Decided: July 17, 2013
The Fourth Circuit Court of Appeals affirmed the district court’s judgment entered in favor of Plaintiff Richard Bunn, who slipped and fell on Defendant’s ship, under § 5(b) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905 (b) (the “Act”).
On February 16, 2007, longshoreman Richard Bunn (“Bunn”), who worked for the stevedore, CNX Marine Terminals Inc. (“CNX”), slipped on ice and injured himself while loading coal onto Oldendorff’s ship (“the ship”). That night, the CNX shift supervisor informed the chief officer that CNX employees intended to start loading operations, but could not do so until ice had been cleared from the path. The chief officer responded that the ship’s crew would salt and sand the path. Once Bunn was informed that the paths had been cleared, he boarded the ship and began loading coal. When loading hatch number three, Bunn slipped on ice and fell. Bunn’s co-worker told the chief officer that the ship was icy and needed to be salted. The chief officer responded that the salt supply was limited. When Bunn’s co-worker returned to load coal into hatch number three, he noticed that it was still icy. At the close of Bunn’s case, and again at the conclusion of all the evidence, Oldendorff moved for judgment as a matter of law, which the district court denied. The jury found Oldendorff negligent, whereupon Oldendorff renewed its motion and moved alternatively for a new trial, which the court also denied.
On appeal, Oldendorff raised two principal assignments of error: (1) the district court erred in denying the motions for judgment as a matter of law and (2) the district court misinformed the jury about the applicable law, and therefore erred in denying the motion for new trial.
Oldendorff based its appeal of denial on the motion for judgment as a matter of law on the fact that the icy deck was an open and obvious danger, and that Oldendorff only had a responsibility to warn of hidden dangers. The Court of Appeals found that while this was a correct statement of the law, liability did not depend on the duty to warn, as this was a simple case of primary negligence. Section 5(b) of the Act permits a longshoreman to “seek damages in a third-party negligence action against the owner of the vessel on which he was injured.” In Scindia, the Supreme Court outlined the three general duties ship owners owe to longshoremen, one of which is the “turnover duty,” which was at issue in this case. The turnover duty relates to the condition of the ship upon the commencement of stevedoring operations. The turnover duty has two components: (1) the duty to exercise ordinary care under the circumstances to have the ship and its equipment in such condition that an experienced stevedore could carry on its cargo operations with reasonable safety and (2) the duty to warn the stevedore of hazards that are known or should be known by the vessel, are likely to be encountered by the stevedore, and are not known by the stevedore and would not be obvious to or anticipated by him. In other words, the ship owner has a duty to warn only of latent hazards. However, the argument turned not on the openness or obviousness of the danger, but on the circumstances surrounding it. The district court did not dispute the validity of the open and obvious rule or its applicability to ice on the deck under general circumstances. The district court reasoned that while ice on the deck may have been open and obvious, it was not obvious that the ship owner would promise to take care of the hazard, and then not do so. The Court of Appeals found no error in the district court’s reasoning holding that a ship owner may still be liable for promising, but failing, to remedy a dangerous condition and that principle comports with accepted principles of tort law. This liability also comports with a well-settled principle of the turnover duty: the scope of that duty depends on the circumstances of each particular case. When the circumstances include a promise to remedy a dangerous situation, the ship owner may fail to exercise reasonable care if it does not fulfill its promise.
With regards to its second challenge that the district court misinformed the jury about the applicable law, Oldendorff reasoned that the court’s refusal to give the company’s requested open and obvious instruction deprived the jury of a full and accurate understanding of the law. The Fourth Circuit reviewed the trial court’s jury instructions from an abuse-of-discretion standard. The court held that Oldendorff failed to preserve a challenge to the jury instructions, as the company provided no record of an objection to the district court. Oldendorff provided only its requested instructions, and those that the court ultimately gave the jury, which does not preserve error for appeal. Further, the court indicated that even if it were to reach the issue, it would find it meritless, as the district court properly informed the jury of the open and obvious law.
– Sarah Bishop