Opinion
No. 57814-6-I.
September 4, 2007.
Appeal from a judgment of the Superior Court for King County, No. 01-2-34950-3, Jay V. White, J., entered February 9, 2006.
Reversed and remanded by unpublished opinion per Schindler, A.C.J., concurred in by Coleman and Grosse, JJ.
Frank Caraska appeals the trial court's dismissal of his personal injury claims for damages against the State of Washington Department of Transportation Division of Washington State Ferries (the WSF). The trial court erred in narrowly construing the WSF's duty to protect its crew members from an intoxicated passenger and ignoring evidence supporting Caraska's Jones Act negligence and unseaworthiness claims. And because it is not clear that the trial court correctly applied the Jones Act slight evidence causation standard, we reverse and remand.
FACTS
Frank T. Caraska worked for the WSF as an able bodied seaman aboard the ferry M/V Klahowya. On June 4, 2001, at approximately 4:30 p.m., Caraska was loading passengers and automobiles onto the ferry at the Fauntleroy terminal in West Seattle. Garry Collins was one of the walk-on passengers in the second group to board the ferry.
Betty Anderson testified that when she sold Collins a ticket for the ferry, she thought he was intoxicated. Anderson said that Caraska was swaying and cursing, and was off-balance as he walked away. Shortly thereafter, Collins returned, still cursing. Anderson testified she did not know if he was cursing at her, or just in general, but that Collins accused her of not giving him the ticket he purchased. Anderson insisted that she gave him a ticket. They argued back and forth until she told him to look through his pockets and he found the ticket. When Collins walked away he continued cursing. Anderson said that because she was not threatened by Collins, she did not contact her supervisor about his behavior.
Jack Lane, who was working as a ferry ticket taker, first noticed Collins in the walk-on passenger waiting area. Lane said Collins appeared upset and was pacing around, uttering obscenities. Lane testified that Collins was obnoxious but was not threatening the passengers or acting in an aggressive manner. Lane could smell alcohol on Collins and he thought he was drunk. When Lane asked Collins to watch his language, Collins ignored him.
Two off-duty firefighters, Bob Morse and Larry Walters, observed Collins as they were waiting in the motorcycle holding area at the end of the dock. Morse testified that Collins "was not really speaking to anyone in particular, he was kind of flailing and carrying on, almost to himself, kind of loud, not really obnoxious to anyone in general, just being overall obnoxious." Morse said that when he was within three to four feet of Collins, he could smell alcohol on him. Morse also said that Caraska was aggressive in the way he walked. Based on the way Collins was acting, Morse was concerned that Collins could "be set off at any given time, I was afraid that passing by so close to him, that if I made eye contact or anything with him, I was afraid he might try and jump me while I was boarding on the ferry on the motorcycle, being as I was only a few feet away from him."
Walters also testified that Collins was mumbling to himself about Vietnam and was intoxicated. At some point, Walters saw Collins approach and harass a female passenger. Based on his experience as a firefighter, Walters said while Collins did not exhibit threatening or aggressive behavior toward anyone in particular, he was concerned that Collins could be a threat.
When the second group of passengers began boarding, Caraska noticed Collins was unsteady and was slowly walking down the ferry ramp, he told him that he did not have to hurry. In response, Collins stopped and gave Caraska a dirty look. Collins then staggered up to Caraska with his fist clenched and said "[d]on't `f' with me, I am a Vietnam vet." Because Caraska was concerned Collins was going to hit him, Caraska leaned over to put down the barricade net he was holding. As Caraska turned around, Collins punched Caraska in the back of his head with his fist and then jumped on his back. The two men fell onto the deck near the edge of the ferry with Collins on top. When Caraska hit the deck he jammed his elbow and injured his shoulder. Crew members and passengers were able to pull Collins off Caraska and restrain him, while the captain of the ferry called the police. When the police arrived they also had to physically restrain Collins while physically removing him from the ferry.
As a result of the assault, Caraska sprained his elbow and suffered serious injuries to his right shoulder. On August 31, 2001, Caraska underwent right shoulder open anterior acromioplasty and rotator cuff repair surgery.
On March 5, 2002, Caraska returned to full-time employment with the ferry.
On December 14, 2001, Caraska filed a complaint for personal injury damages against the WSF and Collins. In October 2002 the court entered a default judgment against Collins for approximately $411,000.
Collins is not a party to the appeal.
One week before the scheduled trial against the WSF, Caraska for the first time identified Jackson Beard as an expert witness. The court excluded Beard's testimony because of prejudice to the WSF.
After a three day bench trial, the court ruled that Caraska did not prove negligence under the Jones Act or unseaworthiness and dismissed Caraska's lawsuit against the WSF. Caraska appeals the trial court's dismissal.
ANALYSIS
Caraska contends the trial court erred in dismissing his Jones Act claim, 46 U.S.C. § 688, and his unseaworthiness claim for personal injury damages on three grounds: (1) the court erred in too narrowly construing the duty as set forth in the WSF policy related to intoxicated passengers, (2) the court ignored evidence supporting his negligence and unseaworthiness claims, and (3) the court did not correctly apply the Jones Act slight negligence causation standard in analyzing the evidence. Standard of Review
We review a trial court's decision following a bench trial to determine whether the findings are "supported by substantial evidence" and "whether the findings support the court's conclusions of law." Standing Rock Homeowners Ass'n v. Misich, 106 Wn. App. 231, 242-43, 23 P.3d 520 (2001). Substantial evidence is the quantum of evidence sufficient to persuade a rational, fair-minded person that the premise is true. Wenatchee v. Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). Unchallenged findings are verities on appeal. In re Marriage of Brewer, 137 Wn. 2d 756, 766, 976 P.2d 102 (1999). Because Caraska assigns error to three of the court's findings of fact, but does not provide argument in support of his challenge to these findings, we also treat these findings as verities on appeal. Valley View Indus. Park v. Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987). Jones Act Negligence
Because the findings as verities on appeal, we need not address Caraska's argument that the Jones Act "slight negligence" standard affects review of the findings.
The Jones Act provides a federal cause of action for an injured seaman and affords seamen the same remedy that railroad workers are entitled to under the Federal Employers Liability Act (FELA). 46 U.S.C. Appx. § 688 (1983). 46 U.S.C. Appx. § 688 (a) provides in pertinent part:
46 U.S.C. § 688(a) was amended in October, 2006. See 46 USCS § 30104.
[a]ny 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.
Under the FELA, carriers are liable for injuries "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51. In Ferguson v. Moore-McCormack Lines Inc., 352 U.S. 521, 523, 77 S. Ct. 457, 1 L. Ed. 2d 511 (1957), the United States Supreme Court adopted the "slightest" causation FELA standard for Jones Act cases, holding that "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Ferguson, 352 U.S. at 523 (quoting Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957)).
Washington allows WSF seamen to sue under the provisions of the Jones Act.
The state consents to suits against the department [of transportation] by seamen for injuries occurring upon vessels of the department in accordance with the provisions of section 688, title 46, of the United States code. The venue of such actions may be in the superior court for Thurston county or the county where the injury occurred.
RCW 47.60.210; See Hill v. Dep't of Transp., 76 Wn. App. 631, 637, 887 P.2d 476 (1995) (Jones Act applies to WSF seaman suing in state court).
The elements of a Jones Act negligence claim are duty, breach, notice, and causation. The only difference between a common law negligence claim and a negligence claim under the Jones Act is the standard for causation. "The quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence . . . and even the slightest negligence is sufficient to sustain a finding of liability." Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9 Cir. 1993). Under the Jones Act, negligence is a cause of an injury if it played any part, "however slight" in causing the injury. Ribitzki v. Canmar Reading § Bates, 111 F.3d 658, 662, 664 (9 Cir. 1997).
Caraska relies on two FELA cases, Armstrong v. Burlington N.R.R. Co., 139 F.3d 1277 (9th Cir. 1997) and Seeberger v. Burlington N.R.R. Co., 138 Wn.2d 815, 982 P.2d 1149 (1999), to argue that the slight evidence causation standard applies to each of the elements of a Jones Act negligence claim. But under Ferguson and Ribitzki, the slight causation standard applies only to causation. Armstrong does not mention Ferguson and does not overrule Ribitzki. And Seeberger does not support Caraska's argument because there the Washington court said the United States Supreme Court did not "speak of a relaxed standard of negligence but rather a relaxed standard of causation." Seeberger, 138 Wn.2d at 821.
Although the Seeberger court also concluded in that case the relaxed standard of evidence applied to breach of duty as well as causation, it does not control here because the Jones Act and FELA are controlled by federal law. See Haworth v. Burlington Northern § Santa Fe Ry., 281 F.Supp.2d 1207, 1210 (9th Cir. 2003).
A. Duty
The employer owes seamen a duty to provide a safe place to work under the Jones Act. Ribitzki, 111 F.3d at 662. But there must be some evidence that the employer knew or should have known of the unsafe condition. Havens, 996 F.2d at 218.
Here, there is no dispute that on June 4, 2001, Caraska was employed as an able bodied seaman working aboard the WSF ferry M/V Klahowya and was attacked and seriously injured by an intoxicated ferry passenger. It is also undisputed that the WSF owed Caraska a duty to provide a safe place to work and had adopted a Safety Management System (SMS) policy addressing intoxicated and disorderly passengers "[t]o ensure the safety and wellbeing of passengers and crew." According to the SMS policy, WSF employees must contact the police and inform the ship's captain if any passengers displays "symptoms of intoxication or illegal drug use and who are violent, disorderly, disruptive, or confrontational." There is also no dispute that Anderson and Lane did not contact the police, their supervisor, or the captain of the M/V Klalowya, Captain John O'Brien. Captain O'Brien testified that if he had been told about Collins' behavior, he would have prevented him from boarding the ferry.
The SMS policy was adopted in accordance with the Coast Guard regulations, 46 U.S.C. § 3201. 42 U.S.C. § 23201 requires a ship owner or employer to "establish and implement safeguards against all identified risk" and require communication between personnel on the ship and shore. See also 33 C.F.R. § 96.230(b).
Contrary to the WSF's argument that Collins' assault of Caraska was an isolated event, there was testimony at trial about other incidents when passengers assaulted crew members. For instance, Eric Trunnell, who has worked for WSF for twenty-five years, testified about three other assaults. Captain O'Brien also testified that he had been assaulted at least two times.
The trial court ruled that because Anderson and Lane believed Collins did not pose a threat or risk of danger to them, there was no duty to contact the police or the Captain about his behavior. Consistent with the trial court's narrow construction of the WSF's duty, in the findings of fact and conclusions of law, the trial court repeatedly focuses only on whether Collins was acting in a "threatening or aggressive manner." For instance, in conclusion of law No. 4, the court states:
As I previously found in Finding of Fact No. 7, the evidence produced at trial established that Collins, while drunk and obnoxious, did not act in a threatening or aggressive manner that would have put Anderson and Lane on notice that his ultimate assault on Caraska was a foreseeable act such that Anderson and Lane would have been required to take actions to prevent Collins from harming Caraska or others.
We conclude the trial court erred in narrowly construing the WSF policy and ignoring the language in the policy that required Anderson and Lane to contact the police and the captain if an intoxicated passenger is "disorderly, disruptive, or confrontational." We also conclude the trial court erred in disregarding the evidence at trial about whether Collins was "disorderly, disruptive, or confrontational." For example, Anderson testified that when Collins returned to the ticket booth and demanded another ticket, he was cursing and argued with her about whether she gave him a ticket. Lane also testified that Collins was disruptive. And Morse and Walters testified that Collins was obnoxious, walked aggressively and swayed as he boarded the ferry.
On remand in addition to addressing the evidence in the context of the duty as defined by the adopted SMS policy, the trial court should address Caraska's claim that the WSF breached its duty to implement the SMS policy by not properly training its employees. Below, Anderson said that she was trained to politely listen to the passengers unless it got "to a point where I can't get anywhere with them, then it is my job to call my supervisor." Anderson also testified that even if passengers are intoxicated, "I cannot keep them from going on the boat, if they were walking."
B. Causation
It is also not clear that the trial court correctly applied the Jones Act slight evidence causation standard. There is no mention of the Jones Act slight evidence causation standard in the written findings of fact and conclusions of law. And while the court mentions the Jones Act evidentiary standard in its oral ruling, it is still not clear that the court properly applied the Jones Act slight evidence causation standard. "If the trial court's findings are ambiguous, vague or incomplete, its oral decision may be used the aid in understanding the findings." Interlake Porsche Audi, Inc. v. Blackburn, 45 Wn. App. 502, 526, 728 P.2d 597 (1986). Because the record is inadequate to determine whether the court correctly applied the "slight evidence" causation standard to Caraska's Jones Act claim, on remand the court must apply the correct standard. See Interlake, 45 Wn. App. at 527. Unseaworthiness Caraska asserts the trial court also erred in dismissing his unseaworthiness claim. "[L]iability based upon unseaworthiness is wholly distinct from liability based on negligence" under the Jones Act. Usner v. Luckenbach Overseas Co., 400 U.S. 494, 498, 91 S. Ct. 574, 27 L. Ed. 2d 562 (1971). A ship owner has an absolute and nondelegable duty to furnish a seaworthy ship that is reasonably safe and fit for its intended use. Ribitzki, 111 F.3d at 664. A ship's condition of unseaworthiness can arise from a number of circumstances, including an understaffed or ill-trained crew. American President Lines, Ltd. v. Welch, 377 F.2d 501, 504 (9th Cir. 1967). As with Caraska's Jones Act negligence claim, we conclude the court failed to adequately address the evidence at trial about whether the WSF implemented and trained its employees on the SMS policy.
In its oral ruling, the court states that "[a] harder question then again, becomes well, when all is said and done, is there negligence, slight or other? If there is negligence, was that negligence a proximate cause of injuries suffered by Mr. Caraksa. . .[?]"
Exclusion of Expert Witness
Lastly, Caraska contends the court abused its discretion in excluding his expert witness. Caraska admits that he did not timely identify Jackson Beard as an expert witness but argues that the court abused its discretion by not considering and addressing a less severe sanction on the record. Because the court considered less severe sanctions on the record, we disagree.
A trial court has broad discretion in imposing discovery sanctions. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). But the court must clearly state on the record whether a lesser sanction is appropriate and that a party's refusal to obey a discovery order substantially prejudiced the opponent. Burnet, 131 Wn.2d at 494.
Here, when addressing the appropriate sanction, the court asked the WSF attorney "if the court sought some remedy as [Caraska] is suggesting, short of exclusion of the testimony, such as permitting a deposition at the plaintiff's expense, why would that be insufficient, or would it be insufficient?" In response, the attorney stated, "[i]t would be totally insufficient because it wouldn't do any good to find out what the expert says without the opportunity to retain an expert on behalf of the State to counter whatever their expert says, which should have been done a long time ago in the interrogatories. . . ." The court then ruled, "I am going to grant the motion to exclude Mr. Beard's testimony. . . . I think that it is too late, there has just not been an appropriate disclosure into the applicable rules and I am not persuaded that the problem would be cured by ordering a deposition now. . . ." In reaching this conclusion, the court concluded that the best the WSF could do was a last-minute deposition, but that it was still too late for the WSF to retain an expert to rebut Beard's opinion. Because the trial court expressly considered and rejected less severe sanctions on the record, it did not abuse its discretion in excluding Caraska's expert witness.
CONCLUSION
We reverse the trial court's decision to dismiss Caraska's Jones Act and unseaworthiness claims and remand for further proceedings consistent with our opinion.
WE CONCUR: