Sobieski, Paul v. IN Harbor Steamship

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3001

PAUL SOBIESKI and GAIL SOBIESKI,

Plaintiffs-Appellants,

v.

ISPAT ISLAND, INC., INDIANA HARBOR

STEAMSHIP CO., LLC, CENTRAL MARINE

LOGISTICS, INC., and M/V JOSEPH L. BLOCK,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Indiana, Hammond Division.

No. 2:01-CV-617-PRC—Paul R. Cherry, Magistrate Judge.

____________

ARGUED JANUARY 5, 2005—DECIDED JUNE 29, 2005

____________

Before KANNE, ROVNER, and SYKES, Circuit Judges.

KANNE, Circuit Judge. Plaintiffs Paul and Gail Sobieski

twice filed suit in federal court, advancing various claims

under the Jones Act and general maritime law relating to

a peculiar incident that took place aboard the M/V Joseph

L. Block. A grant of summary judgment and a stipulation of

dismissal eliminated most of the Sobieskis’ claims against

most of the defendants in the two cases. The district court

2 No. 04-3001

then consolidated the two cases and later dismissed the

remaining claims. The Sobieskis appeal the grant of

summary judgment on their Jones Act claims. We affirm.

I. Background

The circumstances giving rise to this suit, as alleged by

Paul Sobieski, are decidedly odd. On the afternoon of

April 4, 2001, the M/V Joseph L. Block was underway on its

Lake Michigan route from South Chicago, Illinois, to

Muskegon, Michigan. Sobieski,1 a crewman assigned to the

ship’s engine department, completed a coal load on the

ship’s conveyor system and then headed to the recreation

room to drink a cup of coffee. Sobieski eased back in a chair

to relax and watch television for a bit. Unbeknownst to

Sobieski, however, a figure silently crept up behind him as

he watched the television. Suddenly, before Sobieski could

react, the figure seized Sobieski’s head between its hands.

The lurking figure was Sobieski’s crewmate, Mike

Barrett. And what Barrett did with Sobieski’s head was

bizarre, to say the least. As Sobieski alleged in his com-

plaint and repeats in his opening brief, “Barrett snuck up

behind his co-employee, Paul Sobieski, placed his hands on

each side of Mr. Sobieski’s head, and forcefully slammed it

to the side against Mr. Sobieski’s own right shoulder caus-

ing his neck to be injured.” In short, Barrett cracked, or

popped, Sobieski’s neck—or, as Sobieski styles it, Barrett

“tractioned [Sobieski’s] neck, chiropractor style . . . .”

Sobieski claims that, as a result of this unrequested and

unexpected neck “tractioning,” he suffered intense pain—

he immediately “fell onto one knee in front of his chair, with

his eyes watering and a burning sensation in his neck.”

1

We will use “Sobieski” to denote Paul Sobieski, and “the

Sobieskis” to denote the plaintiffs, Paul and Gail Sobieski.

No. 04-3001 3

After a few seconds in which to recover, Sobieski demanded

to know why Barrett had done what he did. Barrett replied,

“Look, I do it to myself all the time,” and he proved it by

“maneuvering” his own head in the same manner.

For days after this strange incident, Sobieski continued

to suffer various after-effects of the neck-cracking—includ-

ing numbness and tingling in his neck, left leg, arm, and

side. Sobieski’s physical problems worsened after he went

ashore on April 15, 2001. For several months, Sobieski

sought and received treatment for these ailments from

several medical specialists. During the course of this treat-

ment, Sobieski’s employer, Central Marine Logistics, Inc.

(“Central Marine”), paid one-hundred percent of his medical

bills. It also paid Sobieski for 56 hours of work a week while

the M/V Joseph L. Block was at sea, and paid him at the

sickness and accident rate while the vessel was laid up.

On November 2001, however, matters took a turn for the

worse. Sobieski experienced a “lock up pinch” in his neck

and fell down his basement stairs. As a result, Sobieski

broke his neck in three places and required multiple sur-

geries and rehabilitation. Central Marine stopped paying

full medical coverage, so Sobieski had to rely on medical

insurance to pick up coverage.

These events gave rise to a tangle of claims in federal

court. In brief, the Sobieskis filed two separate complaints

advancing various negligence claims under maritime law,

including unseaworthiness, “maintenance and cure,” and

negligence under the Jones Act. Following a grant of

summary judgment that disposed of most of the claims in

the Sobieskis’ first suit (including the Jones Act negligence

claims), the parties stipulated to partial dismissal of most

of the remaining claims. The two suits were then consoli-

dated, and the district court dismissed all of the Sobieskis’

remaining claims.

4 No. 04-3001

This appeal challenges the district court’s grant of

summary judgment on the Jones Act claims in favor of

Sobieski’s employer, Central Marine.

II. Discussion

The district court granted summary judgment on the

Sobieskis’ Jones Act claims, so our review is de novo. Scott

v. Trump, Ind., Inc., 337 F.3d 939, 945 (7th Cir. 2003).

Summary judgment is appropriate when the record, viewed

in the light most favorable to the nonmoving party, shows

“that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Wilson v. Chi.,

Milwaukee, St. Paul & Pacific R.R., 841 F.2d 1347, 1354

(7th Cir. 1988) (“Jones Act[ ] cases deciding summary judg-

ment on ‘scope of employment’ issues apply the traditional

summary judgment standards.”) (citations omitted).

We review briefly the Jones Act before proceeding to the

merits. Prior to the enactment of the Jones Act, seamen

were entitled only to “maintenance and cure” from their

employer for injuries incurred “in the service of the ship”

but not damages for the negligence of the ship’s master or

a fellow crewman. See Chandris, Inc. v. Latsis, 515 U.S.

347, 354 (1995) (citations omitted). Congress enacted the

Jones Act to create a federal negligence claim for seamen

injured in the course of employment. 46 U.S.C. app.

§ 688(a). The Jones Act provides this heightened legal pro-

tection to eligible seamen because of their exposure to “the

perils of the sea” in the course of their duties. Chandris, 515

U.S. at 354. The act by its terms extends the protections of

No. 04-3001 5

the Federal Employer’s Liability Act (“FELA”)2 to seamen,

and thus FELA caselaw is broadly applicable in the Jones

Act context. See Greenwell v. Aztar Ind. Gaming Corp., 268

F.3d 486, 489 (7th Cir. 2001); Hernandez v. Trawler Miss

Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999) (“[T]he

Jones Act gives seamen rights that parallel those given to

railway employees under the FELA.”).

Thus, under the Jones Act, an eligible seaman (or a per-

sonal representative if the seaman is deceased) may file an

in personam action in federal court against his employer for

injuries suffered due to the employer’s negligence. See

Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441

(2001); Wingerter v. Chester Quarry Co., 185 F.3d 657, 666

n.5 (7th Cir. 1998) (per curiam). In addition, under the doc-

trine of respondeat superior, a Jones Act employer may be

liable for the negligence or intentional torts of its em-

ployees. Greenwell, 268 F.3d at 489; Lancaster v. Norfolk &

W. Ry., 773 F.2d 807, 818 (7th Cir. 1985); Landry v. Oceanic

2

FELA in relevant part provides that “[e]very common carrier by

railroad . . . shall be liable in damages to any person suffering

injury while he is employed by such carrier in such commerce” for

“such injury or death resulting in whole or in part from the

negligence” of the railroad carrier. 45 U.S.C. § 51. Among other

things, FELA dispenses with several common law tort defenses—

like the fellow-servant rule—that previously barred recovery by

injured workers. See Consol. Rail Corp. v. Gottshall, 512 U.S. 532,

542-43 (1994). Nevertheless, what constitutes negligence under

FELA is determined by principles of common law. See id. at 543

(“[FELA] is founded on common-law concepts of negligence and

injury, subject to such qualifications as Congress has imported

into those terms[.]”) (quotation marks and citation omitted); see

also id. at 544 (“[A]lthough common-law principles are not

necessarily dispositive of questions arising under FELA, unless

they are expressly rejected in the text of the statute, they are

entitled to great weight in our analysis.”).

6 No. 04-3001

Contractors, Inc., 731 F.2d 299, 303 (5th Cir. 1984); Wil-

liamson v. W. Pacific Dredging Corp., 441 F.2d 65, 67 (9th

Cir. 1971).

Turning to the merits, the Sobieskis advance two different

Jones Act arguments. First, the plaintiffs contend that

Central Marine is vicariously liable for what they describe

as Barrett’s “pseudo chiropractic ways.”3 Second, the

plaintiffs argue that the defendant is directly negligent and

liable for Sobieski’s injury because it was aware (or should

have been aware), through its officers, of Barrett’s neck-

tractioning activities and did nothing to prevent them. We

take these arguments in turn.

A. Respondeat Superior

As noted above, vicarious liability may extend to FELA or

Jones Act employers under the traditional doctrine of

respondeat superior. Well-established precedent applies the

common law principle that an employer may be vicariously

liable for its employee’s negligence (or intentional tort)

committed within the course or scope of employment—that

is, committed while furthering the employer’s (or the ship’s)

business. See Greenwell, 268 F.3d at 489; Wilson, 841 F.2d

at 1352; Lancaster, 773 F.2d at 818; cf. Consol. Rail Corp.

v. Gottshall, 512 U.S. 532, 543 (1994).

The plaintiffs argue for a more expansive interpretation

of Jones Act vicarious liability. The plaintiffs urge us to

apply a standard that would abrogate the common law

3

The plaintiffs characterize Barrett’s actions as negligent.

Barrett’s “unauthorized touching,” however, is more properly

characterized as an intentional tort. But, as discussed below, the

distinction is meaningless to the outcome of this case. Cf. Lancas-

ter, 773 F.2d at 818 (“[FELA’s] statutory reference to negligence

is understood to embrace intentional misconduct.”).

No. 04-3001 7

scope of employment rule in the Jones Act context. Accord-

ing to the plaintiffs, seamen should be entitled to broader

legal protections under the Jones Act than railroad workers

under FELA: all seamen serving aboard a seagoing vessel

are by definition acting within the scope of employment,

because the seamen “must remain on the vessel while off

watch and at sea” and therefore are on the job “24/7.” In

fact, the plaintiffs’ proposed rule would “extend liability to

the [Jones Act] employer for all negligent acts by employees

which occur on the vessel.” Thus, the plaintiffs contend that

there is no need to show that Barrett’s acts were in further-

ance of the ship’s business.

We decline, however, to adopt the rule the plaintiffs pro-

pose. We may not ignore common law principles of negli-

gence unless Congress expressly indicates otherwise. See

Gottshall, 512 U.S. at 543-44; see also discussion supra in

note 3. The express terms of neither FELA nor the Jones

Act suggest the broad theory of vicarious liability proposed

by the plaintiffs. In addition, we have noted that the “course

of employment” test for FELA cases is identical to the

standard to be applied in Jones Act cases. See Lancaster,

773 F.2d at 817 (collecting authority). Under that standard,

a plaintiff must show that the employee’s tort was commit-

ted in furtherance of the employer’s business. See id.

The plaintiffs seek a rule that would in essence make

Jones Act employers the absolute insurers of seamen they

employ, regardless of the underlying theory of liability.

Binding precedent makes clear, however, that neither FELA

nor the Jones Act has such a broad sweep. See Gottshall,

512 U.S. at 543 (“FELA does not make the employer the

insurer of the safety of his employees while they are on

duty. The basis of his liability is his negligence, not the fact

that injuries occur.”) (quotation marks and citation omit-

ted); Lancaster, 773 F.2d at 817 (rejecting proposed rule

that FELA employers should be liable “without regard to

traditional limitations on respondeat superior”); accord

8 No. 04-3001

Hernandez, 187 F.3d at 436-37 (“[T]he Supreme Court has

cautioned that the FELA, and derivatively the Jones Act, is

not to be interpreted as a workers’ compensation statute

and that the unmodified negligence principles are to be

applied as informed by the common law.”).

The plaintiffs cite a number of cases in support of their

proposed rule, but only two bear discussion. First, the

plaintiffs offer Wilson for the proposition that this court has

dispensed with the employer business interest requirement

in favor of an “enterprise liability” theory purportedly

favored by Congress. In Wilson, we applied § 229 of the

Restatement (Second) of Agency to determine whether the

tortfeasor’s acts were within the “scope of employment.” See

Wilson, 841 F.2d at 1355-56. In a footnote, we noted that a

number of courts had adopted the Restatement approach in

FELA cases and also that there was “some indication” that

Congress intended to impose “enterprise liability” in FELA

cases. Id. at 1356 n.2. It is this dicta that the plaintiffs offer

in support of the view that Wilson endorses their proposed

broad theory of vicarious liability.

We did not, however, decide Wilson on the basis of com-

mentary regarding enterprise liability. Indeed, we expressly

indicated that, “[t]o define ‘scope of employment,’ a federal

court should apply common law principles, as interpreted

by other federal courts.” Id. at 1352 (citations omitted).

We merely recognized that the factors in § 229 were a use-

ful guide in applying the common law, and we concluded

that genuine issues of fact remained precluding summary

judgment in that case. See id. at 1358. We did not, by

application of § 229, endorse a rule abrogating the common

law requirement that an employee’s acts must be within the

scope of employment before liability may be imputed to the

employer. In fact, we expressly noted that “[i]f the employee

only had a personal purpose, it would be unusual” that the

acts would satisfy FELA’s scope of employment require-

ment. See id. at 1356 n.2. The case entailed an unremark-

No. 04-3001 9

able application of § 229 and did not take the radical step

of dispensing altogether with common law principles of

respondeat superior—which, in any event, are not inconsis-

tent with the factors enumerated in § 229. Thus, as the

defendants observe, Wilson does considerably less than the

plaintiffs claim.

The plaintiffs also cite Baker v. Baltimore & Ohio Rail-

road. Co., 502 F.2d 638 (6th Cir. 1974). In Baker, the court

declined to apply a scope of employment test at all, conclud-

ing that “[u]nder the FELA[,] a defendant’s liability for the

negligence of its servants is not restricted by the common

law doctrine of respondeat superior.” Id. at 641. The court

also expressed its view that “[i]t is unnecessary to show

that [employees] were negligent while performing a particu-

lar act ‘in furtherance of their master’s business,’ as this

common law term has been interpreted.” Id. (citation

omitted). Moreover, in a footnote, the court noted in dicta

its view that FELA is a “liberal rule” and suggested that

even if a scope of employment test might apply, it “might

extend liability to the railroad for all negligent acts by

employees which occur during the hours of the employee’s

working day on the employer’s premises.” Id. at 643 n.3.

This dicta, of course, echoes the rule proposed by the

plaintiffs.

We are unpersuaded, however, by the analysis and dicta

in Baker. While it may be true that FELA (and, by impli-

cation, the Jones Act) was intended to be a “liberal rule,” it

is also true that we are not to ignore the statutes’ clear

terms or common law principles in the absence of statutory

language indicating otherwise. Cf. Gottshall, 512 U.S. at

543-44. As we indicated in Lancaster, the Baker court read

FELA’s statutory language and liberal purpose too broadly

in the respondeat superior context, and we decline to follow

suit. See Lancaster, 773 F.2d at 817-18 (“[T]he purpose [of

FELA] was not to broaden the doctrine of respondeat

superior, least of all in intentional tort cases; it was to

10 No. 04-3001

eliminate the fellow-servant rule.”). Although FELA dis-

penses with certain common law defenses, nothing in its

express terms (or the terms of the Jones Act) indicates

Congress’s intent that we set aside common law principles

of respondeat superior, and most courts have continued to

apply traditional rules of respondeat superior for both

negligence and intentional tort cases. Cf. id. (collecting

authority and rejecting the Baker interpretation).

We shall do likewise here and apply the traditional scope

of employment test. The plaintiffs must therefore show that

Barrett acted in furtherance of the ship’s business before

Central Marine may be held vicariously liable for his

actions, whether one characterizes the neck-tractioning as

negligence or as an intentional tort. The plaintiffs have not

done so, and we believe no reasonable jury could conclude

otherwise.

As we have stated, “regardless of how individual courts

have stated the tests, in order for an activity to qualify as

being within the scope of employment, it must be a neces-

sary incident of the day’s work or be essential to the per-

formance of the work.” Rogers v. Chi. & N.W. Trans. Co.,

947 F.2d 837, 839 (7th Cir. 1991). By no stretch can it be

said that Barrett’s act of cracking Sobieski’s neck satisfies

the latter requirements. Barrett was a mate’s assistant, and

his official duties were to work on deck, steer the ship, and

act as a lookout. It is undisputed that Barrett had no

express authorization to crack anyone’s neck, nor was such

neck-tractioning part of his official duties.

The plaintiffs offer no evidence to the contrary, but in-

stead argue that “[t]he focus of the inquiry, thus, is whether

the negligent co-employee had a purpose, in part, to further

the employer’s interests.” The plaintiffs point to Barrett’s

deposition testimony, in which he testified that he had

cracked the necks of several crewmen over the years to help

them feel better and, presumably, work better. The plain-

No. 04-3001 11

tiffs therefore contend that Barrett’s subjective belief that

he was helping Sobieski brings the neck-tractioning within

the scope of employment because it was somehow beneficial

to the operation of the ship.

We disagree. To the extent Barrett’s subjective beliefs

may be relevant to the scope of employment inquiry, those

beliefs should be reasonable and the resulting action some-

how related to the ship’s business. In Rogers, for example,

we held that a railroad employee who was injured while

jogging off duty on company property was not acting in the

scope of employment. We concluded that the plaintiff’s sub-

jective belief that jogging furthered his employer’s business

was not reasonable, and thus the act of jogging was not

within the scope of his employment. See Rogers, 947 F.2d at

839 (“If plaintiff thought he was doing something which was

necessary for or in the benefit of the railroad, this belief

was not reasonable. Jogging benefits an employer in such

an indirect and tangential way that plaintiff cannot be said

to have been acting within the scope of employment.”). We

distinguished cases in which certain non-work-related

activities, such as sleeping or eating, were found to be

within the scope of employment because those activities

were essential to acceptable work performance. See id. at

839 (collecting authority). In the absence of a company

directive suggesting otherwise, we concluded that exercise

was not a necessary incident to the plaintiff’s job duties. See

id. at 840.

As far as Barrett’s subjective belief and his subsequent

action, the same reasoning applies here. There simply is no

evidence that the defendant knew of or condoned Barrett’s

“massages,” no matter how well-intentioned they may have

been. In addition, we fail to see how Barrett’s off-duty neck-

cracking was in any sense a necessary incident to the

performance of his duties, regardless of what Barrett may

have thought. Moreover, any conceivable benefit to Central

Marine by the neck-cracking is even more tangential than

12 No. 04-3001

the jogging was to the employer in Rogers. Instead,

Barrett’s altruistic tractioning of necks clearly falls within

that category of acts commonly held to be outside the scope

of employment—those “undertaken by an employee for a

private purpose and having no causal relationship with his

employment.” Id. at 839 (quoting Wilson, 841 F.2d at 1355);

see Lancaster, 773 F.2d at 819-20 (“The usual view . . . is

that when the motive for the employee’s intentional tort

is personal—which is to say unrelated to his employer’s

objectives and therefore not in furtherance of those objec-

tives—the employer is not liable under a theory of

respondeat superior.”).

In sum, we conclude that no reasonable jury could find

that Barrett’s act of cracking Sobieski’s neck falls within

the scope of employment, and thus the plaintiffs’ respondeat

superior argument fails.

B. Direct Liability

The plaintiffs next argue that the defendant is directly

negligent for Barrett’s act of cracking Sobieski’s neck. Un-

der the plaintiffs’ theory, the defendant is liable because it

knew, or should have known, that Barrett had a habit of

cracking necks, but failed to prohibit or prevent Barrett

from doing the same to Sobieski. We have recognized “direct

negligence” claims of this variety as being independent of

respondeat superior claims under FELA or the Jones Act.

See Lancaster, 773 F.2d at 818; see also Urie v. Thompson,

337 U.S. 163, 178 (1949). Under this theory of liability, it is

irrelevant whether the employee’s act was in furtherance of

the ship’s business. See Lancaster, 773 F.2d at 818. Al-

though the plaintiffs’ argument under this theory is

somewhat stronger than their respondeat superior argu-

ment, it fares no better.

The plaintiffs assert that the defendant is negligent

because certain of the ship’s officers knew of Barrett’s pro-

clivities yet did nothing to put a stop to them. Specifically,

No. 04-3001 13

in his deposition, Barrett answered “yes” when asked if any

officers had seen him crack necks. In addition, Barrett

testified to his belief that he had a “reputation” among

“some” crewmen as a masseur or neck cracker. According to

the plaintiffs, this “admission” showed that Barrett’s acts

were “common and continuous and that [he] had a reputa-

tion as a masseuse[sic] and neck cracker,” such that the

defendant was negligent for letting those acts continue.

As already noted, no evidence in the record indicates that

the defendant actually knew of Barrett’s activities, so the

plaintiffs rely heavily on the notion that the defendant had

constructive knowledge due to Barrett’s purported reputa-

tion. The plaintiffs have not, however, presented evidence

to support their assertion that Barrett had such a reputa-

tion that the defendant was, or should have been, on notice.

In fact, the record discloses that Barrett’s off-duty neck-

cracking activities were anything but “common and continu-

ous.” Barrett testified that in twenty years of duty as a

seaman, he had massaged or cracked the necks of only three

people other than Sobieski: steward’s assistant George

Oram (three or four times in 1995 or 1996), steward’s

assistant Pam Juntilla (once in 1999), steward’s assistant

Shirley Bader (massage only, about three times, dates

unknown), and Sobieski (the one time that led to this

lawsuit). All of these instances (except Sobieski, the

plaintiffs argue) were consensual transactions. As the

defendant notes, in the five or six years preceding the

Sobieski incident, Barrett had cracked only one person’s

neck—Juntilla’s.

While Barrett’s actions with these individuals may say

much about his off-duty indulgences, they say nothing

about whether Barrett had any sort of reputation of which

the defendant should have been aware, such that the

defendant should have taken steps to stop Barrett’s “sneak

attack” on Sobieski. No evidence in the record suggests the

contrary. In fact, even Sobieski himself testified that he had

14 No. 04-3001

no knowledge of Barrett’s activities, as did the ship’s

captain. The record simply does not support the plaintiffs’

contention that Barrett frequently cracked necks and had

a reputation for doing so.

As to Barrett’s belief that officers had witnessed his ac-

tivities, Barrett named none of these officers, and the

plaintiffs have come forward with no evidence to substanti-

ate this assertion (and we have found none in the record).

Instead, the plaintiffs expend some effort arguing that one

of the beneficiaries of Barrett’s ministrations—assistant

steward George Oram—was an officer, and thus Oram’s

failure to curtail Barrett’s actions can impute liability to the

defendant.4

There are several problems with this contention. The

plaintiffs offer only their own definition of “assistant stew-

ard” to support the argument that Oram qualifies as an

officer whose actions or lack thereof may be imputed to

Central Marine. For example, the plaintiffs characterize

Oram as a “part-time steward” and cite caselaw concluding

that stewards are ship’s officers. If anything, however, the

evidence present in the record calls into serious question

whether any reasonable juror could conclude that Oram is

an officer, no matter how the plaintiffs seek to characterize

Oram’s duty title. In his deposition, Oram testified thus

4

Bizarrely, evidence in the record indicates that sometime after

the Sobieski incident, Oram himself tried his hand at massaging

and cracking the neck of the ship’s chief engineer, earning a rep-

rimand from the captain in the process. The plaintiffs point to this

incident as evidence of the defendant’s knowledge of Barrett’s

activities, but we disagree. The timing indicates only that the

ship’s officers became aware of the dangers of neck-cracking after

the Sobieski incident, which is hardly surprising. Likewise, the

incident says nothing about whether the ship’s officers knew or

should have known of Barrett’s predisposition to massage or crack

necks at a point before he “maneuvered” Sobieski’s head.

No. 04-3001 15

regarding his duties as assistant steward: “I assist the

steward. [I] [t]ake all garbage, wash pots, scrub pots and

pans, cut meat, peel vegetables, sweep and mop floors, put

the groceries away, bag the dirty linen, [and] put it away

when it comes back clean.”

This duty description is as far from a supervisory, tradi-

tional ship’s officer role as can be imagined. In fact, the

closest Oram came to even approaching a level of responsi-

bility on par with a ship’s officer was his testimony that he

was in charge of the galley in the steward’s absence—but

even then, he took orders from, and did work assigned by,

the steward. Moreover, Oram never testified that he per-

formed the actual duties of a steward, so the plaintiffs’

efforts to bootstrap Oram up to the level of a de facto

steward are unavailing. And even if Oram had occasional

supervisory authority in the galley, no evidence indicates

that his authority extended to Barrett, who worked on the

deck. We have no difficulty concluding that no reasonable

juror could find that Oram qualifies as an officer, given the

limited scope of his responsibilities aboard the vessel.5

Because there is no evidence to suggest that Central

Marine or its officers knew of (let alone, failed to stop)

Barrett’s hobby as an amateur chiropractor, no jury could

find the defendant liable for the injury Sobieski suffered.

The plaintiffs’ direct negligence claim therefore fails.

In sum, for all of the reasons we have discussed, no

reasonable juror could conclude that the defendant is liable

under the Jones Act. Although we are cognizant of caselaw

suggesting a lighter burden to be carried by Jones Act

plaintiffs in surviving summary judgment, e.g., Leonard v.

5

Oram’s fellow crewmen would probably agree with this conclu-

sion. Even Sobieski in deposition described Oram as the “cook’s

assistant.” Likewise, when asked if Oram was a ship’s officer,

Barrett responded, “No.”

16 No. 04-3001

Exxon Corp., 581 F.2d 522, 524 (5th Cir. 1978), the statute

does not dictate that plaintiffs are entitled to skip the

summary judgment stage altogether. Cf. Wilson, 841 F.2d

at 1354. Even under a more relaxed standard of summary

judgment, a Jones Act plaintiff must come forward with at

least some issue of fact justifying the presentation of the

case to the jury, or summary judgment would have no

meaning whatsoever. It is clear that the plaintiffs have

failed to do so in this case. The district court therefore

properly granted summary judgment on the plaintiffs’ Jones

Act claims.

III. Conclusion

For the reasons given, we conclude that summary judg-

ment on the plaintiffs’ Jones Act claims is appropriate. We

therefore AFFIRM the judgment of the district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-29-05