Opinion
No. 53136-1-I
Filed: November 29, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-2-32117-1. Judgment or order under review. Date filed: 09/08/2003. Judge signing: Hon. Terry Lukens.
Counsel for Appellant(s), William D Webster (Appearing Pro Se), 1345 California Avenue, Port Orchard, WA 98366.
Counsel for Respondent(s), Catherine Hendricks, Assistant Attorney Gen, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
Michael Augustin Jr Nicefaro, Office of The Attorney General, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
After a trial to the court on claims of negligence under the Jones Act and of unseaworthiness, William Webster appeals the judgment in favor of the Washington Department of Transportation, Marine Division. Webster challenges the law applicable to this case, the sufficiency of the evidence, and the trial court's denial of his motion to reconsider based on the trial judge's failure to recuse himself. We find no error and affirm.
FACTS
William Webster has worked on ferry boats since 1987, when he began working for the Alaska State Ferries as an engine room wiper and later as an oiler. He worked in Alaska until 1996, when he came to work for the Washington State Ferries (WSF). Webster worked as an oiler on several WSF vessels and has been on the MV Klahowya since June of 1999.
Because Webster's claims concern the action and/or failure to act of the Washington State Ferries, we will refer herein to the respondent generally as WSF.
Webster worked in the engine rooms of vessels where the noise level exceeded industry standards, and as a result he routinely wore both earplugs and ear muffs designed to reduce his noise exposure to acceptable levels. While Webster worked for the Alaska State Ferries, he received hearing tests that documented a slight hearing loss in his right ear and a significant hearing loss in his left ear. This hearing loss was reflected in the baseline hearing test he received when he began work at WSF.
In compliance with the WSF hearing conservation program, Webster wore double hearing protection at all times while working for WSF. Although the WSF hearing conservation program prescribed annual hearing tests, Webster's tests occurred at 17- and 22-month intervals. Between 1990 and 2002, Webster's hearing tests showed relatively little change, with a loss in the left ear in the 2002 test that may have been a threshold shift, or an abnormal result caused by a cold, a single recent exposure to loud noise, or some other undetermined cause.
In 1999, Webster began to hear a sound like a jet engine or the Klahowya's turbochargers in his ears. The sound grew progressively worse and interfered with Webster's concentration and reading. The sound was diagnosed as tinnitus, and Webster received advice on several means of attenuating its effect.
The etiology of tinnitus is uncertain; it can be caused by exposure to loud noise either in a single incident or over time, by stress, or by a virus or other physical condition such as high blood pressure or high cholesterol. It also becomes more frequent with aging. There is no known safe level of noise exposure that protects against the onset of tinnitus. Tinnitus can develop long after noise exposure, and there is no way to determine definitively when the noise exposure causing the tinnitus occurred. Webster has been exposed in the past to loud noise with inadequate ear protection while shooting guns for recreation and while he was in Coast Guard Boot Camp. He has suffered significantly from stress. He took a stress relief course in the 1980s, and has stated that he felt so stressed that his head was `gonging' after the Nisqually earthquake.
On December 18, 2000, Webster filed a complaint against WSF for negligence and unseaworthiness resulting in hearing loss and tinnitus. On April 24, 2002, the trial court entered an agreed order granting WSF's motion for summary judgment with respect to the hearing loss and excessive noise level claims, and only the tinnitus claim went to trial. After a trial to the court on the issues relating to Webster's tinnitus, the court filed Findings of Fact and Conclusions of Law and entered judgment in favor of WSF on July 8, 2003.
On July 17, 2003, Webster filed a motion for reconsideration or new trial on the issue of the effectiveness of hearing protection devices. On July 24, 2003, Webster filed an objection to WSF's cost bill. The trial court denied the motion for reconsideration but sustained Webster's objections to WSF's cost bill, and ordered that the judgment be corrected to reflect changes in costs. A revised judgment correcting the costs was filed on September 8, 2003.
On September 19, 2003, by which time he was acting pro se, Webster filed a second motion for reconsideration based on the trial judge's failure to recuse himself. The trial court denied this motion. Webster appeals, challenging the trial court's use of the correct law, the sufficiency of the evidence, and the trial judge's failure to recuse because of ex parte contact with defense counsel and bias. Webster does not challenge the order on summary judgment dismissing the hearing loss and excessive noise level claims.
MOTIONS
WSF filed a motion to supplement the record for appeal on June 21, 2004, and Webster filed a motion to supplement the record and for sanctions on July 7, 2004. These motions are, to some extent, duplicative. We grant both parties' motions insofar as they apply to the Personal and Confidential letter and to the Memorandum of Phone Conversation with Asst. AG Richmond dated August 13, 2002 (Appendix A to WSF's brief); to the e-mail from Linda Fredericks (ATG) and the attached letter dated August 27, 2002 (Appendix B to WSF's brief); to the Declaration of Linda J. Dunn, the e-mail from Linda Dunn (ATG) dated August 28, 2002, and the calendar page dated September 5, 2002 (Appendix C of WSF's brief); letter dated September 3, 2002 (Appendix D to WSF's brief); and to the Personal and Confidential letter dated September 17, 2002 (Appendix E to WSF's brief). We deny the motions as to all other documents, and we deny Webster's motion for sanctions.
Webster also filed a motion to supplement the record on July 19, 2004; this motion was denied by a separate order. Webster then filed a motion to modify, and this motion was denied.
Webster filed another motion to supplement the record on October 19, 2004. On November 8, 2004, WSF moved to strike any material from unpublished cases included in Webster's additional authorities. Webster filed an objection to WSF's motion to strike the unpublished portions of his additional authorities on November 10, 2004. We grant WSF's motion to strike unpublished material and grant the remainder of Webster's motion to present additional authority.
DISCUSSION 1. Applicable Law
Webster contends that the trial court failed to properly apply the standard of proof under the Jones Act by requiring `ordinary negligence' rather than `slight negligence.' Although there had been some confusion as to the proper standard of care in Jones Act cases, the confusion was cleared up and the proper standard was set out in Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997). The court in Gautreaux noted that seamen are afforded rights parallel to those of railway employees under the Federal Employers' Liability Act [which provides that] "every common carrier by railroad . . . shall be liable in damages . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.'
[In assignment of error 13, Webster asserts he has a cause of action under FELA. As stated here, rights similar to those under FELA are afforded him under the Jones Act.]
Id. at 335 (citation omitted). Although some courts subsequently interpreted the term `in whole or in part' to include `slight negligence,' this phrase actually modifies only the causation aspect of the inquiry, not the negligence aspect.
This analysis is consistent with that used by the federal courts in Washington: To recover for negligence under the Jones Act, a plaintiff must establish by a preponderance of the evidence: "(1) negligence on the part of his employer . . ., and (2) that the negligence was a cause, however slight, of his injuries." Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993).
In its Decision Following Trial, the trial court properly stated and used the burden of proof cited above. We find no error in the trial court's decision as to the law pertinent to this case.
2. Sufficiency of the Evidence
Webster contends that WSF violated his statutory rights, that witness Mark Nitchman gave perjured testimony, that the effective noise reduction of ear muffs and ear plugs was improperly calculated, that wearing eyeglasses might affect the efficiency of ear muffs, that the Clayton Survey used to establish noise levels on the Klahowya was improperly admitted, that the trial court failed to cite or consider certain statutes, and that Washington Administrative Code requirements should not have been used because they conflict with and are preempted by Coast Guard recommendations. Most of these claims were not raised at trial, and we will not address them for the first time on appeal. Walker v. State, 121 Wn.2d 214, 218, 848 P.2d 721 (1993).
In making these arguments, Webster generally contends that the trial court erred in failing to consider all the evidence and in finding that WSF was not negligent. Webster further assigns error to the trial court's failure to ascertain the cause of his tinnitus but the dispositive issue at trial was whether WSF was negligent, not the specific cause of the tinnitus. Thus, the trial court was not required to find the specific cause of Webster's tinnitus.
Webster does not phrase his assignment of error as a challenge to the sufficiency of the evidence; but if we took his statement of the issue literally, we would not review it at all because the finder of fact is the sole judge of the weight and credibility of the evidence. Credibility determinations are for the trial court and the appellate court will not review them. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
We note that Webster does not assign error to any finding of fact or conclusion of law. RAP 10.3(g) requires `[a] separate assignment of error for each finding of fact a party contends was improperly made' and that `[t]he appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.'
A general challenge to the sufficiency of the evidence does not compel this court to search the entire record for evidence supporting each finding of fact. The appellant must state each finding he challenges and demonstrate by citation to the record and argument why the evidence is insufficient to support that finding. Citing only to facts that support the appellant's argument essentially asks this court to create a new set of facts and disregard those made by the trial court. Such action on our part would usurp the trial court's factfinding authority and waste the time of both courts, and fly in the face of the general rule that unchallenged findings of fact are verities on appeal. See, State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
The unchallenged findings of fact support the trial court's determination that WSF was not guilty of negligence. Webster's 1996 baseline test conducted when he began working for WSF documented a significant hearing loss that pre-dated his employment at WSF. WSF had a hearing conservation program to monitor noise levels on vessels, reduce excessive noise exposure, provide testing for employees, and provide hearing protection devices. Webster used double hearing protection in the form of earplugs and earmuffs during the entire time of his employment by WSF. In addition, he used double hearing protection while he was working for the Alaska Ferries on the MV Bartlett, which had greater levels of noise than the Klahowya. He knew how to use the hearing protection devices, and used them correctly. These facts provide substantial evidence supporting the trial court's conclusion that WSF reasonably assumed that it was providing adequate protection for Webster against noise-induced tinnitus and did in fact provide such protection.
3. Seaworthiness
Webster contends the Klahowya was not seaworthy because WSF installed new noise producing equipment without testing for noise levels, and because he received no training about hearing protection for an extended period of time. A shipowner has an absolute duty to provide a seaworthy ship. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960).
A seaworthy ship is one that is reasonably fit for its intended use. Id. at 550. To establish a claim for unseaworthiness, a plaintiff must show that the warranty of seaworthiness extended to him and his duties, that his injury was caused by a piece of the ship's equipment or an appurtenant appliance, that the equipment was not reasonably fit for its intended use, and that this unseaworthy condition caused his injury. Ribitzki v. Canmar Reading Bates, 111 F.3d 658, 664-65 (9th Cir. 1997); Miller v. Arctic Alaska Fisheries Corp., 133 Wn.2d 250, 264, 944 P.2d 1005 (1997).
The unchallenged findings of fact establish that WSF conducted a comprehensive noise survey on the Klahowya in 2000, after the engine change that Webster references in his brief, and that there was no excessive noise exposure for employees like Webster who used hearing protection equipment. Further, the findings of fact establish that there were several possible causes of Webster's tinnitus, and that the tinnitus could not be linked with any piece of equipment or appurtenant device on the Klahowya, since he properly used hearing protection equipment while at work. The trial court properly concluded that the Kalhowya was seaworthy.
4. Recusal
As noted above, Webster does not appeal the trial court's denial of his initial motions for new trial and recusal. RAP 2.4(a) provides that S[t]he appellate court will, at the instance of the appellant, review the decision or parts of the decision designated in the notice of appeal[.]' In addition, RAP 2.4(f) provides that `[a]n appeal from a final judgment brings up for review the ruling of the trial court on an order deciding a timely motion based on . . . CR 59 . . . (reconsideration, new trial, and amendment of judgments).'
Webster only appeals the trial court's denial of his second motion for reconsideration, which involved the trial judge's failure to recuse himself for what Webster called ex parte contact with defense counsel. But this ex parte contact did not pertain to the merits of this case. On August 2, 2002, both the Assistant Attorney General then assigned to the case and Webster's counsel attended a conference call with the court regarding rescheduling of the then-pending motion for summary judgment. The Assistant Attorney General's conduct during this conference caused the court to write a letter of complaint to Attorney General Christine Gregoire on August 13, 2002. By August 28, 2002, the Attorney General's Office had removed the offending Assistant Attorney General from the case and appointed a new one, and the trial judge was so notified. Subsequently, on September 3, 2002, the trial court met, ex parte, with the offending Assistant Attorney General and his supervisor. The meeting was devoted to the issue of the imposition of sanctions upon the offending attorney. Webster also asserted that the trial judge should have recused himself because of his past association with the Eastside Transportation Program, the Regional Transit Authority, the Puget Sound Regional Council, and the King County Charter Review Commission. CR 59(b) provides that `[a] motion for new trial or for reconsideration shall be served and filed not later than 10 days after the entry of the judgment.' (Emphasis added). The amended judgment was filed on September 8, 2003; the motion for reconsideration was filed on September 19, 2003, 11 days after the amended judgment. The motion for reconsideration was not timely filed. And even if the motion had been timely, it failed to set forth any evidence that the trial judge was prejudiced. See, In re Parentage of J.H., 112 Wn. App. 486, 496, 49 P.3d 154 (2002), review denied, 148 Wn.2d 1024 (2003), citing In re Marriage of Farr, 87 Wn. App. 177, 188, 940 P.2d 679 (1997) (The party moving for recusal must demonstrate prejudice on the judge's part). The trial court did not err in denying the motions for new trial and recusal.
Affirmed.
BECKER, J. and COLEMAN, J., Concur.