                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0142p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                               Plaintiff-Appellant, -
 GLENDA CHURCHWELL,
                                                      -
                                                      -
                                                      -
                                                         No. 05-5185
          v.
                                                      ,
                                                       >
 BLUEGRASS MARINE, INC., MARQUETTE                    -
                                                      -
                                                      -
 TRANSPORTATION CO., INC., and MOTOR VESSEL

                            Defendants-Appellees. -
 MARIE HENDRICK,

                                                      -
                                                    N
                      Appeal from the United States District Court
                    for the Western District of Kentucky at Paducah.
                   No. 03-00193—W. David King, Magistrate Judge.
                                  Argued and Submitted: March 15, 2006
                                    Decided and Filed: April 21, 2006
              Before: MARTIN and CLAY, Circuit Judges; SARGUS, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Bobby R. Miller, Jr., GAULT, MARSHALL & MILLER, Paducah, Kentucky, for
Appellees. ON BRIEF: John J. Osterhage, LAWRENCE & SCHLETKER, Warsaw, Kentucky,
for Appellant. Bobby R. Miller, Jr., E. Spivey Gault, GAULT, MARSHALL & MILLER, Paducah,
Kentucky, for Appellees.
                                             _________________
                                                 OPINION
                                             _________________
        CLAY, Circuit Judge. Plaintiff, Glenda Churchwell, appeals an order of the United States
District Court for the Western District of Kentucky, granting summary judgment in favor of
Defendants, Bluegrass Marine, Inc., Marquette Transportation Company Inc., and Motor Vessel
Marie Hendrick, and dismissing Plaintiff’s claims of 1) unseaworthiness in violation of general
maritime law, and 2) negligence in violation of the Jones Act. For the reasons set forth below, we
REVERSE the district court’s dismissal of Plaintiff’s claims.


        *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting
by designation.


                                                         1
No. 05-5185              Churchwell v. Bluegrass Marine, et al.                                              Page 2


                                                    I.
                                               BACKGROUND
        Plaintiff’s personal injury claims arise out of an accident that occurred aboard Defendants’
ship, the Marie Hendrick, on May 9, 2002, where Plaintiff was employed as a cook. Plaintiff was
cleaning the kitchen after having served the crew breakfast. She poured grease from a skillet into
a coffee can. According to Plaintiff, a crewman named Larry had instructed her that the grease must
be kept in the coffee can. Plaintiff then picked up the coffee can to place it back in its corner. She
picked up the can by its rim using her right hand and placing her thumb in the interior of the can
while placing remainder of her hand on the outside of the can. Apparently, the inside of the can was
greasy, and the can slipped from Plaintiff’s fingers. The can hit the counter and fell onto the floor.
The grease, which was not hot, landed on the counter, Plaintiff, and the smooth, solid floor mat on
which Plaintiff was standing. Plaintiff took one step backwards and slipped in the grease on the
floor. Plaintiff sustained back injuries from her fall.
         According to Plaintiff, she would not have dropped the grease can if she had been allowed
to place it in a container with handles, and she would not have slipped if1 the mat had contained holes
to re-direct the grease. Plaintiff obtained the services of Dr. Huston, an engineer, to support her
argument that Defendants’ failure to provide mats with holes (“grease mats”) and a container with
a handle created a dangerous work environment. Dr. Huston testified at his deposition that
Defendants should have placed a grease mat in the kitchen because spills in a kitchen are foreseeable
and unavoidable. Additionally, Dr. Huston testified that Defendants should have provided Plaintiff
with a grease container that had a handle. According to Dr. Huston, grease containers with handles
are commercially available. Finally, Dr. Huston testified that it was his opinion that Defendants’
failure to provide grease mats and a container with a handle made Plaintiff’s accident more likely.
Specifically, a container with a handle would have decreased the likelihood of spills and a grease
mat would have substantially decreased the likelihood of accidents from spilled liquid by containing
and diverting the liquid.
        Defendants moved in limine to exclude Dr. Huston’s testimony. They argued that Dr.
Huston’s testimony improperly characterized their duties under the relevant law by implying that
Defendants had a duty to provide an accident-free work place. Additionally, Defendants argued that
Dr. Huston’s testimony that safer alternatives existed, i.e., the grease mat and container with handle,
was irrelevant to the issues in this case. According to Defendants, the existence of safer alternatives
does not render the existing conditions unsafe.
        That same day, Defendants moved for summary judgment. Defendants argued that the
negligent manner in which Plaintiff picked up the grease container was the sole cause of Plaintiff’s
injuries. Defendants pointed to Dr. Huston’s admission that if Plaintiff had picked up the container
with two hands or if she had placed the container on a tray to move it that she would have been less
likely to drop it. Thus, according to Defendants, summary judgment was proper because:
(1) Defendants had not breached any duty by providing an unreasonably dangerous work
environment; and (2) Plaintiff’s own negligence was the proximate cause of her injuries rendering
the primary duty rule a bar to Plaintiff’s suit.
       Plaintiff eventually responded to Defendants’ motion for summary judgment but failed to
respond to their motion in limine. Thus, the district court granted Defendants’ motion in limine,
holding that: (1) Dr. Huston’s testimony that the Marie Hendrick’s kitchen was unreasonably

         1
          Dr. Thomas R. Huston received a bachelor’s degree in engineering science, a master’s degree in mechanical
engineering, and a Ph.D. in industrial engineering from the University of Cincinnati. He works for the consulting firm
R.L. Huston & Associates and is an adjunct associate professor at the University of Cincinnati. He teaches classes on
safety and human factors in engineering.
No. 05-5185           Churchwell v. Bluegrass Marine, et al.                                 Page 3


dangerous was an inadmissible legal conclusion; and (2) Dr. Huston’s testimony regarding safer
alternatives to the grease can and slippery mats was irrelevant. The district court also granted
Defendants’ motion for summary judgment, holding that there was no evidence that Defendants had
breached their duty of “ordinary prudence” under the Jones Act or that the Marie Hendrick was
unseaworthy. The court reasoned that no similar mishaps had occurred in the past, Plaintiff failed
to present evidence that the mats and grease container violated custom, and the danger from the
grease was open and apparent. It further reasoned that Plaintiff’s own negligence caused the
accident. Finally, the district court rejected Plaintiff’s maintenance and cure claim on the ground
that Plaintiff was no longer capable of further recovery and any treatment would only serve to
alleviate pain and suffering. Plaintiff now appeals the district court’s grant of summary judgment
in favor of Defendants on her unseaworthiness and Jones Act claims but not on her maintenance and
cure claim.
                                              II.
                                          DISCUSSION
        The district court erred in granting Defendants’ motion for summary judgment on Plaintiff’s
unseaworthiness and Jones Act claims. Plaintiff presents sufficient evidence such that she could
prevail on both claims at trial. Moreover, contrary to Defendants assertions, Plaintiff’s own
negligence does not provide an adequate basis on which to grant summary judgment. Maritime law
espouses a system of comparative negligence, in which a plaintiff’s own negligence does not bar
recovery. The only exception to this rule is the primary duty doctrine, under which the employee
responsible for maintaining safe conditions may not sue his employer for his own failure to maintain
safe conditions. As the primary duty doctrine has no application in this case, Plaintiff’s alleged
negligence is not grounds for summary judgment. Therefore, we reverse the order of the district
court, granting summary judgment in favor of Defendants.
A.     Standard of Review
        This Court reviews a district court order granting summary judgment de novo. Rannals v.
Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir. 2001). Summary judgment is only proper where
“the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In reviewing a grant of
summary judgement, we draw all reasonable inferences in favor of the nonmoving party. Rannals,
265 F.3d at 447. “In particular, when we review a grant of summary judgment involving claims
under the Jones Act, we are mindful of the policy of providing expansive remedies for seamen who
are injured while acting in the course of their employment and recognize that the submission of
Jones Act claims to a jury requires a very low evidentiary threshold.” Id. (internal quotations
omitted). Plaintiff must offer “more than a scintilla of evidence in order to create a jury question
on the issue . . . but not much more.” See Aparicio v. Norfolk & W. Ry. Co. 84 F.3d 803, 810 (6th
Cir. 1996) (addressing a FELA negligence claim).
B.     Analysis
       1.      Dr. Huston’s Testimony
       As a threshold matter, we note that we may not consider Dr. Huston’s testimony in
determining whether Plaintiff demonstrates the existence of genuine issues of material fact. We
conclude that we may not consider Dr. Huston’s testimony because Plaintiff failed to preserve its
admissibility for this Court’s review. The district court excluded Dr. Huston’s testimony in response
to Defendants’ motion in limine. Despite being given multiple opportunities in the district court to
respond to Defendants’ motion, Plaintiff failed to oppose the motion. Therefore, Plaintiff failed to
No. 05-5185            Churchwell v. Bluegrass Marine, et al.                                     Page 4


preserve this issue for our review, and we cannot now disregard the district court order excluding
Dr. Huston’s testimony. Barner v. Pilkington N. Am., 399 F.3d 745, 749 (6th Cir. 2005) (holding
that a party must alert the trial court to the legal basis for the admission of evidence in order preserve
the right to appeal the trial court’s exclusion of evidence).
        2.      Plaintiff’s Unseaworthiness Claim
       The district court erred in granting Defendants’ motion for summary judgment on Plaintiff’s
unseaworthiness claim because Plaintiff offered sufficient evidence to create a genuine issue of
material fact as to each element of her unseaworthiness claim.
                a.      The Doctrine of Seaworthiness
        A ship owner is strictly liable for personal injuries caused by his or her vessel’s
“unseaworthiness.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960). A vessel is
unseaworthy if the vessel and its appurtenances are not “reasonably fit for their intended use.”
Mitchell, 362 U.S. at 550. Defective gear, an unfit or understaffed crew, or the use of an improper
method of storage or unloading cargo all render a vessel unseaworthy. Morales v. City of Galveston,
370 U.S. 165, 170 (1962). Even the misuse of properly functioning equipment may render a vessel
unseaworthy if the misuse occurs at the direction of a superior. Waldron v. Moore-McCormack
Lines, Inc., 386 U.S. 724, 726-28 (1967) (citing Crumady v. The Joachim Hendrik Fisser, 358 U.S.
423, 427 (1959)). Generally, unseaworthiness is a question of fact for the jury and should not be
resolved by the district court as a matter of law. See Cook v. American S.S. Co., 53 F.3d 733, 742
(6th Cir. 1995) (citing Roper v. United States, 368 U.S. 20 (1961)), overruled on other grounds by
Gen. Elec. v. Joiner, 522 U.S. 136, 143 (1997).
        To prevail on an unseaworthiness claim, a plaintiff must establish that a vessel’s
unseaworthy condition was the proximate cause of his or her injuries. Miller v. Am. President Lines,
LTD, 989 F.2d 1450, 1463-64 (6th Cir. 1993). A vessel’s unseaworthiness is the proximate cause
of a plaintiff’s injuries if it was a substantial factor in causing such injuries. Id. at 1464. In other
words, unseaworthiness proximately causes an injury if it “‘ played a substantial part in bringing
about or actually causing the injury and the injury was either a direct result or a reasonably probable
consequence of unseaworthiness.’” Id. (quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347,
1354 (5th Cir. 1988)).
                b.      Summary Judgment was Improper
        Plaintiff’s testimony creates sufficient evidence to create a genuine issue of material facts
as to both elements of an unseaworthiness claim: (1) the unseaworthy condition of the ship; and
(2) proximate causation.
                        i.      Unseaworthy Condition
         Plaintiff’s testimony creates a genuine issue of material fact as to whether the absence of
grease mats and a container with a handle rendered the Marie Hendrick unseaworthy. A vessel may
be unseaworthy because it contains defective gear, is missing necessary gear, or because its crew
is instructed to use unsafe work methods. Morales, 370 U.S. at 170; see Walderon, 386 U.S. at 727
(holding that crew’s misuse of equipment pursuant to order rendered vessel unseaworthy).
According to Plaintiff’s deposition testimony, the kitchen did not contain grease mats or containers
with handles, which are arguably necessary gear. Additionally, Plaintiff testified that she was
instructed to pour grease into a coffee can, an arguably unsafe work method. Although the
admission of Dr. Huston’s testimony undoubtedly would have strengthened Plaintiff’s contention
that these conditions rendered the Marie Hendrick unseaworthy, a jury does not need expert
testimony to conclude that Defendants’ failure to provide grease mats and a container with a handle
No. 05-5185              Churchwell v. Bluegrass Marine, et al.                                              Page 5


rendered Plaintiff’s work environment unsafe. These issues fall squarely within the type of
knowledge that most persons obtain through everyday life experiences. Cf. Butera v. District of
Columbia, 235 F.3d 637, 659 (D.C. Cir. 2001) (applying District of Columbia law); Dilligham v.
IBP, Inc., 219 F.3d 797, 799 (8th Cir. 2000 ) (applying Kansas law); U.S. v. Corey, 207 F.3d 84, 97
n.11 (1st Cir. 2000) (quoting 29 Charles Allan Wright & Victor James Gold, Federal Practice and
Procedure § 6274 (1997) (“On the other hand, expert testimony does not assist where the jury has
no need [] for an opinion because it easily can be derived from common sense, common experience,
the jury's own perceptions, or simple logic.”). Because reasonable people could disagree about
whether the absence of grease mats and containers with handles rendered Plaintiff’s work space
unsafe, this issue should be submitted to the jury. See Hutch v. Durocher Dock & Dredge Co., 33
F.3d 545, 547 (6th Cir. 1994) (holding that where reasonable people applying the proper legal
standard could disagree the claim should be submitted to the jury).
        Accordingly, we reject Defendants argument that proof of a safer work environment or
methods is inadmissible.2 The Federal Rules of Evidence require district courts to admit all relevant
evidence unless such evidence is otherwise inadmissible. See Fed. R. Evid. 402. The rules define
relevant evidence as “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable than it would be without the
evidence.” Fed. R. Evid. 401 (emphasis added). As the Supreme Court and this Court have noted
on numerous occasions, this standard of relevancy is liberal. Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 587 (1993); Hildebrand v. Bd. of Trustees of Mich. State Univ., 607 F.2d 705, 713
n.15 (6th Cir. 1979).
         We believe that evidence of a safer environment or method is relevant within the meaning
of Rule 401. Plaintiff is suing Defendants for failure to maintain safe working conditions and
negligence and thus must demonstrate that Defendants failed to exercise reasonable or ordinary care
in outfitting the kitchen. “Typically, this involves a person’s giving attention both to possible
dangers, mistakes and pitfalls and to ways of ensuring that these pitfalls do not materialize.” Black’s
Law Dictionary 204 (7th ed. 1999) (defining care in the context of negligence). Proof that a safer
alternative existed makes it “more probable” that Defendants failed to exercise reasonable care in
outfitting the kitchen.
        The advisory committee notes to Rule 407, which precludes the introduction of subsequent
remedial measures to prove negligence, provide an illustrative analogy. Fed. R. Evid. 407 advisory
committee’s notes. According to the advisory committee notes, evidence of subsequent remedial
measures are excludable for policy reasons and not because such measures are irrelevant. Id. The
notes indicate that one could logically infer from a defendant’s decision to take subsequent remedial
measures that defendant’s prior conduct or failure to take such measures was negligent. Id.
Although Plaintiff’s testimony in this case does not cover subsequent remedial measures, the
implication from the advisory committee notes is nonetheless clear. Evidence of an alternative to
allegedly negligent conduct is relevant, and thus admissible, unless excluded by another rule of
evidence for policy reasons. In this case, no such exclusionary rule exists. See generally Fed. R.
Evid. Art. IV, Relevancy And Its Limits (containing no applicable exclusionary rule).
        Locke v. River Lines, Inc., 248 F. Supp. 92 (N.D. Cal. 1964), does contradict this holding.
In Locke, the district court determined that the existence of a safer docking procedure did not render
the procedures used by the defendant negligent or unsafe. Id. at 94. Locke, however, addressed
the sufficiency of evidence and not the admissibility of evidence. Id. In Locke the court admitted
expert testimony regarding safer docking procedures but found that such testimony, alone, did not


         2
          Although Defendants make this argument in regard to the exclusion of Dr. Huston’s testimony, it applies with
equal force to Plaintiff’s own testimony.
No. 05-5185               Churchwell v. Bluegrass Marine, et al.                                              Page 6


prove that the defendant’s method was unsafe. Id. Unlike in Locke, the issue in this case is not
whether evidence of a safer environment or measures alone proves that Defendants were negligent,
but rather whether such evidence makes it more probable that Defendants were negligent. As
discussed above, we believe that it does make it more probable that Defendants were negligent.
         Finally, we also reject Defendants’ argument that the Marie Hendrick was not unseaworthy
because Plaintiff had a safe alternative to grasping the coffee can with one hand: she could have used
two hands. Defendants cite several cases from outside this Circuit to support this argument. These
cases are not on point, however, because the defendants in the cited cases all clearly met their duty
of care. That is, in the cited cases there was nothing more that the defendants could have done to
prevent the accidents and make the ship safer. See Lyons v. Ohio River Sand and Gravel Co., 683
F.2d 99 (4th Cir. 1982) (holding that the defendant was not negligent for sending one man to obtain
a screen because it was unforeseeable that the screen would be buried under heavy objects that the
plaintiff would choose to lift without asking for help when the general practice on the ship was to
give assistance to others in such situations); Robinson v. Zapata Corp., 664 F.2d 45 (5th Cir. 1981)
(holding that the ship was not unseaworthy for failing to provide the plaintiff welder with a clamp
to secure a piece of metal where other equipment/methods existed to insure the metal held in place
and the plaintiff, with knowledge of these methods, chose not to secure the metal); Fueston v. Lykes
Bros. Steamship Co., 550 F.Supp. 139 (N.D. Cal. 1982) (holding that a ship was not unseaworthy
where the plaintiff slipped after choosing not to climb the     ladder leading to top platform but and
instead climbed a ladder and leaped to the top platform).3 The accidents in these cases were caused
by the plaintiffs’ unforeseeable decisions not to use the safe alternatives provided by the defendants.
In this case, it is debatable whether the “alternative” provided by Defendants – a two hand method
of gripping the coffee can – was adequate to meet its duty to provide a safe environment. See
Ribitzki v. Canmar Reading & Bates Ltd., 111 F.3d 658 (9th Cir. 1997) (holding that whether the
defendant met its duty of care was an issue for the jury where the plaintiff could have avoided the
accident by using a safer method but where defendant could have prevented the accident by
providing a larger space for the plaintiff’s work). Spills are still likely to occur if Defendants’
employees adopt the two hand method. In light of the foreseeable nature of spills even accepting
Defendants’ two hand method, it seems reasonable for Plaintiff to argue that Defendants nonetheless
had a duty to provide grease mats. Ultimately, it is the job of the jury to determine whether
Defendants met their duty or whether Defendants should have provided a container with handles
and/or grease mats. Id. (holding that whether a defendant meets its duty is generally a jury issue).
                           ii.      Causation
        Plaintiff has also offered sufficient evidence of proximate causation to create a genuine issue
of material fact. Again, Plaintiff is free to testify that the lack of adequate flooring was a substantial
factor causing her to slip and that the lack of a container with a handle was a substantial factor
contributing to the container slipping from her grip. Plaintiff does not need an expert to testify about
such causation in order to submit this issue to the jury. These issues fall squarely within the type
of knowledge that most persons obtain through everyday life experiences. Because reasonable
people could disagree about whether these conditions were substantial factors causing Plaintiff’s
accident, causation is properly an issue for the jury. See id.



         3
          Additionally, Defendants rely heavily on Fasold v. Del. River & Bay Auth., No. 01-CV-4541, 2003 WL
22723019 (D.N.J. Aug. 6, 2003), which the Third Circuit overruled on direct review, holding that Fasold’s Jones Act
and unseaworthiness claims based on an injury she sustained while moving a beer keg on a ship should go to the jury.
117 Fed. App’x 836 (3d Cir. 2004). The Third Circuit reasoned that reasonable persons could disagree as to whether
the defendants met their duty to provide a safe work environment, where Fasold needed to move the keg in order to clean
and was unable to find a male crew member to help her move the keg. Id. at 839.
No. 05-5185                Churchwell v. Bluegrass Marine, et al.                                                   Page 7


         3.        Plaintiff’s Jones Act Claim
        The district court erred in granting summary judgment on Plaintiff’s Jones Act claim because
Plaintiff offered sufficient evidence to create genuine issues of material fact as to each element of
her Jones Act claim.
                   a.       The Jones Act
         The Jones Act, 46 U.S.C. § 688,4 authorizes seamen to maintain negligence actions for
personal injury suffered in the course of employment. The Act expressly incorporates all portions
of FELA that modify and extend the common law as applied to actions by railroad employees. Id.
Thus, under the Jones Act, an employer has a duty to provide a safe workplace for its employees,
and to prevail under the Jones Act a “plaintiff must show that her employer [breached this duty by]
failing to provide a safe workplace by neglecting to cure or eliminate obvious dangers of which the
employer or its agents knew or should have known.” Rannals, 265 F.3d at 449-50 (citations
omitted). Once a plaintiff establishes that the employer breached his or her duty of care, however,
the plaintiff need not establish proximate causation but “only show that the defendant’s actions,
however slight, contributed in some way toward causing the plaintiff’s injuries.” Miller, 989 F.2d
at 1463 (citation omitted); see also 45 U.S.C. § 52 (authorizing damages where an “injury . . .
result[s] in whole or in part from . . . negligence”).
                   b.       Summary Judgment Was Improper
        Plaintiff has presented sufficient evidence to create a genuine issue of material fact as to each
element of her Jones Act claim: (1) the kitchen was unreasonably dangerous; (2) the dangerous
condition caused Plaintiff to fall; and (3) Defendants should have known about the dangerous
condition. As discussed above in relation to the unseaworthiness claim, Plaintiff has offered
sufficient evidence that her work area was unreasonably dangerous and that the dangerous
conditions caused her to fall. This analysis applies equally to her Jones Act claim. In fact, the
requisite level of causation is lower under the Jones Act. Additionally, there is sufficient evidence
that Defendants should have been aware of the dangerous condition of their kitchen. Spills in a
kitchen are reasonably foreseeable, and Defendants should know what type of equipment their
kitchen contains, i.e., the absence of grease mats and containers with handles. See Ribitzki, 111
F.3d at 663-64 (holding that a ship owner was on constructive notice of permanent conditions on
ship). Therefore, Plaintiff’s Jones Act claim should have been submitted to the jury. See id.
         4.        Plaintiff’s Alleged Negligence
       Plaintiff’s alleged negligence does not provide a proper basis for summary judgment.
Maritime law espouses a system of comparative negligence, in which a plaintiff’s negligence does
not preclude recovery. The only exception to this rule is the primary duty doctrine, which has no
application in this case.
                   a.       System of Comparative Negligence
       Maritime law espouses a system of comparative negligence. Miller, 989 F.2d at 1459-63.
“This defense requires . . . evidence that the seaman chose to perform a task in a manner that placed
him in danger despite the fact that there were alternative means available to him” Wilson v.
Maritime Overseas Corp., 150 F.3d 1, 11 (1st Cir. 1998) (citing Burden v. Evansville Materials,


         4
           “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain
an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying
or extending the common-law right or remedy in cases of personal injury to railway employees shall apply . . . .”
No. 05-5185           Churchwell v. Bluegrass Marine, et al.                                   Page 8


Inc., 840 F.2d 343, 346 (6th Cir. 1998)). If such evidence exists, the issue of the plaintiff’s
comparative negligence is submitted to the jury and the plaintiff’s damages are reduced by the
degree of fault that the jury assigns to plaintiff’s behavior. Miller, 989 F.2d at 1461-62. It is well-
established that comparative negligence applies to unseaworthiness claims as well as Jones Act
claims. Id. at 1461-6 (citing Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09 (1953)); see also
Cook, 53 F.3d at 741.
        The doctrine of contributory negligence, however, does not preclude a plaintiff from
complete recovery on unseaworthiness or Jones Act claims. Pope & Talbot, Inc. v. Hawn, 346 U.S.
406, 408-09 (1953). “The harsh rule of the common law under which contributory negligence
wholly barred an injured person from recovery is completely incompatible with modern admiralty
policy and practice. Exercising its traditional discretion, admiralty has developed and now follows
its own fairer and more flexible rule which allows such consideration of contributory negligence in
mitigation of damages as justice requires.” Id.; see also 45 U.S.C. §53 (abolishing contributory
negligence as a bar to recovery in FELA and Jones Act claims). Similarly, assumption of risk may
not be raised as a defense in either type of action, even to prevent partial recovery. See Burden, 840
F.2d at 346; 45 U.S.C. § 54 (abolishing assumption of risk as a defense to negligence in FELA and
Jones Act suits).
        In this case, Defendants offer evidence that Plaintiff’s own negligence caused her injury.
As discussed above, contributory negligence does not bar recovery on Jones Act and
unseaworthiness claims. Maritime law espouses a system of comparative negligence in which the
plaintiff’s damages are reduced by the plaintiff’s degree of fault. Thus, the jury should be instructed
on comparative negligence and allowed to determine whether Plaintiff was negligent and, if so, the
degree of Plaintiff’s fault for her injuries. Plaintiff’s alleged negligence, however, does not bar
recovery. See Ribitzki, 111 F.3d at 662 (holding that the plaintiff’s negligence does not “cancel out”
the defendant’s negligence).
         Defendants cite the First Circuit’s decision in Wilson to support their argument that
Plaintiff’s alleged negligence is a complete bar to recovery. In Wilson the First Circuit stated,
“contributory negligence can be a complete defense when a jury finds that the plaintiff’s own
negligence was the sole proximate cause of the injuries.” 150 F.3d at 11. Defendants’ argument
fails for two reasons. First, it is far from clear that Plaintiff was negligent and that her negligence
was the sole cause of her injuries. Second, we find the First Circuit’s argument unpersuasive. The
First Circuit’s analysis confuses the concepts of contributory negligence and proximate causation.
In order to reach the issue of contributory negligence, a plaintiff must first establish a prima facie
case of the defendant’s negligence. Restatement (Second) of Torts § 463 (1965) (defining
contributory negligence as negligence that combined with the defendant’s negligence causes the
plaintiff’s harm). The prima facie case must include evidence that the defendant’s breach
proximately caused the plaintiff’s injuries. Restatement (Third) of Torts § 6 cmt. b (2005). Where
the evidence indicates that the plaintiff’s own negligence was sole proximate cause of the plaintiff’s
injuries, then the plaintiff cannot establish a prima facie case. See id. In such cases, the plaintiff
does not lose because of his or her contributory negligence but rather because the defendant was not
negligent.
               b.      The Primary Duty Rule
        In contrast to comparative negligence, the primary duty rule provides ship owners with a
complete defense against Jones Act and unseaworthiness claims. “The primary duty rule provides
that a ship’s officer may not recover against his employer for negligence or unseaworthiness when
there is no other cause of the officer’s injuries other than the officer’s breach of his consciously
assumed duty to maintain safe conditions aboard the vessel.” Wilson, 150 F.3d at 11 (citing Walker
v. Lykes Brost. S.S. Co., 193 F.2d 772, 773 (2d Cir. 1952). “[A]n instruction on the primary duty
No. 05-5185           Churchwell v. Bluegrass Marine, et al.                                  Page 9


rule must be given if the evidence establishes a genuine issue of controversy as to whether [the
plaintiff] owed a duty to the defendants, whether he breached the duty, and whether the breach was
the sole proximate cause of his injury.” Id. (emphasis in original). “[T]he primary duty rule does
not bar recovery where the plaintiff breached his duty but the ship’s owner was also independently
at fault.” Id. In such cases, the jury must apply the doctrine of comparative negligence. See id.
        The primary duty rule has no place in this case. In order for the primary duty doctrine to
apply, the defendant must offer evidence that the Plaintiff “consciously assumed [the] duty to
maintain safe conditions aboard the vessel.” Wilson, 150 F.3d at 11. There is absolutely no
evidence that Plaintiff consciously assumed any such duty. See Ribitzki, 111 F.3d at 665-666
(“[T]he rule only applies to a knowing violation of a duty consciously assumed as a term of
employment.”); cf. Malefant v. Beatty St. Props., Inc., 328 F. Supp. 668 (S.D. Tex. 2004) (holding
that the primary duty rule precluded recovery where the plaintiff slipped because of missing non-
skid tape, which it was the plaintiff’s duty to insure was in place). Therefore, the primary duty rule
does not make summary judgment proper in this case.
        In summary, the district court erred in granting summary judgment because Plaintiff has
offered sufficient evidence to create a genuine issues as to all elements of Plaintiff’s
unseaworthiness and Jones Act claims. Additionally, neither contributory negligence nor the
primary duty rule render summary judgment proper in this case because the doctrine of contributory
negligence does not apply under maritime law and because the primary duty doctrine does not apply
on the facts of this case.
                                              III.
                                          CONCLUSION
        For the foregoing reasons, we REVERSE the district court’s grant of summary judgment
in favor of Defendants on Plaintiff’s unseaworthiness and Jones Act claims and REMAND for trial.
