# Charles Sementilli v. Trinidad Corporation, Trinidad Corporation, Third-Party-Plaintiff-Appellant v. Stephen H. Taus, Third-Party-Defendant-Appellee

> Court of Appeals for the Third Circuit · November 12, 1998 · 155 F.3d 1130

URL: https://www.frixlaw.com/law-library/cases/9491503

## Case

- **Full name:** Charles SEMENTILLI, Plaintiff, v. TRINIDAD CORPORATION, Defendant; TRINIDAD CORPORATION, Third-Party-Plaintiff-Appellant, v. Stephen H. TAUS, Third-Party-Defendant-Appellee
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** November 12, 1998
- **Citations:** 155 F.3d 1130
- **Precedential status:** Published
- **Opinion:** Concurrence by Nelson
- **Judges:** Bright, Fletcher, Nelson, Per Curiam
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491503

## How later opinions describe it (automated extraction)

- holding that an expert may "base his or her opinions and inferences on facts and/or data perceived by or made known to the expert at or before the hearing” (internal quotation marks omitted)
- finding the testimony of an expert admissible under Rule 702 for assisting the fact-finder on an 12 issue that was “beyond the common experience of the average layman”

## Opinion text

T.G. NELSON, Circuit Judge,
specially concurring:
I concur in the court’s opinion. I disagree with the district court’s analysis of causation, and write separately to focus on my view of the difference between cause in fact and legal cause.
The district court found as a matter of law that Dr. Taus’s certification was the cause in fact of the accident, but found insufficient evidence that the certification was a proximate cause of the accident. The causation prong of an action in negligence, or any other tort, contains two elements: (1) causation in fact, and (2) legal cause. 1 See Hines v. United States, 60 F.3d 1442, 1449 (9th Cir.1995) (“An essential element of a plaintiffs cause of action for negligence is that the defendant’s act be both a cause-in-fact and a [legal cause] of any damage to the plaintiff.”); Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th Cir.1995) (recognizing that a plaintiff “cannot recover from a party whose actions or omissions are deemed to be causes in fact, but not legal causes of the damage”), aff'd, 517 U.S. 830 , 116 S.Ct. 1813 , 135 L.Ed.2d 113 (1996); Sundance Land v. Community First Fed. Sav. & Loan, 840 F.2d 653, 662 (9th Cir.1988) (recognizing that a party must show that the wrongful conduct was both the “factual and legal cause of the injury”). See also W. Page Keeton et ah, Prosser & Keeton on the Law of Torts, § 41 at 263-64 (5th ed.1984); Mitchell v. Gonzales, 54 Cal.3d 1041 , 1 Cal.Rptr.2d 913 , 819 P.2d 872 , 876 n. 4 (1991). 2 I will analyze each of these causation elements in turn.
A. Causation in Fact
In finding Dr. Taus’s certification to be the cause in fact of Sementilli’s injury, the district court applied the “but for” test of causation: “But for Taus’ pre-employment approval of [Sementilli’s] seaworthiness, [Sementilli] would not have been on board the S.S. Admiralty Bay, would not have therefore been injured, and would not have subjected Trinidad to liability.” Although I agree with the district court’s conclusion that “but for” Dr. Taus’s certification Sementilli would not have been injured, I disagree that this ends the cause in fact inquiry. As this court recognized in Benefiel v. Exxon Corp., 959 F.2d 805, 807 (9th Cir.1992), “uniformly accepted principles of tort law ... require a plaintiff to prove more than that the defendant’s action triggered a series of other events that led to the alleged injury.” A plaintiff must also show that the defendant’s action was a “substantial factor in bringing about [the] harm.” Id. See also Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658 , 665 (9th Cir.1997) (“Causation is established by *1136 showing that the unseaworthy condition was a substantial factor in causing the injury.”); Famola v. O’Neill & Yacht Marie Celine, 576 F.2d 1364, 1366 (9th Cir.1978) (“To recover, the unseaworthiness would have had to have been a substantial factor in producing appellant’s injuries.”); Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953 , 67 Cal.Rptr.2d 16 , 941 P.2d 1203, 1214 (1997) (“The substantial factor standard, however, has been embraced as a clearer rule of causation [than the ‘but for’ test]-one which subsumes the ‘but for’ test while reaching beyond it to satisfactorily address other situations, such as those involving independent or concurrent causes in fact.”).
In the present case, there are several possible causes of the aecident-Sementilli’s preexisting orthopedic and psychological disabilities, the conditions at sea at the time that Sementilli slipped and fell, and Semen-tilli’s act of lifting almost three times more weight than he was supposed to. It is not clear whether any of these causes were enough to bring about the slip and fall on its own. It is also not clear the extent to which each of these causes played a role in bringing about the injury.
It is, however, clear that Sementilli had many physical and psychological problems. He had previously been injured and had chronic orthopedic and psychological impairments that precluded his working in the exact type of environment that he was injured in, and precluded him from doing the job duties that he was doing when injured-lifting more than twenty pounds in an unstable, vibrating, wet, noisy environment. Furthermore, although it is true that Sementilli slipped on an upside-down rug, there is, at minimum, a question of fact as to why the rug was upside-down to start with, and whether the slip was caused, in whole or in part, by the exact physical and mental inca-pacities that Dr. Taus failed to reveal when he filled out the form certifying Sementilli as fit-for-duty. Based on these facts, a reasonable fact-finder could conclude that Sementil-li’s preexisting disabilities were substantial factors in bringing about the injury.
I therefore conclude that the district court’s finding that, as a matter of law, Dr. Taus’s certification was a cause in fact of Sementilli’s injury was incorrect. This is a question of fact that can be answered only after a full trial. If the fact-finder determines that Dr. Taus knew or reasonably should have known of Sementilli’s physical and mental incapacities, and further determines that these incapacities were a substantial factor in bringing about Sementilli’s injury, this would establish that Dr. Taus’s certification was the cause in fact of Semen-tilli’s injuries.
B. Legal Causation
Once it has been established that the defendant’s conduct is a substantial factor, and therefore a cause in fact, of the plaintiffs injury, the question remains whether the defendant’s conduct is the legal cause of the injury. See Exxon Co. v. Sofec, 517 U.S. 830, 839 , 116 S.Ct. 1813 , 135 L.Ed.2d 113 (1996) (recognizing that “defendant’s blameworthy act [must be] sufficiently related to the resulting harm to warrant imposing liability for that harm on the defendant”); Sofec, 54 F.3d at 576 (recognizing that a plaintiff “cannot recover from a party whose actions or omissions are deemed to be causes in fact, but not legal causes of the damage”). See also Restatement (Second) of Torts § 440 cmt. b (1965) (“[Superseding cause relieves the actor of liability, irrespective of whether his antecedent negligence was or was not a substantial factor in bringing about the harm.”) As the United States Supreme Court recognized in Sofec, the legal cause element is a necessary limitation on liability:
In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. Nevertheless, the careless actor will not always be held for all damages for which the forces that he risked were a cause in fact. Somewhere a point will be reached when courts will agree that the link has become too tenuous-that what is claimed to be consequence is only fortuity. Thus, if the negligent destruction of the Michigan Avenue Bridge had delayed *1137 the arrival of a doctor, with consequent loss of a patient’s life, few judges would impose liability.
517 U.S. at 838-39, 116 S.Ct. 1813 (quotations and citations omitted).
The determination of whether legal cause exists depends upon “whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Sundance, 840 F.2d at 663 . This inquiry is not subject to absolute rules, but rather must be made on a case-by-case basis, and in light of considerations of logic, common sense, justice, policy and precedent. Keeton, supra, at 279. See also Sofec, 517 U.S. at 839, 116 S.Ct. 1813 (“The best use that can be made of the authorities on [legal] cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other.”) (quoting Keeton, supra, at 279). Furthermore, because the present ease deals with an injury to a seaman sustained while aboard a vessel, the facts must be viewed in light of the unique policies that surround the law of admiralty.
Under the law of admiralty, seamen are given heightened legal protection. This heightened protection recognizes the peculiarity of seamen’s lives, and their exposure to the perils of working at sea. See Chandris, Inc. v. Latsis, 515 U.S. 347, 354 , 115 S.Ct. 2172 , 132 L.Ed.2d 314 (1995). (“[S]ea-men 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 labour.’ ”). If injured in the course of .their duty at sea, seamen may recover “maintenance and cure” from their employer for any injuries incurred in service of the vessel; damages from the vessel’s owner for injuries incurred as a result of the unseaworthiness of the vessel; and, under the Jones Act, damages in negligence for any injury incurred “in the course of his employment.” Id. (citing 46 U.S.C.App. § 688(a)).
To effectuate this heightened protection afforded seamen, a heavy burden is imposed on vessel owners, who are often held vicariously liable for the acts of third parties causing injury to seamen. To ease that burden, the United States Supreme Court, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Co., 350 U.S. 124 , 76 S.Ct. 232 , 100 L.Ed. 133 (1956), developed a theory of indemnification whereby vessel owners could recover against third parties who breached the warranty of workmanlike performance. Flunker v. United States, 528 F.2d 239, 242 (9th Cir.1975). This allowed vessel owners to not only shift some of the heavy burden placed upon them, but also “to place ultimate liability on the party who was truly at fault and who should mend his negligent ways to prevent future injury.” Id. 243 .
Special rules have evolved to govern suits for indemnification in admiralty. These rules are designed “to minimize the hazards encountered by seamen, to compensate seamen for the accidents that inevitably occur, and to minimize the likelihood of such accidents.” Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 324 , 84 S.Ct. 748 , 11 L.Ed.2d 732 (1964). To carry out this design, the rules attempt to place the burden of compensating the injured seaman on “the party best situated to adopt preventive measures and thereby to reduce the likelihood of injury.” Id. See also DeGioia v. United States Lines Co., 304 F.2d 421, 426 (2d Cir.1962) (“The function of the doctrine of ... indemnification is allocation of the losses caused by shipboard injuries to the ... institution or institutions most able to minimize the particular risk involved.”).
The Fifth Circuit, in addressing a situation closely analogous to the situation before this court, demonstrated how these special admiralty indemnity rules work. In Miles v. Melrose, 882 F.2d 976 (5th Cir.1989), a seaman died after being stabbed at least sixty-two times by Melrose, a fellow crew member. The mother of the deceased seaman brought an action against the vessel’s owners and operators for negligence under the Jones Act and for unseaworthiness. The vessel owners,, in turn, sought indemnity from the union, whose hiring hall had referred Melrose to the vessel. The vessel owners claimed that the union hiring hall had breached a duty to them by failing to warn them of Melrose’s *1138 violent propensities. Id. at 989-90 . The Fifth Circuit agreed.
In holding that the union could be held liable, the court first recognized that an unfit seaman can render a vessel unseaworthy and therefore expose a vessel to liability:
A ship is unseaworthy unless it and all of its appurtenances and crew are reasonably fit and safe for their intended purpose. The shipowner has an absolute duty to provide the members of his crew with such a seaworthy vessel, an obligation not dependent on fault. Just as a dangerous mast, a defective line, or a damaged hull may render a vessel un-seaworthy, so may a seaman who is not reasonably fit. To establish such unseaworthiness, a plaintiff must prove that the crewmember was not “equal in disposition and seamanship to the ordinary men in the calling.”
Id. at 981 (footnotes omitted).
The court then examined whether a union has a duty under general maritime law to warn a vessel owner or operator of the known violent propensities of a member sent to work on the vessel. Id. at 991 . In finding that such a duty existed, the court stated:
The shipowner or operator is particularly vulnerable and dependent upon the union because it must hue workers through the union hiring hall. In the context of the owner/operator’s absolute liability if a worker does not meet the standard of his calling, this referral relationship is sufficient to impose a duty on the union to warn the vessel if it sends a dangerous seaman.
Furthermore, the concern of maritime law with the safety of seamen is promoted more by allowing than by denying this third-party suit for indemnity or contribution. The shipowner is still absolutely liable for providing a seaworthy vessel; that duty does not shift to the union. Nevertheless, a union who knows and foresees that a member will injure others, when the employer lacks such knowledge, is in a unique position to prevent the harm by not referring him to a vessel. Allowing the vessel to seek indemnity from the union promotes the purposes of the doctrine of unseaworthiness by “placing liability on the party who was truly at fault and who should mend his negligent ways to prevent further injury.... ”
We hold that because of the union’s active role in sending workers to vessels, the special relationship between the union and the maritime employer, the union’s unique ability to prevent the harm, and admiralty law’s concern with the safety of seamen, the union has a duty under the general maritime law toward the owner or operator of a vessel to exercise reasonable care when it knows of a worker’s violent propensities and can foresee that he consequently may assault other crew members and thereby expose the employer to liability.
Id. at 992-93 (footnotes omitted).
Similarly, in the present case, Trinidad is particularly vulnerable and dependent upon the union-designated physician to send it only seamen that are fit for duty at sea-Trinidad is required to hire through the union, and must hire the candidate that the union sends out unless the seaman is not “qualified.” To protect itself from unseawor-thy seamen, Trinidad requires seamen to undergo a preemployment physical. Only if the seaman is certified by the union-designated physician as fit-for-duty does Trinidad accept the seaman aboard its vessel for duty. This relationship is sufficient to impose a duty on the physician to exercise reasonable care in certifying seamen.
Furthermore, the concern of maritime law with the safety of seamen is promoted more by allowing than by denying this suit for indemnity. Trinidad is still under an absolute duty to provide a seaworthy vessel; that duty does not shift to the union-designated physician. Nevertheless, the physician who examines a seaman for certification is in a unique position to prevent the harm by not certifying an unfit seaman as fit-for-duty. In fact, the physician is the “last stop” before a seaman boards a vessel and the only way that Trinidad can screen a potential seaman to determine whether he or she is fit-for- *1139 duty. Allowing indemnification actions against a physician that has negligently, or intentionally, certified an unfit seaman as fit-for-duty, where the unfit condition of the seaman is a substantial factor in causing an accident and resulting injury, is the only way that “ultimate liability” will be placed “on the party who was truly at fault and who should mend his negligent ways to prevent future injury.” See Flunker, 528 F.2d at 243 .
Public policy considerations and a “rough sense of justice” support this result. See Hunley v. Ace Maritime Corp., 927 F.2d 493, 497 (9th Cir.1991). Dr. Taus made numerous misrepresentations as to Sementilli’s psychological and physical condition. At the same time that he was certifying Sementilli as fit-for-duty, he was certifying to a disability insurer that Sementilli was permanently disabled from working as a shoreside baker. The preemployment physical examination form signed by Dr. Taus stated that Semen-tilli had never suffered from any previous injuries, back complaints, depression or nervous troubles, and concluded that Sementilli was fit for duty. This form was signed after Dr. Taus had diagnosed Sementilli as suffering from swollen ankles, gout, 3 acute gout, and left and right ankle sprain on more than twenty occasions; despite Dr. Taus’s knowledge that Sementilli had suffered from depression, anxiety and nervous troubles since 1985; despite Dr. Taus’s finding that Semen-tilli was permanently disabled from working as a shoreside baker due to bursitis, tendinitis, hypertension and depression; and despite Dr. Taus’s disqualification of Sementilli from jobs involving lifting weights in excess of twenty pounds, jumping, running, climbing, crawling, or working conditions that were noisy, subject to sudden temperature changes or which involved cramped quarters, high places or vibrations.
In sum, admiralty law’s purposes of protecting seamen and placing ultimate liability on the party best situated to adopt preventive measures, as well as general public policy and a rough sense of justice, support the conclusion that Dr. Taus’s certification, if found to be a substantial factor in bringing about Sementilli’s injury, is also the legal cause of the injury.
C. Foreseeability, Intervening Causes and Shifting Responsibility
Although I conclude that the legal cause element is met, there are several legal causation problems that, at first glance, appear to be at issue in this case. I will address each of these perceived problems in turn.
1. The Issue of Foreseeability
The question of foreseeability addresses whether a defendant should be held liable for consequences that he could not have anticipated would result from his conduct. For example, if a defective platform offers at most the foreseeable possibility of a sprained ankle, “but as a result of it a passenger dies of inflammation of the heart,” should the defendant be held liable? Keeton, supra, § 43 at 280. Or, as another example, if a defendant’s “negligent driving threatens another with something like a broken leg, but instead causes the other to be shot,” should the negligent driver be held liable for the resulting injury? Id.
This area of the law of torts is perhaps the most controversial. Id. It must, however, be stressed once again that the foreseeability problem, as part of the legal cause determination, is not a question of factual cause, and indeed never arises until after factual causation has been established. It is, instead, a question of policy that addresses the extent to which a defendant will be held responsible. Id. at 281.
As will be seen, there is no foreseeability problem in the present case. Sementilli suffered from various physical and mental inca-pacities. He was not to lift anything over twenty pounds and was not to work in the conditions that are present aboard a vessel at sea. He had recently been diagnosed with lower back sprain and arthritis of the hip. He had chronic gout, tendonitis and bursitis, and ankle sprain. He also suffered from *1140 chronic depression, anxiety and nervous conditions. Based on these incapaeities-of which Dr. Taus was intimately familiar-it was a clearly foreseeable “risk” that Sementilli may slip and fall while attempting to engage in the rigorous duties of a seaman, which included lifting and carrying heavy weights in a wet, cold, vibrating and unstable environment. Because the “harm” that occurred-Sementilli’s slip and fall and resulting injuries-was within the foreseeable “risk” created by Dr. Taus’s certification, there is no foreseeability problem.
2. The Issue of Intervening Causes
The question of intervening causes addresses whether a defendant should be held liable for an injury to which the defendant has made a substantial contribution, when that injury is brought about by a later cause of independent origin over which the defendant has no control or responsibility. Id. § 44 at 301. Once again, the question in not about factual causation, but rather a question of policy that addresses the extent to which the defendant will be held liable. Id.
In the present ease, the intervening causes at issue are the conditions at sea at the time that Sementilli slipped and fell, and Semen-tilli’s carrying of two to three times more weight than he was supposed to.
As to the conditions at sea, Dr. Taus knew of the adverse conditions at sea when he certified Sementilli as fit to go out to sea. He knew that Sementilli would be subjected to rolling seas, a wet, vibrating, noisy environment, and hard physical labor. The general conditions at sea are, therefore, insufficient intervening causes to relieve Dr. Taus of liability.
As to the specific condition of the upside-down rug, as previously discussed, there is at minimum a question of fact as to why the rug was placed upside-down to start with and why Sementilli continued to place it upside-down. The continued placement of the rug in the upside-down position could well have been a result of Sementilli’s psychological problems. Moreover, it is possible that Sementilli’s psychological problems resulted in a lack of concentration at the time that he was stepping off the elevator with the tray of frozen meat. In fact, Dr. Ketchum opined that Sementilli’s preexisting psychological problems “quite probably gave rise to ‘difficulty in thinking’ and ‘psychomotor retardation,’ ” which “may well have caused or contributed to Mr. Sementilli’s slip-and-fall accident.” Finally, it is possible that if Sem-entilli had truly been an able bodied seaman, he may not have slipped on the upside-down rug to start with, or may have at least been able to recover from the slip and therefore not fallen. These are all questions that must be answered by the fact-finder.
That a question of fact remains on the role the upside-down rug played in the slip and fall does not, however, prevent me from addressing the problem of whether, as a matter of law, the upside-down rug was an intervening cause that should relieve Dr. Taus of liability. This is because I can assume, for purposes of this inquiry, that the fact-finder has concluded that Sementilli’s preexisting disabilities were substantial factors in bringing about the accident. 4
Under this assumption, I conclude that the upside-down rug is not an intervening cause sufficient to relieve Dr. Taus of liability. Dr. Taus knew that Sementilli would be exposed to an unstable environment which would require Sementilli to negotiate around and over obstacles in adverse conditions and carry heavy weights. These obstacles might include hoses, lines, slick areas on deck and below deck, and misplaced tools, buckets, rugs, etc. Despite this knowledge, Dr. Taus certified Sementilli as fit to handle these types of conditions.
Finally, the fact that Sementilli was carrying two to three times more weight than he was supposed to at the time that he was injured is also insufficient to relieve Dr. Taus of liability. As previously discussed, Dr. Taus knew that an ordinary part of a seaman’s job is lifting heavy weights, and certified Sementilli as fit-for-duty despite this knowledge.
*1141 3. The Issue of Shifting Responsibility
The final question — shifting responsibility — deals with those situations in which a third person has discovered the forces set in motion by the defendant prior to the injury occurring. In other words, if the vessel had discovered that Sementilli was not fit-for-duty prior to his accident, the responsibility of the accident may have been shifted from Dr. Taus to Trinidad. There is, however, no evidence that the vessel knew that Sementilli was not an able-bodied seaman prior to the accident, and there is therefore no basis for shifting the responsibility for the wrongful certification.
In sum, the issue of cause in fact remains to be decided by the trier of fact. If the finding is that Dr. Taus’s conduct was a cause in fact of the injuries to Sementilli, then I see no legal causation arguments that would preclude entry of judgment for Trinidad. That question, however, would remain for decision by the district court on the record actually made there. I offer my above analysis only for such assistance as the district court may derive from it.
. Much confusion surrounds the term “proximate cause.” In some cases, the term proximate cause is used to mean both "factual cause” and "legal cause.” See, e.g., USAir, Inc. v. United States Dep't of Navy, 14 F.3d 1410, 1413-14 (9th Cir.1994) (“To recover damages for negligence a plaintiff must prove that the defendant's conduct was a proximate or legal cause of his injuries. Causation in fact is one necessary element of proximate cause.”); Sundance Land v. Community First Fed. Sav. & Loan, 840 F.2d 653, 662 (9th Cir.1988) ("Proximate causation ... requires that the wrongful conduct be both the factual and legal cause of the injury.”). In other cases, the term proximate cause is used to mean only "legal cause.” See, e.g., Hines v. United States, 60 F.3d 1442, 1449-50 (9th Cir.1995) (“An essential element of a plaintiff's cause of action for negligence is that the.defendant's act be both a cause-in-fact and a proximate cause of any damage to the plaintiff_ On the question of proximate (or legal) cause.Because of this confusion, I avoid using the term "proximate cause” altogether, and instead simply distinguish between the requirements of legal cause and factual cause.
. In determining whether a defendant's conduct “was sufficiently related to the resulting harm to warrant imposing liability for that harm on the defendant, courts sitting in admiralty may draw guidance from, inter alia, the extensive body of state law applying proximate causation requirements and from treatises and other scholarly sources.” Exxon Co. v. Sofec, Inc., 517 U.S. 830, 839 , 116 S.Ct. 1813 , 135 L.Ed.2d 113 (1996).
. Gout is a form of arthritis usually found in the joints of the feet and hands, especially the big toe. Webster's New World Dictionary 583 (3d college ed.1988).
. The reason that I can make this assumption is that unless the fact-finder determines that the disabilities were a substantial factor in bringing about the accident, there can be no liability.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491503. Public record. Not legal advice.