

 occurred while Stinson was on the job.




                                                      11
No. 44004 -1 - II



        Marsh' s    medical     declaration —concluding that Stinson              cannot prove causation —does    not


resolve the issue for summary judgment purposes. We do not resolve conflicting expert

testimony on summary judgment, as it is a credibility question for the jury. Barker, 131 Wn.

App. at 624; see also Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 119 -20, 11
P. 3d 726 ( 2000).


         The   record    sufficiently    raises an   issue   of material   fact   as   to   whether —on a more




probable   than   not   basis —the State' s negligent failure to provide sanitary working conditions


contributed " however slightly" to Stinson' s MRSA infection. This is because a reasonable jury

could find that the State' s negligent failure to provide the materials necessary for Stinson to

maintain her cleanliness on the ferries, and its negligent failure to clean or refill the soap in the

restrooms or Sani -Cans, more probably than not contributed to her contracting a MRSA

infection —particularly         because she was in a " high risk environment" for MRSA. Thus summary

judgment was inappropriate on Stinson' s Jones Act claim.

                                             III. MAINTENANCE AND CURE


         Stinson argues that the trial court erred in granting summary judgment against her claim

for maintenance and cure because an issue of material fact exists as to whether her MRSA

condition occurred, manifested, or was aggravated while on the job. We agree.

         A shipowner has a broad duty to pay maintenance and cure to any seaman in its employ

who suffers an illness or injury while in service of the ship. Dean, 177 Wn.2d at 405 -06.

  Maintenance" requires the shipowner to pay a seaman a per diem living allowance for food and

 lodging. comparable       to   what   the   seaman would     have   received while at sea.        177 Wn.2d at 406.


  Cure" obligates the shipowner to pay for all medical expenses to treat an injury or illness-



                                                              12
No. 44004 -1 - II



occurring       while   the   seaman   is working for the ship —until          maximum cure   is   reached.    177 Wn.2d


at 406.


           The shipowner' s duty to provide maintenance and cure arises whenever the seaman can

prove with a preponderance of             the   evidence   that "( 1)   they   were employed as seamen, ( 2)      their


injuries   or   illnesses     occurred, manifested, or were aggravated while            in the ship'   s service, (   3) the


wages to which they are entitled, and ( 4) expenditures for medicines, medical treatment, board

and   lodging."     177 Wn.2d       at- 409.    The   seaman' s   burden   of proof   is relatively light. 177 Wn.2d


at 409. We resolve all ambiguities and doubts related to maintenance and cure in favor of the

seaman.       177 Wn.2d at 408.


           Causation is irrelevant to the shipowner' s duty to provide maintenance and cure. See

Tuyen Thanh Mai v. American Seafoods Co., LLC, 160 Wn. App. 528, 547, 249 P. 3d 1030

 2011).     In fact " a seaman is entitled to recover for a preexisting condition that manifests itself

while   the     seaman   is in the ship'   s service."     Tuyen Thanh Mai, 160 Wn. App. at 547 ( emphasis

added).       For brown -
                        water       seamen      like Stinson, " in   the ship' s service" means that the harm must

have occurred while the seaman was on the job, rather than. off duty. See Shoffner, 172 Wn.

App. at 874 -76.

           We hold that summary judgment is inappropriate on Stinson' s maintenance and cure

claim. This is because Stinson has raised an issue of material fact as to whether the infection


more likely than not occurred, manifested, or was aggravated while she was working " in the

ship' s service."




                                                                13
No. 44004 -1 - II


           First, Stinson     almost passed out    from her MRSA infection —and had to go to the


emergency       room —     while at work on the ferries. Thus regardless of whether Stinson acquired the


infection while on the job, an issue of material fact exists as to whether or not her MRSA was a


condition that " manifested" itself on the job. See Tuyen Thanh Mai, 160 Wn. App. at 547.

Second, Luteyn concluded, after considering the conditions at Stinson' s job, as well as her

personal life, that it was more probable than not that the MRSA infection occurred while Stinson

was on the job.


            The record sufficiently raises an issue of material fact as to whether Stinson more

probably than not acquired a MRSA infection while she was on the job. A reasonable jury could

find that the ferries and docks were unsanitary, and combine this with Stinson' s long work hours

on   the   ferries   and   docks.    The jury could then conclude that it is more probable that Stinson

acquired MRSA during the long hours she spent working on the unsanitary, public, and crowded

ferries and docks, rather than during the time she lived a fastidious personal life where she rarely

if ever left home. Thus summary judgment is inappropriate on Stinson' s maintenance and cure

claim.




                                                 IV. UNSEAWORTHINESS


            Stinson argues that summary judgment was inappropriate on her seaworthiness claim,

because an issue of material fact exists as to whether she contracted MRSA because of the

ferries' inadequate cleaning supplies. We agree

            A seaworthy ship is one that is reasonably fit for its intended use. Mitchell v. Trawler

Racer, Inc., 362 U. S. 539, 550 ( 1960).            Unseaworthiness is a form of strict liability, in that the

plaintiff    does    not   have to   show   fault. Miller   v.   Arctic Alaska Fisheries   Corp.,   133 Wn.2d 250,




                                                                 14
No. 44004 -1 - II



264 -65   n. 7,   944 P. 2d 1005 ( 1997). To establish a claim for unseaworthiness, a plaintiff must


show   that   she (   1) "   was   injured   while   in the ship'     s service, ( 2)   by   a piece of   ship'   s equipment, ( 3)



which was not         reasonably fit for its intended              use."   133 Wn.2d at 264.


          The doctrine of unseaworthiness is broad and extends to almost any defective condition

related   to the ship, however         temporary       that   defective     condition    may be.    Usner v. Luckenbach


Overseas      Corp.,     400 U. S. 494, 499 ( 1971).           Unseaworthy conditions can arise from a wide

variety   of circumstances.           Usner, 400 U. S.        at   499 ( 1971).    The duty extends to appliances

 appurtenant" to the ship. Bishop v. Alaska S. S. Co., 66 Wn.2d 704, 709 -10, 404 P.2d 990

 1965).    A ship is unseaworthy if it is            insufficiently        or   defectively   equipped.     Waldron v. Moore-


McCormack Lines, Inc., 386 U. S. 724, 726 ( 1967).


          Causation is more difficult to establish for unseaworthiness than for the Jones Act. To

establish causation in the case of unseaworthiness, a plaintiff must demonstrate not only that the

seaman was in service of the ship, but also that a piece of the ship or the ship' s condition played

a substantial part in causing the plaintiff' s injuries. Faraola v. O'Neill, 576 F. 2d 1364, 1366 ( 9th

Cir. 1978).


          Nonetheless, summary judgment was inappropriate as to Stinson' s claim for

unseaworthiness. Taking the facts in the light most favorable to Stinson, a reasonable jury could

find that the State failed to provide any running water, soap, bleach, or gloves on the ferries, and

required Stinson to clean the ferry without alternative cleaning items. A reasonable jury could

determine that the lack of proper cleaning equipment constituted an unseaworthy condition, and

that this unseaworthy condition constituted a substantial factor in Stinson' s infection with

MRSA. Thus summary judgment was inappropriate on her unseaworthiness claim



                                                                      15
No. 44004 -1 - II


        We reverse and remand for trial.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                   Worswick, C. J.
