                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                      September 15, 2005 Session

                       MATTHEW BALLARD v. SERODINO, INC.

                         Appeal from the Circuit Court for Hamilton County
                               No. 02C843 Samuel H. Payne, Judge



                   No. E2004-02656-COA-R3-CV - FILED OCTOBER 31, 2005


Matthew Ballard filed this action pursuant to the federal Jones Act, seeking damages for the injuries
he sustained when he fell on the deck of a barge owned and operated by his employer, Serodino, Inc.
(“the defendant”). The jury returned a verdict assessing 75% of the fault to the plaintiff and 25%
of the fault to the defendant. As a consequence of the jury’s allocation of fault, the plaintiff was
awarded $37,500, i.e., 25% of the total damages found by the jury. The plaintiff appeals, arguing
that there is no material evidence to support a finding that he was 75% at fault. He also argues that
the trial court erred in failing to grant his motion for a directed verdict. We affirm.

             Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Affirmed; Case Remanded

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.

B. Stewart Jenkins, Chattanooga, Tennessee, for the appellant, Matthew Ballard.

Robert W. Sauser, Chattanooga, Tennessee, for the appellee, Serodino, Inc.

                                                   OPINION

                                                         I.

        The defendant owns and operates several barges and towboats on the Tennessee River. For
more than three years,1 the defendant employed the plaintiff as a deck hand on one of its towing
vessels. At all relevant times, the plaintiff was working at one of the defendant’s facilities on the
Tennessee River in Chattanooga. This facility, commonly known to the defendant’s employees as


         1
           The plaintiff was first employed by the defendant for approximately four months before leaving to serve a
criminal sentence. Upon his release from custody, the plaintiff returned to work for the defendant, where he remained
from September, 1999, until June, 2002.
“the fleet,” is a holding area for moored barges, i.e., those barges not then actively engaged in
commerce on the river. The fleet area is divided into two sections – one section is designated as the
holding area for barges loaded with commercial goods, while the other section is utilized to hold
empty barges. The moored barges are linked to one another by ropes, or lines, and then tied to a
work barge, which is the stationary barge closest to the bank of the river. At any given time, the
fleet’s configuration may span as many as six barges in width and five barges in length.

        At 11:00 p.m., on November 24, 2001, the plaintiff began a six-hour shift at the defendant’s
fleet facility in Chattanooga. The weather was described as misty. At approximately 11:30 p.m.,
the plaintiff set out on the routine task of inspecting and securing the lines which tied the empty
barges together. The plaintiff was equipped with a standard-size flashlight provided by the defendant
to assist him in his work. While walking across an empty flat barge, which was located four to five
barge-widths away from the shore and one to two barge-lengths down the river, the plaintiff stepped
in an oily substance, lost his footing, and fell. As a result of the fall, he suffered injuries to his low
back and left leg.

        The plaintiff filed suit against the defendant under the Jones Act alleging that his injuries
were proximately caused by the defendant’s negligence in failing to maintain its barges in a safe and
seaworthy manner and in failing to provide adequate lighting at the fleet facility. In its answer, the
defendant asserted that the plaintiff was at fault in failing to exercise reasonable and ordinary care
for his own safety. Specifically, the defendant alleged that the plaintiff was not paying attention to
where he was walking at the time of the accident.

        The case proceeded to trial before a jury. The jury returned the following verdict: (1) the
barge upon which the plaintiff fell was not “unseaworthy,” as that word is defined in the Jones Act;
(2) the plaintiff and the defendant were both negligent; (3) 25% of the fault was attributable to the
defendant; (4) 75% of the fault was that of the plaintiff’s; and (5) the plaintiff sustained total
damages in the amount of $150,000. Because the Jones Act provides for a system of pure
comparative fault, the plaintiff was awarded 25% of his total damages, or $37,500. The plaintiff
appeals.

                                                   II.

     The plaintiff urges us to hold that the trial court erred when it denied his Motion to Alter or
Amend and/or for a New Trial “where there is no material evidence to support a verdict of 75%




                                                   -2-
negligence on the part of the plaintiff.” He also contends that the trial court erred in denying his
motion for a directed verdict on the issue of his contributory fault.2

        Tennessee’s adoption of a modified comparative fault in negligence actions changed the
nature of the inquiry when a defendant alleges fault on the part of the plaintiff. The question is no
longer whether the plaintiff was guilty of any fault; rather, the question is whether – assuming the
plaintiff and the defendant are both guilty of fault that proximately causes the subject incident – the
fault of the plaintiff is equal to or greater than the fault of the defendant. Eaton v. McLain, 891
S.W.2d 587, 590 (Tenn. 1994). Thus, the issue under the Tennessee modified comparative fault
system is whether there is material evidence to support a finding that the plaintiff was guilty of at
least 50% of the fault. See Martin v. Drinnon, No. E2003-02106-COA-R3-CV, 2004 WL 1857098,
at *3 (Tenn. Ct. App. E.S., filed August 18, 2004), perm. app. denied, January 24, 2005. In the
instant case, however, since we are dealing with a pure comparative fault system, not Tennessee’s
modified comparative fault, the question presented by plaintiff’s first issue is whether there is
material evidence to support the jury’s finding that the plaintiff was 75% at fault, not whether the
plaintiff’s fault was equal to or greater than the defendant’s fault.

                                                             III.

        Like railway employees under the Federal Employers’ Liability Act, the Jones Act, codified
at 46 U.S.C.A. app. § 688(a) (2005), provides seaman with a cause of action for negligence when
injured in the course of employment. The Act provides, in pertinent part, as follows:

                   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
                   ....

Id. A suit under the Jones Act may be brought in a federal court, a state court, or any other court of
general common law jurisdiction. Carroll v. Choctaw Transp. Co., No. 92-154, 1995 WL 140818,
at *2 (Tenn. Ct. App. W.S., filed March 31, 1995) (citing 2 Martin J. Norris, The Law of Seamen
§ 30:25 (1985)). Although negligence under the Jones Act is determined using the traditional
reasonably prudent person standard, there is a reduced standard of causation which only requires the
plaintiff to show that the employer’s negligence was one cause, not necessarily the only cause, of his
injuries. Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th Cir. 2001).

         2
            W e note that the plaintiff also lists the following as an issue in his brief: “whether the trial court erred in
refusing Plaintiff’s request for a special jury instruction on unseaworthiness.” Though the plaintiff stated this issue in
the section of his brief entitled “Issues Presented For Review,” he failed to address it in the argument section of the brief.
See Tenn. R. App. P. 27(a)(7). W hen an issue is raised but ignored in the argument section of the brief, it is considered
waived. Bean v. Bean, 40 S.W .3d 52, 56 (Tenn. Ct. App. 2000); Blair v. Badenhope, 940 S.W .2d 575, 576-77 (Tenn.
Ct. App. 1996).

                                                             -3-
        As previously mentioned, a significant aspect of negligence cases brought under the Jones
Act is the treatment of the plaintiff’s contributory or comparative fault. The Jones Act employs a
pure comparative fault system, whereby “the damages recoverable are to be diminished in proportion
to the amount of negligence attributed by the jury to the employee . . . .” 32B Am. Jur. 2d Federal
Employers’ Liability, Etc. § 75; see also Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193,
1195 (6th Cir. 1980) (“[C]ontributory negligence is a valid defense in an action [under the Jones
Act], though it results in an allocation of fault on a comparative basis rather than a bar to recovery.”).
As opposed to Tennessee’s modified comparative fault requiring that the plaintiff be less at fault than
the defendant, a plaintiff in a Jones Act negligence case can recover 1% of its damages even if he
or she is 99% at fault. In commenting on the parameters of a plaintiff’s comparative fault under the
Jones Act, the Sixth Circuit has stated that there must be “evidence of some negligent act or
omission by the plaintiff other than his knowledgeable acceptance of a dangerous condition.” Tolar,
618 F.2d at 1196 (citation omitted). In other words, the plaintiff’s act of working in an inherently
dangerous environment, where the only choice is to face danger or quit one’s job, is not enough to
rise to the level of comparative fault. The plaintiff goes to great lengths to cite authority for the
proposition that an employee, under the Jones Act, is not considered negligent if he or she “assumes
the risk” of continuing to work in a dangerous environment where the employer has not provided safer
alternatives. See Tolar, 618 F.2d at 1195-96. We agree with this basic proposition, but we find that
the plaintiff’s reliance on the proposition is misplaced. In the instant case, the charge of
contributory, or comparative, negligence on the part of the plaintiff is not based on the plaintiff’s
continued self-exposure to the inherently dangerous work environment provided by the defendant.
If that were the case, we would agree that, had the defendant not provided a safe way to avoid the
accident, the plaintiff could not be faulted for choosing to continue to face the risks. Here, the
defendant’s contention of fault on the part of the plaintiff stems from the alleged failure of the
plaintiff to exercise the care ordinarily necessary under the circumstances, i.e., the plaintiff was
negligent in failing to give the attention necessary to walking across this unfamiliar barge on a dark
and misty night. Where work conditions contain frequent risks and hazards, a plaintiff is still
responsible for exercising ordinary care for his or her own safety.

                                                   IV.

         Our standard of review after a trial court approves a jury’s verdict is limited to determining
whether the record contains any material evidence to support the jury’s verdict. Tenn. R. App. P.
13(d). See also Washington v. 822 Corp., 43 S.W.3d 491, 494 (Tenn. Ct. App. 2000). The process
of ascertaining the evidentiary support for a jury’s verdict is extremely deferential to the verdict. See
Kelley v. Johns, 96 S.W.3d 189, 194-95 (Tenn. Ct. App. 2002). This narrow search for any material
evidence is a procedural safeguard to a litigant’s constitutional right of trial by jury; thus, it “requires
us to take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth
of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to
sustain the verdict.” D.M. Rose & Co. v. Snyder, 206 S.W.2d 897, 901 (Tenn. 1947); see Kelley,
96 S.W.3d at 194. This Court is not permitted to second-guess the jury’s findings by reweighing the
evidence to decide where it preponderates or to make our own credibility determinations. See



                                                    -4-
Electric Power Bd. of Chattanooga v. St. Joseph Structural Valley Steel Corp., 691 S.W.2d 522,
526 (Tenn. 1985).

        Like all factual determinations made by the jury, the jury’s fact-based allocation of fault3 is
reviewed pursuant to the “material evidence” standard. See Turner v. Jordan, 957 S.W.2d 815, 824
(Tenn. 1997); Henley v. Dale, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *6 (Tenn. Ct.
App. M.S., filed January 28, 2002). If the record before us is devoid of any material evidence
supporting the jury’s allocation of 75% of the fault to the plaintiff, this Court must set aside the
verdict below and remand for a new trial. On the other hand, if the record contains material evidence
to support the allocation of 75% of the fault to the plaintiff, the jury’s determinations must be
affirmed.

                                                              V.

                                                              A.

        The plaintiff contends that the trial court erred in its role as “thirteenth juror” by affirming
the jury’s allocation of fault because “[t]here is absolutely no evidence in the record to suggest that
[he] was not looking where he was going” or properly paying attention to where he was walking.
The crux of the plaintiff’s contention is that he did not see, and cannot be legally faulted for not
seeing, the oily substance because it “blended in” with the deck of the barge. So, as the plaintiff’s
argument goes, he was not negligent in failing to see and avoid the oil spill because a reasonably
prudent man under the same circumstances would have failed to see the spill and would have
proceeded as the plaintiff did.

        It is clear that whether the oily substance was visible and whether the plaintiff should have
seen it are questions of fact for the jury. See Strawn v. SCOA Indus., Inc., 804 S.W.2d 80, 82
(Tenn. Ct. App. 1990). Thus, we must focus our attention on whether there is material evidence to
support a finding that the plaintiff was at fault in failing to see, and avoid, the oily substance.

       Although the plaintiff had not previously worked aboard the particular barge on which he fell,
he had extensive work experience at the defendant’s fleet facility in Chattanooga. The plaintiff’s
prior experience at the fleet, which spanned his three years of employment, included similar
occasions where he worked at night, worked in inclement weather, and worked on unfamiliar barges.
The plaintiff testified that he was aware of the danger associated with working at the fleet. He


         3
            In a negligence action, after it is determined that both the plaintiff and the defendant are at fault, the jury must
consider several factors in allocating the appropriate percentage of fault between the parties. Eaton v. McLain, 891
S.W .2d 587, 592 (Tenn. 1994). Some of the relevant factors considered in assessing and allocating fault include the
following factual determinations: (1) the causal relationship between the defendant’s conduct and the plaintiff’s injury;
(2) the reasonableness of each party’s conduct in confronting a risk, i.e., whether the party knew of the risk, or should
have known of it; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the
injury to the plaintiff; and (4) the party’s particular capacities, i.e., age, maturity, training, and education. See Id.



                                                              -5-
further acknowledged that attentiveness was a requirement of the job because of the potential hazards
on the barges, i.e., the open spaces, spills, and other obstacles. On top of the plaintiff’s general
knowledge of the risks associated with his job, on the night in question, the plaintiff was the chief
of the deck crew, meaning that one of his primary duties that night was to make sure the deck was
clean and clear of safety hazards for himself and his crew members.

         Since the plaintiff claims the oil spill was not visible to a reasonably prudent person
exercising ordinary care, evidence regarding the physical characteristics of the spill and the adequacy
of the lighting at the defendant’s fleet facility are relevant. The proof established that the oil spill
was approximately the size of a small automobile and slightly darker in color than the surrounding
deck of the barge. Also in contrast to the surrounding area, water, presumably rainwater, had formed
beads on the surface of the oily substance.

        The fleet facility is illuminated by two halogen work lights operated on a sensor and affixed
to a pole on shore. One of the work lights is positioned to shine upon the moored loaded barges,
while the other shines upon the moored empty barges. Green warning lights, which do not provide
a substantial amount of illumination, are also affixed to a pole located on the stationary work barge.
In addition to these two permanent sources of light, the defendant provides its employees with a
standard-size flashlight to carry with them while working at night or in dimly-lit surroundings. So
that they might perform their tasks with the unimpeded use of both hands, most of the defendant’s
employees, including the plaintiff, secure the flashlight to their life vest in the shoulder area and
position the light to shine at an angle which illuminates the area in front of them.

        The plaintiff introduced expert testimony in an attempt to establish that the outdoor lighting
provided by the defendant was insufficient to permit the plaintiff to see the spill. Using industrial
safety standards and his expertise, the plaintiff’s expert testified that the minimum amount of
illumination necessary for outside walking areas is somewhere between one to five foot-candles.4
He then testified that he obtained a reading of twelve one-hundredths of one foot-candle, or .12, at
the brightest spot on the stationary work barge, which is closer to the permanent light sources than
the actual barge on which the plaintiff fell. The inference suggested by the witness’s testimony was
that the barge with the oil spill was inadequately lit because it received even less than twelve one-
hundredths of one foot-candle. However, this evidence fails to account for the illumination provided
by the flashlight. When asked how much light a standard-size flashlight can emit, the plaintiff’s
expert stated that the flashlight’s illumination could range between five to fifteen foot-candles. When
considered in conjunction with the expert’s earlier testimony, reasonable minds could conclude that
even the bare minimum of light thrown by the flashlight (i.e., five foot-candles) adequately illuminated
the plaintiff’s walking area based on the expert’s earlier stated range of one to five foot-candles.

       The plaintiff testified that, prior to the fall, he was properly surveying his path by looking
down at the deck of the barge, which was illuminated by the flashlight. He stated that the flashlight
illuminated a path some 10 to 12 feet in front of him. He also stated that, other than completing his


        4
            A “foot-candle” is a common unit of measurement used in assessing brightness.

                                                        -6-
task of checking the lines on the empty fleet, his attention was not diverted. He was not talking on
his radio to coworkers, his hands were free, and since the oil spill was located in the middle of the
barge, he was not apprehensive about falling overboard. The proof established that, after the fall,
the oil spill was distinguishable by pointing the flashlight directly upon the area of the spill.
Furthermore, the expert testimony regarding the lighting conditions could lead one to infer that the
light emitted from the flashlight was enough to allow the plaintiff to see the oil spill as he
approached it.

        The plaintiff’s theory that he was not 75% to blame for the accident is not an implausible
theory; but the weighing of evidence and witness credibility is not within our prerogative. Given his
experience and knowledge in working under similar conditions, the physical attributes of the spill,
the lighting provided by the defendant, and the illumination provided by his own flashlight, we
cannot say that there is no material evidence which would support a finding that the plaintiff should
have seen, and avoided, the oil spill if he was actually looking where the flashlight was pointed.

         In addition to finding material evidence to support a finding that the plaintiff was guilty of
fault in the dynamics of his fall, we also hold that the same evidence supports a finding that he was
chargeable with 75% of the total fault. The fall occurred on a flat, unloaded barge. The plaintiff
could have easily walked around this large spill. Because of his training, experience, and supervisory
position on the evening in question, he should have taken the necessary steps to avoid the oily
surface. When the various Eaton allocation-of-fault factors are considered, see Eaton, 891 S.W.2d
at 592, we conclude that there is material evidence to support the jury’s allocation of 75% of the fault
to the plaintiff.

        Thus, after reviewing the record before us, taking the strongest legitimate view of all the
evidence to uphold the jury’s verdict, assuming the truth of all that tends to support the jury’s
verdict, discarding all evidence to the contrary, and allowing all reasonable inferences to sustain the
verdict, we conclude there is material evidence to support the verdict as rendered by the jury.

                                                   B.

        The plaintiff also contends that the trial court erred in denying his motion for directed verdict
on the issue of his alleged fault. In essence, the plaintiff argues that the lack of direct evidence
establishing that he was not paying attention should have precluded the trial court from submitting
the issue of his fault to the jury. We disagree.

        In order for this Court to conclude that the trial court erred in denying the plaintiff’s motion
for directed verdict, we must first conclude, after viewing the evidence in the defendant’s favor, that
the only reasonable conclusion a jury could reach is that the plaintiff was not guilty of any fault.
Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994); see also 32B Am. Jur. 2d Federal
Employers’ Liability, Etc. § 75 (“The extent to which damages should be reduced by reason of the
plaintiff’s contributory negligence in actions by seaman or railroad employees under the applicable
federal statutes is for the determination of the jury, except where the evidence is uncontroverted or


                                                  -7-
admits of only one reasonable conclusion.”). “If there is any doubt as to the proper conclusions to
be drawn from the evidence, the motion must be denied.” Eaton, 891 S.W.2d at 590 (citing Crosslin
v. Alsup, 594 S.W.2d 379 (Tenn. 1980)). In light of our previous discussion of the material evidence
supporting a finding that the plaintiff should have seen the oil spill, we must disagree with the
plaintiff’s contention that the trial court erred in denying his motion for a directed verdict.

                                                VI.

      The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Matthew Ballard. This case is remanded to the trial court for enforcement of the trial court’s
judgment and for collection of costs assessed below, all pursuant to applicable law.



                                                         _______________________________
                                                         CHARLES D. SUSANO, JR., JUDGE




                                                -8-
