Amanda Beech v. Hercules Drilling Co., L.L.C.

Case: 11-30415 Document: 00511956548 Page: 1 Date Filed: 08/14/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 14, 2012

No. 11-30415 Lyle W. Cayce

Clerk

AMANDA BEECH, individually and as tutrix, guardian of her minor child, Jax

Delton Beech,

Plaintiff-Appellee Cross-Appellant,

v.

HERCULES DRILLING COMPANY, L.L.C.,

Defendant-Appellant Cross-Appellee.

Appeals from the United States District Court

for the Eastern District of Louisiana

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This case requires us to decide whether vicarious liability principles under

the Jones Act allow a seaman’s wife to recover from her husband’s employer for

the bizarre events that led to his tragic and untimely death. Keith Beech died

after his co-worker, Michael Cosenza, accidentally shot him aboard a Hercules-

owned vessel. The district court determined that Cosenza was acting in the

course and scope of his employment at the time of the accident. Because we

conclude that Cosenza was not acting in the course of his employment when he

accidentally shot Beech, we REVERSE.

Case: 11-30415 Document: 00511956548 Page: 2 Date Filed: 08/14/2012

No. 11-30415

I.

The following facts are undisputed. Keith Beech (“Beech”) was a crane

operator working aboard a jack-up drilling rig that his employer, Hercules,

owned. Michael Cosenza (“Cosenza”) worked as a driller aboard the same vessel.

When Cosenza came aboard, he accidentally brought a firearm with him, which

violated Hercules’ policy prohibiting weapons on the vessel. Cosenza and Beech

were both aware of Hercules’ policy against firearms. After discovering the

firearm in some of his laundry, Cosenza did not tell anyone that he had

inadvertently brought it aboard. Instead, he kept it hidden in his locker on the

rig. This failure to report the firearm constituted an additional violation of

Hercules’ safety policy.

On December 13, 2009, Cosenza was assigned to work a night shift and

was the only crewman on duty. Cosenza’s duties that night were to monitor the

rig’s generator, to check certain equipment, and to report any suspicious activity

or problems. Hercules encouraged Cosenza to stay in the break room while he

performed these duties, watching television and commiserating with fellow crew

members. Cosenza could simultaneously watch television and monitor the

generator because if something were to go wrong with the generator, the

television would turn off.

Beech was not on duty but was aboard the vessel and subject to the call of

duty. Both men were in the rig’s television room, watching television and

chatting. Beech mentioned that he was thinking about purchasing a small

firearm, and Cosenza, thinking Beech might be interested in seeing his firearm,

left the break room and went to his locker to retrieve it. Upon returning,

Cosenza showed the firearm to Beech, who inspected it but did not handle it. As

Cosenza sat back down in the TV room, his arm bumped a part of the couch, and

the firearm accidentally discharged, mortally wounding Beech.

Mrs. Beech subsequently brought a wrongful death action against

Hercules under the Jones Act. After a bench trial, the district court granted

2

Case: 11-30415 Document: 00511956548 Page: 3 Date Filed: 08/14/2012

No. 11-30415

judgment in favor of Mrs. Beech, individually, in the amount of $876,997.00 and

as tutrix, guardian of her minor child, Jax Delton Beech, in the amount of

$317,332.00, for a total recovery of $1,194,329.00. Beech v. Hercules Drilling Co.,

786 F. Supp. 2d 1140, 1150-51 (E.D. La. 2011). Hercules contends on appeal that

Beech and Cosenza were not acting in the course of their employment at the

time of the accident and that the district court’s judgment in favor of Mrs. Beech

must, for that reason, be reversed. Mrs. Beech cross-appeals, arguing that the

district court failed to include loss of fringe benefits damages in its damages

award.

II.

The parties dispute what standard of review should apply to the course of

employment issue. Hercules contends that, because the facts relevant to the

course of employment issue are all undisputed, only the legal determination of

whether those facts meet the course of employment standard remains for us on

appeal. Hercules argues that we should review this purely legal question de

novo. Mrs. Beech, on the other hand, cites Fifth Circuit precedent for the

proposition that “[w]hether or not an employee acted within the scope of his

employment is a question for the factfinder,” warranting clear error review. See

Smollen v. United States, 1995 WL 29214, at *4 (5th Cir. Jan. 11, 1995) (per

curiam) (unpublished but precedential under Fifth Circuit Rule 47.5.3) (“Where

there is a fact issue as to the ‘course and scope’ of an employee in performing a

particular task which may give rise to an issue of liability upon the part of the

master, that issue should be submitted for the jury’s determination.”) (quoting

Ryder Truck Rentals v. Latham, 593 S.W.2d 334, 336-37 (Tex. Ct. App. 1979)).

Hercules counters that Smollen and Ryder Truck Rentals do not stand for the

proposition that we always review course of employment issues for clear error.

Instead, those cases both emphasize that “where there is a fact issue” as to scope

of employment, clear error applies. Because there are no such fact issues in this

3

Case: 11-30415 Document: 00511956548 Page: 4 Date Filed: 08/14/2012

No. 11-30415

case, Hercules argues that de novo review is appropriate, Smollen and Ryder

Truck Rentals notwithstanding.

We resolved this question in Hussaini v. Marine Transp. Lines, Inc., a

persuasive, though unpublished, opinion:

Determinations of scope of employment, and, thus, vicarious

liability, are most accurately characterized as mixed questions of

law and fact because they involve legal conclusions based upon

factual analysis. Mixed questions should be reviewed under the

clearly erroneous standard if factual questions predominate, and de

novo if the legal questions predominate.

When, however, the district court has plainly identified its findings

of fact, separately and distinctly from its legal conclusions, we may

properly proceed with de novo review of the legal conclusions, even

if the underlying facts are in dispute. This does not encroach upon

the district court’s factfinding function, but rather fulfills our

obligation to review the interpretation and application of the law. In

such instances, the “mixed” questions of law and fact have been

“unmixed” by the district court, enabling us to review the factual

components under the clearly erroneous standard, and the legal

components de novo.

158 F.3d 584 (5th Cir. 1998) (unpublished) (citations omitted). De novo review

is even more clearly appropriate here, where all of the facts are settled and

undisputed, leaving us only with the familiar task of applying the law to the

facts.

III.

1.

We review the Jones Act briefly before proceeding to the merits. Prior to

its enactment, seamen could not recover against their employers for either the

employer’s own negligence or the negligence of a fellow crew member. The

Osceola, 189 U.S. 158 (1903) (overruled by the Jones Act, now codified at 46

U.S.C. § 30104). Instead, seamen were limited to compensation under the

general maritime law, which included only two theories of recovery, both of

which are still available today: unseaworthiness, and maintenance and cure. Id.

4

Case: 11-30415 Document: 00511956548 Page: 5 Date Filed: 08/14/2012

No. 11-30415

at 175-76. Unseaworthiness is a claim under general maritime law “based on the

vessel owner’s duty to ensure that the vessel is reasonably fit to be at sea.” Lewis

v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001) (citing Mitchell v.

Trawler Racer, Inc., 362 U.S. 539, 550 (1960)). “A claim for maintenance and

cure concerns the vessel owner’s obligation to provide food, lodging, and medical

services to a seaman injured while serving the ship.” Id. (citing Calmar S.S.

Corp. v. Taylor, 303 U.S. 525, 527-28 (1938)).

In 1920, Congress enacted the Jones Act to create “a negligence cause of

action for ship personnel against their employers.” Withhart v. Otto Candies,

L.L.C., 431 F.3d 840, 843 (5th Cir. 2005) (citations omitted). It provides:

A seaman injured in the course of employment or, if the seaman dies

from the injury, the personal representative of the seaman may

elect to bring a civil action at law, with the right of trial by jury,

against the employer. Laws of the United States regulating recovery

for personal injury to, or death of, a railway employee apply to an

action under this section.

46 U.S.C. § 30104. By incorporating “[l]aws of the United States regulating

recovery for personal injury to, or death of, a railway employee,” the Jones Act

extends the protections of the Federal Employer’s Liability Act (“FELA”)1 to

seamen, and thus FELA case law applies to Jones Act cases. Id.; see also

Withhart, 431 F.3d at 843 (“In passing the Jones Act, Congress did not

specifically enumerate the rights of seamen, but extended to them the same

rights granted to railway employees by FELA.”) (citing Cox v. Roth, 348 U.S.

207, 208 (1955)).

The Supreme Court has consistently held that the Jones Act is “‘entitled

to a liberal construction to accomplish its beneficent purposes,’” which is to

“provide for ‘the welfare of seamen.’” See, e.g., Cox, 348 U.S. at 210 (quoting

1

FELA provides, in relevant part, 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.

5

Case: 11-30415 Document: 00511956548 Page: 6 Date Filed: 08/14/2012

No. 11-30415

Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 790 (1949)). Liberal

construction is necessary because of the seaman’s broad and perilous job duties:

Unlike men employed in service on land, the seaman, when he

finishes his day’s work, is neither relieved of obligations to his

employer nor wholly free to dispose of his leisure as he sees fit. Of

necessity, during the voyage he must eat, drink, lodge and divert

himself within the confines of the ship. In short, during the period

of his tenure the vessel is not merely his place of employment; it is

the frame-work of his existence.

Aguilar v. Standard Oil Co., 318 U.S. 724, 731-32 (1943); see also Consolidated

Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994) (“We have liberally construed

FELA to further Congress’ remedial goal.”); Harden v. Gordon, 11 F. Cas. 480,

485, 483 (No. 6,047) (C.C.D. Me. 1823) (Story, J.) (explaining that seamen “are

emphatically the wards of the admiralty” because they “are by the peculiarity of

their lives liable to sudden sickness from change of climate, exposure to perils,

and exhausting labor”).

This liberal construction has resulted in broader employer liability under

the Jones Act and FELA than would have been possible under the common law:

In order to further [the Acts’] humanitarian purposes, Congress did

away with several common-law tort defenses that had effectively

barred recovery by injured workers. . . . [The Acts] abolished the

fellow servant rule, rejected the doctrine of contributory negligence

in favor of that of comparative negligence, and prohibited employers

from exempting themselves from [the Acts] through contract; a 1939

amendment abolished the assumption of the risk defense.

Gottshall, 512 U.S. at 542-43. Yet the Supreme Court has been equally adamant

that liberal construction “does not mean that [FELA or the Jones Act are]

workers’ compensation statute[s].” Id. at 543. Neither makes “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.” Id. at 543; see also

Morant v. Long Island R.R., 66 F.3d 518, 522 (2d Cir. 1995) (citing Gottshall, 512

U.S. at 543). Accordingly, the common law’s limits on employer liability are

6

Case: 11-30415 Document: 00511956548 Page: 7 Date Filed: 08/14/2012

No. 11-30415

entitled to great weight in FELA and Jones Act cases “subject to such

qualifications as Congress has imported into those terms.” Id.; see also id. at 544

(“Only to the extent of these explicit statutory alterations is FELA an avowed

departure from the rules of the common law.”) (internal quotation marks

omitted); Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338-39 (5th Cir.

1997) (citing Gottshall, 512 U.S. at 542-44) (holding that common law principles

are entitled to great weight in Jones Act cases).

One of those common law principles that still carries “great weight” in the

FELA and Jones Act context is that an employer may be vicariously liable for its

employee’s negligence under the doctrine of respondeat superior so long as the

negligence occurred “in the course of employment.” See, e.g., Landry v. Oceanic

Contractors, Inc., 731 F.2d 299, 303 (5th Cir. 1984); Sobieski v. Ispat Island, Inc.,

413 F.3d 628, 632 (7th Cir. 2005) (“[V]icarious 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.”) (citations omitted); but see Baker v.

Baltimore & Ohio R.R. Co., 502 F.2d 638, 641 (holding 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”). This case turns on the meaning

of the phrase “in the course of employment” and more specifically on whether

Cosenza and Beech were acting in the course of their employment when Cosenza

accidentally shot Beech.

2.

Proceeding to the merits of this case, the district court explained, and

neither party disputes, that in order to hold an employer vicariously liable under

the Jones Act for one employee’s injury caused by the negligence of a co-

employee, a plaintiff must show that the injured employee and the employee who

7

Case: 11-30415 Document: 00511956548 Page: 8 Date Filed: 08/14/2012

No. 11-30415

caused the harm were both acting in the course of their employment at the time

of the accident. It concluded that Beech was acting in the course and scope of his

employment because he was aboard the vessel and subject to the call of duty at

the time he was shot. It also concluded that Cosenza was acting in the course of

his employment, reasoning as follows:

[A]t the time Mr. Cosenza’s handgun discharged and injured Mr.

Beech, Mr. Cosenza abandoned his purpose of showing off the gun

and was in the process of sitting down on the couch to watch

television. . . . In fact, Hercules encouraged Mr. Cosenza to watch

television between rounds, while on-duty. Conversation with other

crew members, even when touching upon personal matters, was

therefore well within the permissible boundaries of his job activity

that night. Thus, the Court finds that at the critical moment—when

the gun discharged—Mr. Cosenza was acting in the course and

scope of his employment.

Hercules contends that because Cosenza’s decision to show off his firearm

did not further Hercules’ business interests, and because it was in no way

related to his job duties, he was not acting within the course and scope of his

employment at the time of the accident. Moreover, Hercules argues that if this

factual scenario does not bring a seaman outside the course and scope of his

employment, then no scenario could, meaning the Jones Act would effectively

place employers under strict liability.

Mrs. Beech counters that “[a]s strange as it sounds, Mr. Cosenza’s duties

on December 13, 2009 included sitting around the T.V. room doing nothing more

than monitoring the conditions on the rig.” Mrs. Beech takes the position that

at the precise moment the firearm fired, Cosenza was doing just that, and

therefore, he was acting in the course and scope of his employment.

IV.

1.

The parties and the district court cite potentially conflicting standards for

when an employee’s conduct falls within the course and scope of his employment.

8

Case: 11-30415 Document: 00511956548 Page: 9 Date Filed: 08/14/2012

No. 11-30415

In Stoot v. D & D Catering Serv., Inc., we held that an employer is only liable for

the wrongful acts committed by its employee when the employee’s tortious

conduct is in furtherance of the employer’s business. 807 F.2d 1197, 1199 (5th

Cir. 1987)). Joseph Stoot was employed as a seaman aboard the MR. DAVE, a

jack-up drilling rig. Id. at 1198. His unique job duties prevented him from eating

his meals during regular hours, which upset Eloise Porter, the chief cook aboard

the vessel. Id. This disagreement eventually erupted into a violent altercation,

culminating in Stoot insulting Porter, who responded by slashing several of

Stoot’s fingers off with a large knife. Id. The question was whether Porter was

acting in the course of her employment at the time of Stoot’s injuries. Id.2 We

explained that the course of employment issue “must be analyzed within the

framework of established agency principles.” Id. at 1199-1200. We quoted

Section 245 of the Restatement (Second) of Agency as follows:

A master is subject to liability for the intended tortious harm by a

servant to the person or things of another by an act done in

connection with the servant’s employment, although the act was

unauthorized, if the act was not unexpectable in view of the duties

of the servant.

Id. at 1200. We went on to quote Comment C of Section 245 as well, which

provides:

The master, however, is relieved from liability under the rule stated

in this Section if the servant has no intent to act on his master’s

behalf, although the events from which the tortious act follows arise

while the servant is acting in the employment and the servant

becomes angry because of them.

Id. (also citing Offshore Logistics v. Astro-Marine, Inc., 482 F. Supp. 1119, 1121

(E.D. La. 1980)).

Applying this standard, we explained that “Porter was motivated to cut

Stoot from anger and revenge following Stoot’s personal profane statement to

2

Stoot never mentions the Jones Act, but neither party contends that it is inapplicable

here for that reason.

9

Case: 11-30415 Document: 00511956548 Page: 10 Date Filed: 08/14/2012

No. 11-30415

her rather than for reasons related to her employment.” Id. We held that this

finding “supports the district court’s conclusion that Porter’s action was outside

the course and scope of her employment.” Id. (citations omitted).

Mrs. Beech argues that Stoot does not apply here because that case

involved an intentional tort, and Cosenza’s actions in this case were negligent,

not intentional. She cites no case, however, that has held that different

standards apply to cases depending on whether the underlying injury was

caused intentionally or negligently. Indeed, we have never endorsed such a rule,

and the Seventh Circuit has explicitly rejected it. See Sobieski, 413 F.3d at 631

n.3 & 632 (holding that the same course and scope of employment standard

applies under the Jones Act whether the underlying injury-causing-conduct was

negligent or intentional).

The Sixth Circuit, by contrast, has held that it was unnecessary to show

that the negligent employee was acting in furtherance of the employer’s business

interests because course and scope of employment “includes not only actual

service, but also those things necessarily incident thereto.” Baker v. Baltimore

& Ohio R.R. Co., 502 F.2d 638, 641-42 (6th Cir. 1974) (citations omitted). In

Baker, a rail car inspector was on his lunch break when a coworker picked up a

coat, causing a pistol to fall out of the coat’s pocket. 502 F.2d, at 640. The pistol

discharged when it hit the ground, wounding the employee. Id. The employee

filed suit under FELA, but the employer argued that it was not liable for the co-

worker’s negligence because the negligence did not occur in the course of his

employment. Id. The Sixth Circuit held that because the course of employment

includes not only actual service but also “those things necessarily incident

thereto,” the employee was within the course of employment. Id. at 642. It went

on to hold 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,”

and that “[i]t is unnecessary to show that [employees] were negligent while

performing a particular act ‘in furtherance of their master’s business,’ as this

10

Case: 11-30415 Document: 00511956548 Page: 11 Date Filed: 08/14/2012

No. 11-30415

common law term has been interpreted.” Id. at 641 (citations omitted). Mrs.

Beech urges us to apply Baker’s standard.

Hercules points out that one of our sister circuits has criticized Baker’s

reasoning. In Sobieski v. Ispat Island, Inc., one crewman injured another by

performing unrequested and unexpected neck tractioning on him. 413 F.3d 628,

629-30 (7th Cir. 2005). The injured seaman sued his employer under the Jones

Act, claiming that the employer was vicariously liable for the amateur

chiropractor’s handy-work. Id. at 632. He argued that the court should “extend

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

occur on the vessel.” Id. In support of his argument, the injured seaman cited

Baker’s very broad standard and its rejection of the application of the common

law doctrine of respondeat superior to Jones Act claims. Id. at 632-33.

The Seventh Circuit rejected the injured seaman’s argument, explaining

that to prove that the negligent employee’s actions to have been in the course of

employment, the injured seaman “must show that the employee’s tort was

committed in furtherance of the employer’s business.” Id. at 632 (citations

omitted). As for Baker, the Seventh Circuit was “unpersuaded . . . by [its]

analysis.” Id. at 633. The Sobieski court explained that Baker “read FELA’s

statutory language and liberal purpose too broadly,” and held that “plaintiffs

must . . . show that [the coworker] acted in furtherance of the ship’s business.”

Id. Fleshing out that standard, the court explained that “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 necessary incident of the day’s

work or be essential to the performance of the work.” Id. at 634 (internal

quotation marks omitted). The co-worker’s “tractioning of necks clearly [fell]

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 634-35 (internal

quotation marks omitted); see also Lancaster v. Norfolk & W. Ry. Co., 773 F.2d

11

Case: 11-30415 Document: 00511956548 Page: 12 Date Filed: 08/14/2012

No. 11-30415

807, 813 (7th Cir. 1985) (Posner, J.) (criticizing Baker and deploying the business

interest standard to determine course of employment under FELA).

It is unclear what test the district court applied. It discussed the Stoot test

but distinguished Stoot because the tort there was intentional. It also discussed

the Baker standard but distinguished Baker because the Baker employee’s

conduct did not violate a company safety policy. Finally, the district court briefly

alluded to a third standard, namely that “an employee whose wrongful, negligent

conduct results in accidental injury to a fellow employee still acts in the course

and scope of his employment for purposes of vicarious liability, unless the act is

motivated by some purpose inimical to the interests of the employer or co-

worker.” The district court cited no authority for this last standard, and we are

aware of none.

Although Hercules is correct that we adopted the business interests test

in Stoot, the district court explained that we have also applied a standard

similar to Baker’s in our prior cases. See, e.g., Fowler v. Seaboard Coastline R.R.

Co., 638 F.2d 17, 20 (5th Cir. 1981) (holding that “[s]cope of employment has

been interpreted to encompass acts incidental to the employment as well as the

actual work”) (citations omitted). Today we make clear that we agree with the

Seventh Circuit that regardless of whether the underlying injurious conduct was

negligent or intentional, the test for whether a Jones Act employee was acting

within the course and scope of his employment is whether his actions at the time

of the injury were in furtherance of his employer’s business interests.3 For the

3

While no other circuit has relied on Baker’s course of employment standard, several

have applied standards similar to the one articulated by the Seventh Circuit in Sobieski. See,

e.g., Galosse v. Long Island R.R. Co., 878 F.2d 80, 82-83 (2d Cir. 1989) (citing Copeland v. St.

Louis)San Francisco Ry. Co., 291 F.2d 119, 120 (10th Cir. 1961) and Hoyt v. Thompson, 174

F.2d 284, 285 (7th Cir. 1949)) (holding that “under FELA [and the Jones Act], employers are

liable for the negligence of their employees only if it occurs within the scope of employment,

and no liability attaches when an employee ‘acts entirely of his own impulse, for his own

amusement, and for no purpose of or benefit to the defendant employer’”); Lowden v. Atchison

Topeka and Santa Fe Ry., 937 F.2d 491, 492 (9th Cir. 1991) (agreeing with the district court

that whether employee acted “within the scope of his employment” depended on the employee’s

12

Case: 11-30415 Document: 00511956548 Page: 13 Date Filed: 08/14/2012

No. 11-30415

reasons discussed below, we conclude that Cosenza was not acting within the

course and scope of his employment when he accidentally shot Beech. In light of

that holding, we need not reach the issue of whether Beech was acting within

the course and scope of his employment, because even if he was, Mrs. Beech

could not recover from Hercules under the Jones Act.

2.

Applying the business interests test, the record indicates that Hercules’

business interests with regard to Cosenza that night were simple. It only needed

him to monitor the generator, check certain equipment, and report any

suspicious activities or problems. Hercules’ detailed safety policies also

memorialize the common sense notion that it had a business interest in ensuring

its workers’ safety, particularly with regard to firearms.

Whatever test it applied, the district court ultimately found that Cosenza

was acting in the course of his employment at the time of the accident. It stated

in its order:

[T]he most credible evidence supports the conclusion that at the

time Mr. Cosenza’s handgun discharged and injured Mr. Beech, Mr.

“motivation and whether [his] act furthered the railroad’s business”); Taylor v. Burlington N.

R.R. Co., 787 F.2d 1309, 1312-13 (9th Cir. 1986) (Kennedy, J.) (citations omitted) (holding that

“under the theory of respondeat superior,” a Jones Act or FELA “employer is liable for the

intentional assaults committed by its employee in furtherance of the employer’s business”);

Feichko v. Denver & Rio Grande W. R.R. Co., 213 F.3d 586, 592-93 (10th Cir. 2000) (holding

that an employee “was not acting within the scope of his employment” for FELA purposes

because his actions at the time of his injury were not “in furtherance of the railroad’s

interests” and were instead “a purely private activity . . . which provided no benefit to his

employer”); Copeland v. St. Louis)San Francisco Ry. Co., 291 F.2d 119, 120-21 (10th Cir. 1961)

(holding that an employer is only liable under FELA where the employee’s acts are “in

furtherance of the master’s business,” not where they are “entirely upon [the employee’s] own

impulse, for his own amusement, and for no purpose of or benefit to the defendant employer”);

Brooks v. Washington Terminal Co., 593 F.2d 1285, 1288 (D.C. Cir. 1979) (citing Jamison v.

Encarnacion, 281 U.S. 635 (1930)) (holding that “an assault committed by an employee in the

course of the discharge of his duties and in furtherance of the work of the employer’s business

can serve as the basis for liability under [FELA]”); Slaughter v. Atl. Coast Line R.R. Co., 302

F.2d 912, 915 (D.C. Cir. 1962) (citing Jamison, 281 U.S. 635) (holding that “no recovery may

be had unless the tort was committed in the course of the discharge of [the employee’s] duties

and in the furtherance of the employer’s business”).

13

Case: 11-30415 Document: 00511956548 Page: 14 Date Filed: 08/14/2012

No. 11-30415

Cosenza had abandoned his purpose of showing off the gun and was

in the process of sitting down on the couch to watch television.

Because of the potential dangers associated with having a single

crew member on duty at night, Mr. Cosenza was cautioned by

Hercules not to do too much. In fact, Hercules encouraged Mr.

Cosenza to watch television between rounds, while on-duty.

Conversation with other crew members, even when touching upon

personal matters, was therefore well within the permissible

boundaries of his job activity that night. Thus, the Court finds that

at the critical moment—when the gun discharged—Mr. Cosenza was

acting in the course of his employment.

There are at least two problems with the district court’s reasoning. First,

it assumes that because Cosenza could monitor the generator (by watching

television) while holding a loaded firearm, he was acting consistently with his

job duties and was therefore within the course and scope of his employment.

That assumption overlooks Hercules’ vital business interest in Cosenza’s other

job duties that night, most notably his duty to “report suspicious activities or

problems.” A person with a loaded weapon sitting in the vessel’s break room

would undoubtedly have constituted precisely the sort of suspicious activity or

problem that Hercules was relying on Cosenza to report. Instead of reporting it,

he created it, and disaster struck. Thus, the district court’s reasoning that

Cosenza’s job duties that night were so broad and relaxed that even handling a

loaded firearm in the break room was consistent with them fails.

Second, the district court’s emphasis on the distinction between “showing

off the firearm” and “sitting down on the couch” implies that it would have

concluded that Cosenza was outside the course of employment had the firearm

discharged while he was still “showing it off.” That distinction is irrelevant,

though, because neither showing off a loaded weapon nor sitting down on the

couch while holding one furthered Hercules’ business interests. Indeed both were

inimical to it.

Mrs. Beech argues that Cosenza’s extraordinary breeches of Hercules’

safety policies are irrelevant to the course of employment analysis, but that

14

Case: 11-30415 Document: 00511956548 Page: 15 Date Filed: 08/14/2012

No. 11-30415

cannot be right. It may be true that not every violation of safety policy

automatically casts an employee outside the course of his employment. See, e.g.,

Frederick v. Swift Transp. Co., 616 F.3d 1074, 1079-80 (10th Cir. 2010) (holding

that a truck driver who violated safety policy by ingesting methamphetamine

was nevertheless acting within the course and scope of her employment under

New Mexico law when she drove the company’s truck on her assigned route

under the employer’s directions, attempting to meet the employer’s deadlines,

but emphasizing that “we certainly do not hold that ingesting illicit drugs can

never remove an employee from the course and scope of employment”). But that

does not mean that no violation of safety policy can ever take an employee out

of the course and scope of employment. The safety policy violation in this case

is not dispositive of the course and scope of employment issue, but it is relevant

because it gives guidance regarding what employee conduct furthers Hercules’

business interests. For the reasons discussed above, Cosenza’s leaving the break

room to retrieve a loaded firearm when he was supposed to be monitoring the

generator and watching out for suspicious behavior took him outside the course

and scope of his employment. Indeed, Cosenza’s conduct was so clearly contrary

to Hercules’ business interests, that our conclusion would be the same even if

there had not been a policy in place specifically forbidding this sort of behavior.

Furthermore, if Cosenza’s conduct aboard the HERCULES 101 did not

take him outside the course of his employment, it is unclear what could have.

Courts have long held that as broad as Jones Act liability is, it is not strict

liability. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994)

(admonishing that the liberal construction requirement “does not mean that

[FELA or the Jones Act are] workers’ compensation statute[s]”); see also id.

(emphasizing that neither the Jones Act nor FELA makes “the employer the

insurer of the safety of his employees while they are on duty”).

Our conclusion would be the same even if we applied the Sixth Circuit’s

incidental to job duties test. The fact that Cosenza’s job duties were broad and

15

Case: 11-30415 Document: 00511956548 Page: 16 Date Filed: 08/14/2012

No. 11-30415

relaxed does not mean that anything and everything he might choose to do while

watching television is incidental to those job duties. Merriam-Webster defines

“incidental” as “being likely to ensue as a chance or minor consequence.” The

record contains the testimony of multiple witnesses to the effect that an incident

like the one at issue in this case is unheard of, and even Mrs. Beech does not

argue that Hercules should have anticipated this sort of behavior. Mrs. Beech

makes no attempt to explain what having a loaded firearm in the break room

against company safety policies had to do with monitoring the generator that

night. As explained above, not only was Cosenza’s conduct not incidental to

monitoring the generator, it was directly inconsistent with his duty to report

suspicious behavior. Far from incidental to his job duties, Cosenza’s behavior

was inconsistent with them. Therefore, we hold that at the time of the accident,

Cosenza was not acting in the course of his employment.

This is a difficult case with the most sympathetic and tragic of facts.

Cosenza’s broad and flexible job duties exemplify the unique characteristics of

the seaman’s work that animate the liberal construction we apply to the Jones

Act. See, e.g., Aguilar, 318 U.S. at 731-32 (“Unlike men employed in service on

land, the seaman, when he finishes his day’s work, is neither relieved of

obligations to his employer nor wholly free to dispose of his leisure as he sees fit.

Of necessity, during the voyage he must eat, drink, lodge and divert himself

within the confines of the ship. In short, during the period of his tenure the

vessel is not merely his place of employment; it is the frame-work of his

existence.”). It is equally clear, however, that the liberality of our construction

must stop short of imposing strict liability upon Jones Act employers. Gottshall,

512 U.S. at 542-43. Deciding where an employee’s conduct falls on the course

and scope of employment continuum is necessarily a fact-intensive inquiry, and

courts have few bright line principles to guide them. Some conduct that is

consistent with a very broad and flexible job duty will nevertheless be so

contrary to the employer’s business interests, so unforeseeable by the employer,

16

Case: 11-30415 Document: 00511956548 Page: 17 Date Filed: 08/14/2012

No. 11-30415

and so far removed from the employee’s role as employee as to be outside the

course and scope of employment. Even construing the course and scope of

Cosenza’s job duties very liberally, his handling of a loaded firearm in the

vessel’s break room fell outside the course and scope of his employment.

V.

Because we conclude that Cosenza was outside the course and scope of his

employment, we do not reach whether Beech was in the course of his

employment at the time of the accident. Likewise, because there can be no Jones

Act liability where Cosenza was not acting in the course of his employment, we

need not reach Mrs. Beech’s cross-appeal regarding the district court’s damages

calculation. For these reasons, REVERSE the district court’s judgment in favor

Mrs. Beech, and render judgment in favor of Hercules.

17