holding that a jury instruction regarding the primary duty rule should not have been given in the specific case, but failing to delineate when such an instruction can be given
How later courts described this case
- holding that a jury instruction regarding the primary duty rule should not have been given in the specific case, but failing to delineate when such an instruction can be given
- holding that claims of deck hand cleaning oily deck were not barred by primary duty rule since deck hand had neither duty nor ability to remove all oil from deck
- while not applying the primary duty doctrine, the court noted that a primary duty doctrine instruction was an option under the appropriate facts
Written by the judges who cited it.
The opinion
RYAN, Circuit Judge,
dissenting.
Although the so-called Peymann instruction should not have been given under the circumstances of this case, I find the giving of the instruction was harmless error.
A Peymann instruction precludes a plaintiff’s recovery on an unseaworthiness claim if the unseaworthiness condition of the vessel is due solely to the plaintiff’s failure to perform his assigned duties. Peymann v. Perini Corp., 507 F.2d 1318, 1323 (1st Cir.1974), cert. denied, 421 U.S. 914 , 95 S.Ct. 1572 , 43 L.Ed.2d 780 (1975).
In the course of the court's instructions on unseaworthiness, the court gave a Pey-mann instruction:
If you find that the condition of unseaworthiness, which was the cause of the plaintiff’s accident, was due solely to the failure of the plaintiff to carry out his duty to his employer, then you must find for the defendant in this case.
The instruction requires the jury first find the vessel unseaworthy, and then that the unseaworthiness was a cause of the plaintiff’s accident before determining whether the unseaworthiness was caused by the plaintiff.
The jury made no such preliminary findings in the instant case. To the contrary, the jury answered “No” to the question in the special verdict form: “Was the defendant’s vessel unseaworthy?” Because the jury found defendant’s vessel was not un-seaworthy, it could not properly have reached the succeeding causation question in the special verdict form: “Was any unseaworthiness of the vessel a cause of plaintiff’s alleged injury?” It follows that the jury must have found in favor of defendant without considering the Peymann instruction. Therefore, I conclude the giving of the Peymann instruction was harmless error and I would affirm the judgment in favor of the defendant.
As the majority opinion indicates, defense counsel failed to advance a harmless error argument on appeal and, in fact, during oral argument, conceded that because of the Peymann instruction, the jury verdict could have been the result of the jury’s finding that plaintiff breached a duty owed to defendant, his employer. However, a concession by defense counsel on appeal *1186 need not be adopted by this court on review, particularly where, as here, the concession has no support in evidence and is based on pure speculation. I agree with the majority that there was no evidence on the record indicating plaintiff failed to perform his assigned duties.
Even if I were to agree with the majority that the giving of the Peymann instruction on plaintiff’s unseaworthiness claim constituted reversible error, I would not remand on the Jones Act negligence claim for retrial. The Peymann instruction does not apply to the Jones Act claim and this court declined to find the failure to give the safe place to work instruction on the Jones Act claim was reversible error. Even if the Peymann instruction were reversible error, which I do not concede, only plaintiffs unseaworthiness claim should be reversed.
I would affirm the judgment.