Petition for Writ of Certiorari — Luhr Bros. v. Dale

- | Supreme Court, US,

‘e} 7 4 | FILED

= / MAR 21 1988

JOSEPH F. SPAMION, ge,

mes CREEK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

LUHR Bros., INC.,

Petitioner,

VS.

JAMES DALE,

Respondent.

PETITION FOR

WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS

FOR THE FIFTH DISTRICT

DaryYL F. SOHN

JOHN R. HALPERN

GOLDSTEIN AND PRICE

818 Olive Street, Suite 1300

St. Louis, Missouri 63101

(314) 421-0710

Counsel for Petitioner

St. Louis Law Printing Co., Inc., 13305 Manchester Road 63131 314-231-4477

QUESTIONS PRESENTED

1. Whether a maritime construction worker, who falls within

the legislative definition of a ‘‘longshoreman’”’ under the

Longshore and Harbor Workers’ Compensation Act (LHWCA)

and regulations issued thereunder, has a cause of action under

the Jones Act?

2. Whether the Illinois appellate court’s 2 to 1 majority opi-

nion, affirming an award of liability damages to Respondent

under the Jones Act, was in direct conflict with this Court’s

judicial interpretation of who is a ‘‘crewmember’”’ for purposes

of Jones Act coverage, set forth in South Chicago Coal & Dock

Co. v. Bassett, 309 U.S. 241 (1940) and Senko v. LaCross

Dredging Corp., 352 U.S. 370 (1957)?

3. Whether this Court should fashion a uniform rule, for

lower courts to apply in determining whether injuries to

maritime workers should be compensated under the LHWCA

or the Jones Act, in order to resolve the conflicts which exist

between the circuits in:

a. deciding whether or not to begin their analysis

by examining the definitions of employees contain-

ed in the LHWCA and the regulations issued

thereunder, and

b. judicially defining which employees are

‘*crewmembers’’ covered by the Jones Act?

RULE 28.1 LIST

Petitioner owns partial interest in Construction

Aggregate Supply, Inc., and Port Allen Shell and

Limestone, Inc., and is a partner of Midwest Con-

struction Company.

— ili —

TABLE OF CONTENTS

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Statutes and Regulations Involved...................

re ee ee

Reasons for Granting the Writ:

I. The decision of the Illinois appellate court conflicts

with Congress’ legislative determination that

‘‘longshoremen’’ or ‘‘person[s] engaged in

longshoring operations’’ are employees whose ex-

clusive remedy is compensation under the

Longshore and Harbor Workers’ Compensation

rn oe CLs oO webewal ehh aeaa ke

A. The history and purpose of the Longshore

and Harbor Workers’ Act (LHWCA).......

B. The LHWCA is the exclusive remedy for

employees who are within its coverage. ......

C. Respondent was an employee within the

meaning of 33 U.S.C. §902(3)..............

D. The opinion of the Illinois appellate court

conflicts with the express language of the

LHWCA and judicial interpretations of it ...

N

10

11

ee

The Hlinois appellate court’s 2 to | majority opi-

nion, holding Respondent to be covered by the

Jones Act, was in direct conflict with this Court's

interpretation of Jones Act coverage in South

Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251

(1940) and Senko v. LaCross Dredging Corp., 352

Maes SE ale oa aia saad aea eee rests rs

The Court should grant certiorari in this case, and

adopt a uniform rule for determining how the

LHWCA statutory provisions and regulations

should be applied in determining the status of

maritime workers, both to correct the conflict be-

tween the circuits in defining who is a ‘‘seaman,”’

and to correct the conflict between the circuits in

their approach to the issue .....................

A. The conflict in defining *‘seaman”’ .........

B. Theconflict in approach ..................

C. Theresult: aneed for uniformity...........

ee ee Ee le rte bee) AO Ia at a

Appendix:

Opinion dated July 29, 1987 of the Appellate Court

of Illinois for the Fifth District .................

Order dated July 28, 1986 of the Circuit Court of

the 20th Judicial Circuit, St. Clair County, Illinois.

Order dated August 19, 1987 of the Appellate

Court of Illinois for the Fifth District, denying

Petition tor Rehearing and Application for Cer-

tificate of Importance.........................

Order dated December 22, 1987 of the Illinois

Supreme Court, denying Petition for Leave to Ap-

Peal . sit Ate a ates dbl OR A Gana aoe See

A-11

A-18

—

TABLE OF AUTHORITIES

Page

Cases:

Bellomy v. Union Concrete Pipe Co., 297 F.Supp. 261

(S.D.W.Va. 1969) aff'd 420 F.2d 1382 (4th Cir.

1970) cert. den. 400 U.S. 904 (1970) .......0...... 16,17

Berry v. American Commercial Barge Lines, 71 IIl.Dec.

1, 450 N.E.2d 435 (Sth Dist. 1983) .............. 17

Buna v. Pacific Far East Line, Inc., 441 F.Supp. 1360

ON Dee SRR ae won back wet eee 16

Director Etc. v. Perini North River Associates, 459 U.S.

B07 CGR 6 ov foe ¥en d hehe eee 9,11

Duncanson-Harrellson Co. v. Director Etc., 686 F.2d

ks 7, T= A. > re rerun errr 18

Dungey v. United States Steel Corp., 101 Ill.Dec.

957, 499 N.E.2d 545 (5 Dist. 1986), cert. den.

CS, ., Sas FRO ob ce ectencevens 5,15,17,18

International Oilfield Drivers, Inc. v. Pickle, U.S

e tem of: | er sree re 18

International Stevedoring Co. v. Haverty, 272 U.S. 50

COO sz vwkccnda see cele saenkeeee ae 7,9,14,18-19

Johnson v. John F. Beasley Const. Co., 742 F.2d 1054 ©

(7th Cir. 1984), cert. den. 496 U.S. 1211 (1985).... 15,17

Klarman v. Santini, 503 F.2d 29, 33 (2nd Cir. 1974),

cart. Gem. GEOUS. TUN GIGT b ecb scisvcsnenies 17

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149(1920).. 6,7,12

Lunsford v. Fireman’s Fund Ins. Co., 635 F.Supp. 72,

74-75 CEES: FOG sae ec ceceeensieeeees

—'

Lynn v. Heyl and Patterson, Inc., 483 F.Supp. 1247

(W.D.Pa. 1980), aff'd 636 F.2d 1209 (3rd Cir.

RGGED oc cctéucccacsccaencedcabenseeeeee 16

McNeill v. J.E. Brenneman Co., 1986 A.M.C. 2241

GEDPO. WeRic cc ccccescceccesteseeusenneisas 16

McSweeney v. M.J. Rudolph Corp., 575 F.Supp. 746

GEDA. Y. S5GRD io nccccctecntsctacheustuen 16

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978) . 12

Nogueira v. New York, N.H. & H.R. Co., 281 U.S.

IAB (IGOR «oc cccccccssecdeceeeesueadnannaneaal 8,10

Northeast Marine Terminal Co., Inc. v. Caputo, 432

UB. SOCIGIE coccccesceshocsenceesrsunee 9,10

Offshore Co. v. Robison, 266 F.2d 769 (Sth Cir. 1959). . 17

Pearce v. Director, Office of Wks. Compensation, 647

rom wy fe lt S| eee 11

Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334 (1953) . 10

Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d

977 (Sth Cir. 1987), cert. den. _._—«wU.S. __

Pere ....-10,12,13,18,21

Powers v. Bethlehem Steel Corp., 477 F.2d 643 (Ist

Cir. 1973), cert. den. 414 U.S. 856 (1973)... ...... 16

Richardson v. Norfolk Shipbuilding & Drydock Corp.,

479 F.Supp. 259 (E.D. Va. 1979) aff'd 621 F.2d 633

(Ailes Civ, GBD cc ccccccescsdéiccdcaceatca 16

Senko v. LaCross Dredging Corp., 352 U.S. 370

CIGSTD ccccccccccccccccceeacedédanunuel 13,15,17,19,22

Simko v. C & C Marine Maintenance Co., 594 F.2d 960

(3rd Cir. 1979), cert. den. 444 U.S. 833 (1979)... .. 17

— vil —

South Chicago Coal & Dock Co. v. Bassett, 309 U.S.

RAR rrrrrre re i,13,14,15,17,19,22

Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). ... 6

Swanson v. Marra Bros., 328 U.S. 1 (1946) ........... 9,10

Thibodeaux v. Torch, Inc., 674 F.Supp. 1240 (W.D.

Re GRD cinccccdnccbcsubadbenscbesecenvenene 21

United States v. James, 478 U.S. 597 (1986)... ...... . 2,22

Washington v. W. C. Dawson & Co., 264 U.S. 219

GD ovccccccesvstersstedkunbabescaeesanes . 7,8

Other:

Gilmore & Black, The Law of Admiralty (2d Ed. 1975) . 20

House Rep. No. 639, 67th Cong., 2d Sess.......... 5 B .

House Rep. No. 1767, 69th Cong. 2d Sess ............ 8,21

S.R. No. 94, 67th Cong., Ist Sess ............. rr 8

S.R. No. 973, 69th Cong., Ist Sess ...............--. 8,10

No.

IN THE

Supreme Court of the United States

OcToOBER TERM, 1987

Lune Bros., INC,

Petitioner,

VS.

JAMES DALE,

Respondent.

PETITION FOR

WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS

FOR THE FIFTH DISTRICT

Petitioner respectfully prays that a writ of certiorari issue to

review the opinion of the Appellate Court of Illinois for the

Fifth District, entered in this proceeding on July 29, 1987.

OPINIONS BELOW

The opinion of the Appellate Court of Illinois for the Fifth

District is reported at 110 Ill. Dec. 756, 511 N.E. 2d 933, and is

printed in the appendix hereto. Also printed in the appendix are

the unreported order and judgment of the Associate Circuit

Judge for St. Clair County, Illinois, the order of the Appellate

Court of Illinois denying the Petition for Rehearing, and the

order of the Illinois Supreme Court denying the Petition for

Leave to Appeal.

JURISDICTION

The divided opinion of the Appellate Court of Illinois for the

Fifth District was entered on July 29, 1987. A timely Petition

for Rehearing, and Application for Certificate of Importance,

were denied on August 18, 1987. The Illinois Supreme Court

denied a timely Petition for Leave to Appeal on December 22,

1987. This Court’s jurisdiction is invoked under 28 U.S.C.

§1257.

STATUTES AND REGULATIONS INVOLVED

33 U.S.C. §902. Definitions.

* * *

(3) The term ‘‘employee’’ means any person engaged in

maritime employment, including any longshoreman or

other person engaged in longshoring operations, and any

harbor-worker including a ship repairman, shipbuilder,

and ship-breaker .. .

29 C.F.R. 1918. 3(i).

The term ‘‘longshoring operations’? means the loading,

unloading, moving, or handling of cargo, ship’s stOres,

gear, etc., into, in, on, or out of any vessel on the

navigable waters of the United States.

33 U.S.C. §904. Liability for Compensation.

(a) Every employer shall be liable for and shall secure the

payment to his employees of the compensation payable

under Sections 907, 908, and 909 of this title. * * *

33 U.S.C. $905. Exclusiveness of Liability.

(a) Employer liability...

The liability of an employer prescribed in Section 904 of

this title shall be exclusive and in place of all other liability

of such emplover to the employee .

46 U.S.C. §688. Recovery for injury to or death of seaman.

Any seaman who shall suffer personal injury in the course

of his employment may, at his election, maintain an action

for damages at law, with the right of trial by jury, and in

such action all statutes of the United States modifying or

extending the common-law right or remedy in cases of per-

sonal injury to railway employees shall apply. . .

STATEMENT OF THE CASE

In June of 1983, Respondent, a heavy equipment operator

who divided his time between land and river construction pro-

jects, was assigned by Petitioner to work on a project which re-

quired rock to be placed along a section of riverbank on the

Mississippi River, to prevent erosion. Respondent’s job was to

unload rock from barges with a crane, and place the rock on the

riverbank.

The crane rested on the deck of a work barge called the

L-1000, which sat next to the bank. A tug brought barges load-

ed with rock to the work site for Respondent to unload, and

removed the empty barges after Respondent finished unloading

them.

Respondent had no duties with respect to the work barge

itself. He did not handle any lines, did not clean or maintain the

barge, did not repair leaks or perform any pumping, and did not

ever raise or lower the L-1000’s mooring ‘‘spuds’’ when it need-

ed to be moved.

The L-1000 spent 90 percent of its time sitting in one spot, for

one to four hours at a time. Respondent’s sole responsibility

during that time was to unload rock with the crane.

When enough rock was unloaded in a particular spot, and the

work barge needed to be repositioned, a tug manned with its

own crew moved it 90 to 95 percent of the time. Respondent

radioed the tug to advise the pilot where he wanted the work

barge moved, and signaled a winchman to raise the mooring

spuds when the tug arrived. Respondent did not tell the pilot

how to operate the tug, and did not handle any lines in connec-

tion with any of the movements.

About 5 percent of the time, the position of the L-1000 was

adjusted a short distance downstream without the use of the

tug. To accomplish this, Respondent would drop the bucket of

the crane onto the river bottom, and ask the winchman on the

work barge to raise the mooring spuds. After the L-1000 drifted

a short distance, the winchman would drop the mooring spuds

to halt its movement. This method of repositioning the L-1000

was usually used only on occasions when the barge needed to be

moved distances of about 20 or 30 feet.

Respondent testified he was climbing up to the cab of the

crane at the beginning of his shift on July 11, 1983, when his left

foot slipped on the crane track. He testified he lost his grip on

the handhold on the side of the cab and fell backward onto the

deck of the barge. When he fell, Respondent aggravated a prior

injury to his low back and thereafter underwent an operation to

‘*fuse’’ two of his vertebrae, which was only partly successful.

After initially receiving weekly fixed compensation benefits,

Respondent filed suit in the Circuit Court of St. Clair County,

Illinois, alleging he was entitled to recover unspecified damages

as a Jones Act seaman. Petitioner contended in its Answer, at

trial, and in its post-trial brief, that Respondent was a

longshoreman not entitled to recover damages under the Jones

Act. On July 28, 1986, Associate Circuit Judge Robert Craig

entered an Order finding the Respondent to be a seaman, and

awarding him $1,654,704 for his injury.

The trial judge noted that Respondent sometimes asked the

winchman to raise the mooring spuds in order to let the work

barge drift by itself when the tug was ‘‘not around.”’ From this,

he concluded Respondent was aboard the work barge ‘‘primari-

ly to aid in navigation’’ (Appendix p. A-14) and accordingly was

covered by the Jones Act. The trial judge’s decision did not

discuss the Longshore and Harbor Workers’ Compensation Act

(LHWCA), or even acknowledge its existence.

Petitioner appealed to the Appellate Court of Illinois for the

Fifth District, contending the Circuit Court award should be

overturned because Respondent was not a seaman. On July 29,

1987, a three judge panel of the appellate court voted 2 to 1 to

affirm the Jones Act award, even though the same appellate

court held, less than 11 months earlier, that longshoremen such

as Respondent are not covered by the Jones Act. Dungey v.

United States Steel Corp., 101 Ill. Dec. 957, 499 N.E.2d 545 (5

Dist. 1986), cert. den. ___ U.S. ___,, 108 S.Ct. 75 (1987).

The Illinois appellate court’s majority opinion seized on the

fact that Respondent was the one who radioed the tug to come

and reposition the barge, once Respondent finished unloading

rock along a particular stretch of river bank, and that Respon-

dent was the one who asked the winchman to raise the spuds.

The majority concluded, based on this evidence, that Respon-

dent ‘‘made a significant contribution to the . . . transportation

function of the vessel’’ because he was responsible for ‘‘direc-

ting’’ the employees on the tug and the work barge to reposition

the barge. 110 Ill. Dec. at 758-759, 511 N.E.2d at 938-39. The

appellate court majority’s analysis, like that of the trial court,

excluded any reference to the LHWCA.

In a dissenting opinion, Justice Karns stated Respondent was

not a seaman because his primary job was to unload cargo and

he made no contribution to any ‘‘transportation function’”’ of a

vessel which could be deemed ‘‘significant.”’ 110 Ill. Dec. at

761, 511 N.E.2d at 938.

Petitioner continued to urge the absence of seaman’s status

by filing a Petition for Rehearing in the appellate court, follow-

ed by a Petition for Leave to Appeal to the Illinois Supreme

Court, both of which were denied.

_

REASONS FOR GRANTING THE WRIT

I. The decision of the IHinois appellate court conflicts with

Congress’ legislative determination that ‘‘longshoremen”’

or ‘“‘person[s] engaged in longshoring operations’’ are

employees whose exclusive remedy is compensation under

the Longshore and Harbor Workers’ Compensation Act

(LHWCA).

A. The history and purpose of the Longshore and Har-

bor Workers’ Act (LHWCA).

Congressional efforts to enact a maritime workmen’s com-

pensation statute began immediately after Southern Pacific Co.

v. Jensen, 244 U.S. 205 (1917) in which this Court held that

states could not constitutionally compensate harbor workers in-

jured on vessels afloat on navigable waterways of the United

States under their workmen compensation statutes. On October

6, 1917, Congress amended the Savings to Suitor clause in the

Judiciary Act which granted to district courts ‘‘jurisdiction of

all civil causes of admiralty in maritime jurisdiction.’’ The

amended statute reserved to harbor workers injured in the

course of their employment both the ‘“‘rights and remedies

under the workmen’s compensation law of any state.’’ Act of

October 6, 1917, Ch. 97, 40 Stat. 395. This effort to extend

state workmen’s compensation remedies to harbor workers

foundered when this Court held in Knickerbocker Ice Co. v.

Stewart, 253 U.S. 149 (1920) that the statute was an impermissi-

ble delegation of legislative power by Congress.

Subsequently, on June 10, 1922, Congress again sought to ex-

tend state workmen’s compensation remedies to harbor

workers. It again amended the Savings to Suitor clause to

preserve:

To claimants for compensation for injuries to or death of

persons other than the masters or member of a crew of a

vessel their rights and remedies under the workmen’s com-

pensation law of any state... Act of June 10, 1922, Ch.

216, 42 Stat. 634.

This effort met the same fate as did its predecessor in Knicker-

bocker, when in Washington v. W.C. Dawson & Co., 264 U.S.

219 (1924) this Court held again that the law was an impermissi-

ble delegation of legislative power by Congress to the states.

In 1920, after Knickerbocker but prior to passage of the

LHWCA in 1927, Congress enacted the Jones Act, 46 U.S.C.

§688. It granted to ‘‘seamen’’ injured in the course of their

employment an action for damages based on negligence. Con-

gress did not define who were ‘‘seamen’’ covered by the Jones

Act. Prior to the passage of the LHWCA in 1927, this Court

concluded that the term ‘‘seaman’’ should be given a flexible

meaning and concluded that a longshoreman was a seaman for

purposes of the Jones Act. Jnternational Stevedoring Co. v.

Haverty, 272 U.S. 50 (1926).

Ultimately, on March 4, 1927, Congress passed the Federal

Longshoremen’s and Harbor Workers’ Compensation Act, 33

U.S.C. §901-950. The original statute provided federally ad-

ministered compensation benefits for work-related injury or

death which occurred on navigable waters. The Act did not

define which employees were covered, except in the negative

sense of excluding ‘‘a master or member of acrew.’’ 33 U.S.C.

§902(3) (1927 Act).

Legislative history to the 1927 Act reveals both its purpose

and the class of workers who were its intended beneficiaries.

The Senate Report on the statute stated:

The purpose of this bill is to provide for compensation, in

the stead of liability, for a class of employees commonly

known as ‘longshoremen.’ These men are mainly

employed in loading, unloading, refitting and repairing

ships; but it should be remarked that injuries occurring in

er

=

loading or unloading are not covered unless they are on the

ship or between the wharf and the ship so as to bring them

within the maritime jurisdiction of the United States.

(S.R. No. 973, 69th Cong., Ist Sess. 16 (1927)).'

The House Report on the bili confirms that Congress viewed a

worker’s compensation scheme as a preferred method for pro-

viding workers, injured in the course of maritime employment,

with prompt and certain compensation.

Workmen’s compensation has come to be universally

recognized as a necessity in the interest of social justice bet-

ween employer and employee. It is the modern substitute

for the old common-law remedy afforded through actions

at law for damages, and promptly affords relief to the in-

jured employee by furnishing medical attendance and sup-

plies immediately upon the occurrence of the injury or as

soon thereafter as possible and compensation during the

period of his illness or inability to pursue his usual employ-

ment, and in the case of death, financial assistance to his

dependents, without the delay and expense which an action

at law entails. (H.R. No. 1767, 69th Cong. 2nd Sess. 19-20

(1927)).

See also Nogueira v. New York N.H. & H.R. Co., 281 U.S. 128,

136 (1930). .

Passage of the original LHWCA immediately served to

restrict, in part, the category of workers who qualified for

seaman status under the Jones Act. This Court has recognized

Legislative history to the 1922 Act, declared unconstitutional in

Hushingion v. W.C. Dawson & Co., supra, provides additional

guidance as to the individuals whom Congress considered the

beneficiaries of the Act. The Senate and House reports repeatedly

refer to longshoremen, shiprepairers or workers engaged in loading or

unloading vessels. S.R. No. 94, 67th Cong. Ist Sess. (1921); H.R. No.

639, 67th Cong., 2nd Sess. (1922).

that the LHWCA legislatively overturned the expansive view,

announced in /nternational Stevedoring Co. v. Haverty, supra,

that longshoremen and other harbor workers could be seamen

for purposes of the Jones Act. See Swanson v. Marra Bros.,

328 U.S. 1 (1946).

In 1972, Congress substantially amended the LHWCA. The

test of eligibility for compensation was expanded both as to the

‘*situs’’ of the injury, to include certain areas adjoining

navigable waters, and the ‘‘status’’ of the injured employee, re-

quiring only that the injured worker be ‘‘engaged in maritime

employment.’’ See Director, Etc. v. Perini North River

Associates, 459 U.S. 297, 314 (1983). Perhaps of greatest

significance, for purposes of this case, was the fact that in the

1972 amendments Congress provided, for the first time, a

positive definition of several of the categories of employees it in-

tended to be covered by the LHWCA. As stated by this Court:

[The 1972 amendments] . . . added the requirement that

the injured worker be ‘engaged in maritime employment,’

which it defined to include ‘any longshoreman or other

person engaged in longshoring operations, and any harbor

worker including a ship repairman, shipbuilder, and ship-

breaker . . .’ Northeast Marine Terminal Co., Inc. v.

Caputo, 432 U.S. 249, 264 (1977). (Emphasis added.)

In summary, the legislative history and the statute itself reveal

that by passage of the LHWCA, after the Jones Act, Congress:

(1) made compensation benefits the exclusive remedy for

maritime employees injured in the course of their employment,

including many employees which this Court previously con-

sidered to be ‘‘seamen’’ within the Jones Act, excepting only ‘‘a

master or member of a crew of any vessel;’’ and (2) preferred an

automatic compensation scheme, as opposed to liability suits

for damages. The amendments in 1972 served to broaden and

expressly define certain of the classifications of employees it

covers, whereas the Jones Act contains no such legislative

y

— 10 —

definition. This Court has not directly considered the interrela-

tionship between the LHWCA and the Jones Act since well

before passage of the 1972 amendments. See Part II infra.

B. The LHWCA is the exclusive remedy for employees

who are within its coverage.

In the original LHWCA, and the 1972 amendments thereto,

Congress left no room for doubt that the remedy provided by

the statute was intended to be exclusive for those workers within

its coverage. 33 U.S.C. §905. Thus, a person injured in the

course of his employment on a navigable waterway is either an

‘‘employee’’ covered by the LHWCA or a seaman under the

Jones Act. A worker cannot be both an employee under the

LHWCA, and at the same time be entitled to sue for damages as

a seaman under the Jones Act, since the two statutes are

mutually exclusive. Swanson v. Marra Bros., supra; Pizzitolo

v. Electro-Coal Transfer Corp., 812 F.2d 977 (Sth Cir. 1987),

cert. den. ___-—~ U.S. ___ (1988).

Similarly, railroad workers injured on vessels afloat on

navigable waters are covered exclusively by the LHWCA and

cannot sue under the Federal Employee’s Liability Act (FELA)

45 U.S.C. §51 ef. seg., upon which the Jones Act was based.

Nogueira v. New York N.H. & H.R. Co., 281 U.S. 128 (1930);

Pennsylvania R. Co. v. O’Rourke, 344 U.S. 334 (1953).

C. Respondent Dale was an employee within the mean-

ing of 33 U.S.C. §902(3).

As noted above, in 1972 Congress defined ‘‘maritime employ-

ment’’ as including ‘‘longshoremen’’ or individuals engaged in _

‘‘longshoring operations.’’ Longshoremen have long been

understood to mean workers engaged in loading or unloading

cargo from vessels. Northeast Marine Terminal Co., Inc. v.

Caputo, supra; S.R. No. 973 at p. 16.

—

Regulations, promulgated by the Secretary of Labor pursuant

to the authority of the LHWCA, 33 U.S.C. §939(a), defined

‘*longshoring operations”’ as “‘. . . the unloading . . . of cargo

. . Out of any vessel on the navigable waters of the United

States.’’ 29 C.F.R. §1918.3(i). These regulations have the force

of law. Pearce v. Director, Office of Wks. Compensation, 647

F.2d 716, 726 (7th Cir. 1981).

Plainly, Respondent fits either or both categories. Respon-

dent’s employment duties were of the exact type defined as

longshoring work by Congress and the Department of Labor.

Ninety percent of the Respondent’s workday was spent in the

cab of his crane ‘‘unloading cargo’’ (rock) ‘‘out of vessels’’

(barges brought to the site by a tug).

In fact, the duties of Respondent in this case were almost

identical to those of the injured employee who this Court found

to be a longshoreman in Director Etc. v. Perini North River

Associates, 459 U.S. 297 (1983):

. ..caissons were . . . loaded onto supply barges and towed

across the river to await unloading and installation.

The injured worker . . . was an employee of Perini in

charge of all work performed on a cargo barge used to

unload caissons and other materials from the supply barges

and to set caissons in position... 459 U.S. at p. 301.

D. The opinion of the Illinois appellate court conflicts

with the express language of the LHWCA and

judicial interpretations of it.

In United States v. James, 478 U.S. 597 (1986), this Court

summarized the correct principles for statutory interpretation.

The starting point in statutory interpretation is ‘the

language of the statute itself.’ We assume that the

legislative purpose is expressed by the ordinary meaning of

the words used.

a

We have repeatedly recognized that when * * * the terms of

a statute are unambiguous, judicial inquiry is complete ex-

cept ‘in rare and exceptional circumstances.’ In_ the

absence of a ‘clearly expressed legislative intention to the

contrary,’ the language of the statute itself ‘must ordinari-

ly be regared as conclusive.’ (478 U.S. at ___) (106 S.Ct.

at 3121-22) [Citations omitted]

This Court has long acknowledged the power of Congress to

legislate in respect of matters within admiralty and maritime

jurisdiction. Anickerbocker Ice Co. v. Stewart, supra. \t has

also recognized, in its interpretation of other maritime remedial!

legislation enacted by Congress, that ‘“‘when [Congress] does

speak directly to a question, the courts are not free to ‘supple-

ment’ Congress’ answer so thoroughly that the Act becomes

meaningless."" Mobil Oii Corp. v. Higginbotham, 436 U.S.

618, 625 (1978).

In 1972, Congress determined that “‘longshoremen”’ or those

engaged in ‘‘longshoring activities’’ were to be compensated ex-

clusively by the LHWCA if, like Respondent, they were injured

on a navigable waterway as defined in 33 U.S.C. §903(a). Be-

cause Respondent's duties placed him within the plain meaning

of the LHWCA, he could not ipso facto be a “‘master or

member of a crew’’ under the Jones Act. To hold otherwise

eviscerates the statute.

In Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977

(Sth Cir. 1987), the U.S. Court of Appeals for the Fifth Circuit

extensively reviewed the legislative history of the LHWCA, in-

cluding the 1972 amendments. The court concluded the intent

of Congress was obvious.

Congress could have hardly made it clearer that it intended

to afford complete coverage to employees engaged in the

occupations enumerated in the Act so long as the location

a

13

of the injury met the situs test. (Pizzitolo v. Electro-Coal

Transfer Corp., 812 F.2d at 982.)

The Fifth Circuit held, therefore, when an employee is defin-

ed in the LHWCA, that should be determinative of his status;

the employee cannot sue under the Jones Act.

[BJecause longshoremen, shipbuilders and ship repairers

are engaged in occupations enumerated in the LHWCA,

they are unqualifiedly covered by that Act if they meet the

Act's situs requirements; coverage of these workmen by

the LHWCA renders them ineligible for consideration as

seamen or members of the crew of a vessel entitled to claim

the benefits of the Jones Act. /d. at 983.

In the present case, the majority opinion of the Illinois ap-

pellate court ignored the fact that Respondent’s job of

unloading cargo was specifically defined as ‘‘liongshoring’’ work

within the LHWCA._ The majority failed to discuss the

LHWCA at all in its opinion. As a result, the appellate court's

holding is in conflict with the LHWCA, because it affirms a

Jones Act damage award to an employee Congress chose to

compensate under the LHWCA.

Il. The Iinois appellate court's 2 to 1 majority opinion,

holding Respondent to be covered by the Jones Act, was in

direct conflict with this Court's interpretation of Jones Act

coverage in South Chicago Coal & Dock Co. v. Bassett,

309 U.S. 251 (1940) and Senko v. LaCross Dredging

Corp., 352 U.S. 370 (1957).

Assuming arguendo the Illinois appellate court was justified

in ignoring the LHWCA altogether and proceeding, as it did, to

examine Respondent’s status solely with reference to the Jones

Act, the ultimate conclusion of the majority conflicted with this

Court's holdings in South Chicago Coal & Dock Co. v. Bassett,

309 U.S. 251 (1940) and Senko v. LaCross Dredging Corp., 352

U.S. 370 (1957).

—"

This Court held in Basset? that a worker unloading cargo on a

vessel, Who was not “‘primarily on board to aid in her naviga-

tion” (309 U.S. at 260), was entitled to seek compensation for

injury under the LHWCA, but could not sue under the Jones

Act. Bassett’s job was to unload cargo (coal) from a “‘lighter’’

onto various vessels owned by his employer. He occasionally

tied off or released lines.

This Court held that such workers, engaged in unloading

cargo from one vessel to another, were intended by Congress to

be compensated under the LHWCA and not the Jones Act:

That is our concern here in construing this particular

Statute — the Longshoremen’s and Harbor Workers’

Compensation Act — with appropriate regard to its

distinctive aim.

This Act, as we have seen, was to provide compensation

for a class of employees at work on a vessel in navigable

waters who, although they might be classed as seamen (/n-

ternational Stevedoring Company v. Haverty, supra), were

still regarded as distinct from members of a ‘crew.’ They

were persons serving on vessels, to be sure, but their service

was that of laborers, of the sort performed by longshore-

men and harbor workers and thus distinguished from those

employees on the vessel who are naturally and primarily on

board to aid in her navigation.

. . . the primary duty of the decedent was to facilitate the

flow of coal to the vessel being fueled, . . . he had no duties

while the boat was in motion, . . . he slept at home and

boarded off ship and was called each day as he was

wanted, and was paid an hourly wage. Workers of that

sort on harbor craft may appropriately be regarded as ‘in

=

the position of ‘ongshoremen or other casual workers on

the water.’ (309 U.S. at 259-260.)

Similarly, this Court held in Senko’ that there was a

reasonable evidentiary basis for the issue of Jones Act status to

be submitted to a jury if, but only if, the injured worker’s duties

dealt ‘‘primarily’’ with maintenance of a vessel and/or where

the worker had a “‘significant navigational function’’ when the

vessel was in transit.’ See 352 U.S. at p. 374.

In the present case, Respondent was not aboard any vessel

‘*naturally and primarily . . . to aid in her navigation.’’ Nor did

he have ‘‘primary’’ or ‘‘significant’’ duties relating to

maintenance or navigation of any vessel while ‘‘in transit.’’ In-

stead, Respondent spent virtually his entire work day unloading

cargo from barges and placing it on the river bank. The work

barge, on which his crane was positioned, remained stationary

at all times while Respondent was performing his primary duties

of unloading cargo.

The Illinois appellate court’s majority opinion, holding that

Respondent was entitled to sue under the Jones Act, conflicted

not only with Bassett and Senko but also with other extensive

maritime authority, including: the U.S. Court of Appeals for

the Seventh Circuit in Johnson v. John F. Beasley Const. Co.,

742 F.2d 1054 (7th Cir. 1984), cert. den. 496 U.S. 1211 (1985)

(holding that an ironworker supervising the unloading and

placement of steel beams off the deck of a construction barge

could not sue under the Jones Act); a recent decision of a dif-

ferent panel of this same Illinois state appellate court in Dungey

v. United States Steel Corp., 101 Ill. Dec. 957, 499 N.E.2d 545

(5 Dist. 1986), cert. den. ___. U.S. ___., 108 S.Ct. 75 (1987)

(holding that a mechanic on a crane barge at a river construction

project was not covered by the Jones Act); and decisions from

? Senko was the last case from this Court which directly addressed

the status issue vis a vis the Jones Act.

on

numerous other jurisdictions holding that crane operators who

primarily unload cargo and only incidentaliy help move barges

or handle lines do not have a cause of action under the Jones

Act. See McSweeney v. M.J. Rudolph Corp., 575 F.Supp. 746

(E.D.N.Y. 1983); Lynn v. Heyl and Patterson, Inc., 483

F.Supp. 1247 (W.D.Pa. 1980) aff'd 636 F.2d 1209 (3rd Cir.

1980); Beliomy v. Union Concrete Pipe Co., 297 F.Supp. 261

(S.D.W.Va. 1969) aff’d 420 F.2d 1382 (4th Cir. 1970) cert. den.

400 U.S. 904 (1970); Richardson v. Norfolk Shipbuilding &

Drydock Corp., 479 F.Supp. 259, 265 (E.D.Va. 1979) aff'd 621

F.2d 633 (4th Cir. 1980).

The fact Respondent radioed a tug when the L-1000 needed to

be repositioned did not mean he was aboard ‘‘primarily to aid in

navigation,’’ or that he had ‘“‘significant’’ navigational duties

while in transit, because the task of radioing the tug, and telling

the pilot where the work barge should be placed, would have

only taken a few seconds and had nothing to do with navigation

of the tug itself. Although Respondent occasionally asked the

winchman to let the work barge drift a short distance down-

stream so that he could unload rock onto a different part of the

river bank, courts have held that short drifting movements of

vessels, which are otherwise utilized primarily as work plat-

forms, do not constitute ‘‘navigation’’ for purposes of deter-

mining Jones Act status. See Buna v. Pacific Far East Line,

Inc., 441 F.Supp. 1360, 1364-65 (N.D.Cal. 1977); Powers v.

Bethlehem Steel Corp., 477 F.2d 643, 648 (1st Cir. 1973), cert.

den. 414 U.S. 856 (1973); McNeill v. J.E. Brenneman Co., 1986

A.M.C. 2241, 2249 (E.D.Pa. 1983).

— .

Ill. The Court should grant certiorari in this case, and adopt a

uniform rule for determining how the LHWCA statutory

provisions and regulations should be applied in determin-

ing the status of maritime workers, both to correct the con-

flict between the circuits in defining who is a ‘‘seaman,’’

and to correct the conflict between the circuits in their ap-

proach to the issue.

A. The conflict in defining ‘‘seaman.”’

A clear conflict exists between the circuits in attempting to

judicially define who is a ‘‘seaman’’ under the Jones Act. Some

courts, including the U.S. Courts of Appeal for the Second Cir-

cuit and Fourth Circuit, generally follow Bassett and Senko and

hold that a worker must ‘‘primarily aid in navigation’’ of a

vessel in order to be aseaman. See K/arman v. Santini, 503 F.2d

29, 33 (2nd Cir. 1974), cert. den. 419 U.S. 1110 (1975); Bellomy

v. Union Concrete Pipe Co., supra. Other courts, including the

U.S. Court of Appeals for the Fifth Circuit, hold that anyone

who ‘‘contributes to the mission’’ of a vessel is a seaman. See

Offshore Co. v. Robison, 266 F.2d 769 (Sth Cir. 1959). The

Third Circuit, Seventh Circuit, and the Illinois appellate court

which heard this case, presently hold that a seaman is someone

who makes a ‘‘significant contribution to the transportation

function’’ of a vessel. See Simko v. C & C Marine Maintenance

Co., 594 F.2d 960, 964-965 (3rd Cir. 1979), cert. den. 444 U.S.

833 (1979); Johnson v. John F. Beasley Const. Co., supra;

Dungey v. United States Steel Corp., supra.

Although the Illinois test seems to adhere more closely to

Bassett and Senko, than does the more liberal Robison test, it

still creates problems. By not restricting the ‘‘seaman’”’ label to

those who work aboard a vessel while ‘‘in transit’’ (Senko, 352

U.S. at 374), Illinois has mistakenly applied the Jones Act to

various LHWCA-type harbor workers, including ship

repairmen who merely repair barges in-between voyages, see

Berry v. American Commercial Barge Lines, 71 Ill.Dec. 1, 450

—

N.E.2d 435 (Sth Dist. 1983), and longshoremen who primarily

unload cargo in a confined geographical area, whose only ‘‘con-

tribution to transportation”’ is calling a tug to move a work plat-

form in order to unload at a slightly different location. Dale v.

Luhr Bros., Inc., supra (this case).

Recently, two Justices recognized the need for this Court to

grant certiorari to correct the conflict between the various

jurisdictions in defining who is a seaman. /nternational Oilfield

Drivers, Inc. v. Pickle, __. U.S. , 107 S.Ct. 939 (1987).

B. The Conflict in Approach.

Another problem, and one which is potentially much more

serious than the lack of uniformity in defining the term

‘*seaman,’’ is that the circuits also conflict in their basic ap-

proach to resolving the choice between the LHWCA and the

Jones Act. Some courts hold that, because the LHWCA

specifically defines those workers it intends to cover, trial judges

should begin their analysis of the status issue by first looking to

see whether the injured worker falls within one of the classifica-

tions of employees set forth in that Act. See Pizzitolo v.

Electro-Coal Transfer Corp., supra. Other courts have in-

dicated that an employee who is defined in the LHWCA should

be covered by that statute unless there is proof the worker was a

‘‘member of a crew’’ excluded from LHWCA coverage. See

Duncanson-Harrellson Co. v. Director Etc., 686 F.2d 1336 (9th

Cir. 1982). Still others, including a different panel of the same

Illinois appellate court which decided this case, have begun by

first trying to unravel the test of who is a ‘‘seaman’”’ within their

jurisdiction, while at the same time recognizing that the

| HWCA ‘‘narrows the original scope of the Jones Act.’’ Dun-

gev v. United States Steel Corp., supra, 101 Ill. Dec. at 960, 499

N.E.2d at 548. Finally, some courts have, like the majority in

this case, tried to determine whether the Plaintiff falls within the

particular definition of ‘‘seaman’’ which has been judicially

crafted in their jursidiction, without any reference to the

| HWCA at all.

The problem with an approach, of the kind used by the ma-

jority of the panel which decided this case, is obvious from the

discussion in Part I of this Petition. In 1920, when Congress

enacted the Jones Act to apply to any ‘‘seaman,’’ the LHWCA

did not exist. In 1926, this Court held that the term ‘‘seaman’’

in its broadest sense includes all maritime workers. Jnterna-

tional Stevedoring Co. v. Haverty, supra. Thereafter, Congress

passed the LHWCA in 1927, amended it extensively in 1972 to

define specifically which categories of workers were covered,

and stated that compensation under the LHWCA was

henceforth to be the exclusive remedy for all maritime workers

except a ‘‘master or member of a crew of any vessel.’’ In other

words, following enactment of the Jones Act, Congress chang-

ed matters so that LHWCA coverage is now, in a sense, the

**general rule’’ and Jones Act coverage is the exception. Given

the chronology of development of the two statutes, a court is

truly putting the cart before the horse if it tries to define who is a

**seaman’’ under the Jones Act, without first looking to see

whether the injured worker falls within one of the categories

enumerated in the LHWCA.

The majority opinion of the Illinois appellate court in this

case exemplifies both the conflict between the lower courts in

defining seaman, as discussed in Part IIA above, and the con-

flict in approach discussed in this Part IIB.’

* The conflict between lower courts in defining ‘‘seaman,’’ and the

conflict in their basic approach, are of course related. Many jurisdic-

tions crafted their interpretations of ‘‘seaman’’ prior to 1972. At the

time, there was little in the way of legislative guidance upon which to

rely. Yet many courts continue to mechanically apply their same

pre-1972 test today, without re-examining the issue carefully in light

of the extensive definitions of employees established by Congress in

1972, and the regulations issued by the Department of Labor

thereafter. The fact that Bassett and Senko were both decided prior to

the 1972 amendments further exacerbates the problem.

ey. ee

C. The result: a need for uniformity.

The conflict in determining which test of seaman status

should apply, and which approach to use, has resulted in chaos.

Private parties cannot predict, with any confidence, how a par-

ticular court will rule on the status issue or, therefore, how par-

ticular injuries should be processed and compensated. Litiga-

tion over the issue has accordingly become frequent, un-

necessarily consuming judicial resources. Moreover, the lack of

uniformity and guidance is obviously causing confusion and

therefore mistakes.‘

The problems which have developed during this Court’s

30-year silence, subsequent to Senko, have long been recog-

nized. See Gilmore and Black, The Law of Admiralty (2d Ed.

1975) §6-21 p. 334. The present case represents an “pvortunity

for this Court to go beyond merely defining who is a ‘‘seaman,”’

* The judge who wrote the majority opinion of the Illinois appellate

court in this case noted at the outset of his analysis:

The first problem is stating a test of seaman’s status in the

absence of any substantial guidance from the Jones Act or from

the United States Supreme Court. 110 Ill.Dec. at 758, 511

N.E.2d at 935.

One U.S. district judge in New Orleans, who was recently trying to

interpret the definition of ‘‘seaman’’ in his Circuit, stated in exaspera-

tion:

The Congress which passed the Jones Act would doubtless be

amazed to learn that (the plaintiff), a shore-based part time

cleaning lady, has now become a ‘seaperson,’...* **... this

Court’s inclination is towards a contrary conclusion. Indeed,

vesting a shore-based, part time employee who thrice-weekly

only cleaned and provisioned a pleasure boat while moored in its

yacht-harbor slip, with the peculiar rights and special remedies

fashioned to protect the unique interests of those who face the

perils of the sea, expands the meaning of the term ‘seaman’ to

new limits.

Lunsford v. Fireman’s Fund Ins. Co., 635 F.Supp. 72, 74-75 (E.D.La.

1986).

oe, eee

and to establish a uniform rule for lower courts to apply in

determing how maritime workers should properly be compen-

sated for injury, taking into account both the LHWCA and the

Jones Act.

Petitioner believes an approach, of the kind set forth in Piz-

zitolo v. Electro-Coal Transfer Corp., supra, would have at

least two major advantages. First, it would probably offer the

greatest ease of application. As noted previously, Congress did

not define the term ‘‘seaman’’ under the Jones Act. However,

in the 1972 amendments to the LHWCA, Congress did specify

with reasonable clarity, which types of maritime workers were

to be covered exclusively by that compensation act. Moreover,

the Department of Labor has, at the request of Congress, issued

extensive regulations defining in detail which employees are

covered by the LHWCA. Using the Pizzitolo approach, trial

courts could determine readily in most instances whether a

worker comes within one of the specifically-defined LHWCA

categories. See, e.g., Thibodeaux v. Torch, Inc., 674 F.Supp.

1240 (W.D.La. 1987). Second, a Pizzito/o-type approach seems

to be most consistent with the intent of Congress. If lower

courts are instructed to begin with an examination of the

LHWCA definitions, they will be more likely to recognize the

fact that Congress intended, through the LHWCA and the 1972

amendments, to broaden LHWCA coverage for port workers

and to restrict Jones Act coverage to those who mainly serve

aboard vessels on voyages. Also, using the LHWCA as a start-

ing point is logical given the legislative history indicating a con-

gressional preference for automatic compensation benefits, like

those provided for in the LHWCA, rather than suits for liability

damages under the Jones Act. (See House Rep. No. 1767, 69th

Cong. 2d Sess., supra).

A sound analysis should, at the least, require lower courts to

consider the LHWCA instead of ignoring it altogether as was

done in this case.

CONCLUSION

Congress intended the LHWCA to be the exclusive remedy

for workers falling within its coverage. Respondent, a crane

operator whose primary duties were to unload rock from barges

onto the bank, was expressly defined as a longshoreman by the

LHWCA and Department of Labor regulations. He was not a

‘crewmember of a vessel’’ as judicially defined by this Court in

South Chicago Coal & Dock Co. v. Bassett and Senko v.

LaCross Dredging Corp.

This Court should grant certiorari to review the opinion of

the Illinois appellate court, which erroneously found Respon-

dent to be a Jones Act seaman, and should take this opportunity

to correct the existing conflicts between circuits by fashioning a

uniform approach which would require lower courts to consider

the classifications of workers specified in the LHWCA when

ruling on the status of injured maritime workers.

Respectfully submitted,

Daryl F. Sohn

John R. Halpern

GOLDSTEIN and PRICE

818 Olive Street

1300 Paul Brown Building

St. Louis, Missouri 63101

314-421-0710

Counsel for Petitioner

March 18, 1988

a po

CERTIFICATE OF SERVICE

I, Daryl F. Sohn, a member of the Bar of this Court, hereby

certify that on this 18th day of March, 1988, three copies of the

Petition for Writ of Certiorari in the above-styled case were

mailed, first class postage prepaid, to Bruce Cook, Cook,

Shevlin, Keefe & Chatham, 12 West Lincoln Street, Belleville,

Illinois 62220, counsel for “ZL a

aryl F. F. Sohn

APPENDIX |

APPENDIX A

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

No. 5-86-0583

James Dale,

Plaintiff-Appellee,

vs.

Luhr Bros., Inc.,

Defendant-Appellant.

Appeal from the Circuit Court

of St. Clair County.

Honorable Robert L. Craig,

Judge Presiding.

(Filed: July 29, 1987)

JUSTICE WELCH delivered the opinion of the court:

Plaintiff James Dale commenced this Jones Act (46 U.S.C.

$688 (1983)) case in St. Clair County. After a bench trial, the

judge found defendant Luhr Bros., Inc. liable to plaintiff in the

amount of $1,654,704. Defendant appeals. There is no cross-

appeal.

Defendant employed plaintiff as a heavy machinery operator.

Plaintiff spent about half his employment for defendant on land

and the other half on the water. At the time of his injury plain-

tiff was in his second week as the second shift dragline operator

on the L1000, a 150- to 175-foot-long spud barge engaged in

revetment at a construction site on the Illinois bank of the

Mississippi River. Since beginning this two-week period plain-

tiff had no other duties. His work week as dragline operator

consisted of six 10-hour days a week. According to the record,

the chief difference between a dragline and a crane is that a

a

— oo

dragline’s bucket is affixed to the boom by cables rather than by

a rigid connection. Revetment, or erosion control, in this case

consisted of riprapping or paving the river bank with rock. The

L.1000 was called a spud barge because of the spuds which held

the barge in place on the river bottom. The L1000 was equipped

with a winch house and a portable toilet. The remainder of the

crew of the L1000 consisted of an oiler responsible for

maintenance of the dragline, plus a winchman who controlled

the spuds and a laborer who kept the L1000 clean, tied off rock

barges brought by a tugboat and ‘‘switched out the empties.”’

Plaintiff handled no lines, did not clean or maintain the barge,

did not repair leaks or perform any pumping, and did not raise

or lower the spuds when the L1000 was moved. When plaintiff

worked on the L1000 he ate and slept at home, except for the

mid-shift meal which he generally ate on the L1000. The

dragline was not affixed to the deck of the L1000. It could be

moved about on the L1000 or driven off the L1000 and used on

the shore. When plaintiff began a shift on the L1000 he usually

rode to the L1000 on the tugboat, the MV Al Bob, which had its

own crew. Plaintiff wore a radio with which he kept in constant

contact with the MV Al Bob. There were two common means

of locomotion of the L1000 during a work shift. Usually the

MV AI Bob moved the L1000 with no physical assistance from

plaintiff, although plaintiff signalled the tug when plaintiff

needed the L1000 moved and told the pilot of the MV Al Bob

where to move it. According the defendant’s witnesses this

method of locomotion was used 90 to 95 percent of the time. On

the other occasions, when the MV Al Bob was not available,

plaintiff controlled the move by dropping the dragline bucket to

the river bed in a direction determined by whether upstream or

downstream movement was desired. According to one of

defendant’s superintendents this method was generally used for

movements of no more than 150 feet. Regardless of which

method of travel was used, the winchman raised the spuds

according to plaintiff’s signals consisting of numbered horn

blasts, and when the L1000 reached the desired position plain-

a |

—

tiff signalled the winchman by horn blasts to drop the necessary

spuds. According to plaintiff, if the dragline was dragging

(cleaning) the bank, the L1000 was moved as often as every 15

minutes and all of the movement, up to ‘‘a couple thousand”’

feet per shift, was accomplished without the aid of the tug.

There was also testimony that on occasion dragline operators

moved empty rock barges using the dragline bucket.

Plaintiff testified at trial that on July 11, 1983, he was climb-

ing to the dragline’s cab to begin his shift when his left foot slip-

ped on the dragline track; he lost his grip on a rope handhold,

fell to the deck, and was injured. Apparently the rope was tied

to the cab of the dragline by agents or servants of defendants.

The manufacturer equipped the cab of the dragline, a Bucyrus-

Erie 88B, with a handrail for mounting. Plaintiff’s expert

witness, Professor Donald Creighton, testified that in his opi-

nion the rope handhold was dangerous because it was made of

rope and was not rigid. Professor Creighton, a mechanical

engineer, testified he had never seen a crane of this type, never

tried mounting the crane using this particular handhold, did not

talk to anyone who used it to find out if they thought it was

safe, and had never before testified as an expert on the subject

of safe access to cranes. Plaintiff testified the rope handle made

mounting the dragline easier and he used this method to mount

the dragline many times in the past without mishap. Three of

defendant’s supervisory personnel and seven union-member

employees testifed at trial on defendant’s behalf, as did one ex-

pert witness, a marine surveyor and engineer. One supervisor

testified the rope handhold was installed in the late 1970’s and

was still in use, and no accidents had been attributed to it. The

other two supervisors testified the handhold was in use 10 years

without problem. Each of the union-member employees

testified he used the handhold many times and felt it was safe.

Defendant’s expert testified that in his opinion based on the

trial testimony and his observations made while climbing up and

down from the cab of the dragline the handhold was safe and

tala eee

— seen

complied with OSHA (the Occupational Safety and Health Act

of 1970 (29 U.S.C. §651 ef seq. (1983)) regulations. Many of

the witnesses described or demonstrated the process of using the

rope handle to gain access to the cab, and photcgraphs of the

handle and its setting were in evidence at trial.

Evidence at trial indicated plaintiff aggravated a prior injury

to his back in the fall. After the fall he underwent surgery to

fuse two vertebrae in his lower back. The surgery was only part-

ly successful. An orthopedic surgeon testifying in defendant’s

behalf stated that in his opinion a second surgery had about an

80 percent chance of success. Another expert medical witness

deposed that in his opinion the chance of success was as much as

95% in light of recently developed techniques. This expert was

the same surgeon who performed the original surgery. A

treating physician deposed was sure plaintiff would be ‘‘per-

manently status quo, pain, cane and unable to work.’’ Plaintiff

testified Dr. Vilray Blair at Barnes Hospital told him the prog-

nosis was not good for a second surgery where the first was un-

successful and that plaintiff might come out worse than he went

in. Plaintiff testified he understood there were no guarantees

and he did not want to undergo a second surgery under these

circumstances.

Defendant argues the trial court erred in concluding plaintiff

was a ‘‘seaman’’ (46 U.S.C. §688(a) (1983)) entitled to sue his

employer under the Jones Act for negligence. Defendant con-

cedes plaintiff helped move the L1000 but characterizes his help

as occasional and comprising a minuscule portion of plaintiff’s

responsibilities. Dungey v. United States Steel Corp. (1986),

148 Ill.App.3d 484, 499 N.E.2d 545, the last word by this court

on the issue of seaman status, demonstrates the two central

problems with applying the Jones Act to the facts of any par-

ticular case.

The first problem is stating a test of seaman’s status in the

absence of any substantial guidance from the Jones Act or from

= * on

the United States Supreme Court. In Dungey v. United States

Steel Corp. this court followed the test set forth by the Seventh

Circuit of the federal court of appeals, reasoning that to do

otherwise would result in a test being applied to a case filed in an

Illinois circuit court which was different from the test applied if

the case were filed in an Illinois federal district court. That test,

which we adhere to in the case at bar, is as follows: There is an

evidentiary basis for submitting to the trier of fact the questio

of the injured party’s status as a seaman if:

**(1) the person injured had a more or less permanent con-

nection with a vessel in navigation, and (2) the person in-

jured made a significant contribution to the maintenance,

operation, or welfare of the transportation function of the

vessel.”’

Johnson v. John F. Beasley Constr. Co. (7th Cir. 1984), 742

F.2d 1054, 1062-63, cert. denied (1985), 469 U.S. 1211, 84

L.Ed.2d 328, 105 S.Ct. 1180; Dungey v. United States Steel

Corp. (1986), 148 Ill.App.3d 484, 493-96, 499 N.E.2d 545,

552-53.

The second problem in determining seaman status, that of ap-

plying the test, is the more vexing of the two, as demonstrated

by Dungey v. United States Steel Corp., in which this court was

unanimous as to the test to be applied but disagreed as to its ap-

plication. A majority of this court concluded Dungey was not a

seaman as a matter of law because Dungey’s only duties were

the oiling of a crane situated on a barge and repair of the boom

of the crane; Dungey ‘‘performed no work in connection with

the transportation function of the barge * * *.’’ (148 Ill.App.3d

484, 495, 499 N.E.2d 545, 553.) In contrast, here plaintiff

physically assisted with numerous albeit brief physical

movements of the L1000, and was responsible for directing the

crew of the L1000 and the pilot of the tug when the L1000 was

moved even when the moverent was accomplished without

plaintiff’s physical assistance.

—

In Johnson v. John F. Beasley Constr. Co., the Seventh Cir-

cuit concluded Johnson, an ironworker, was not a seaman.

Johnson was employed by a structural steel contractor to work

in the removal and replacement of a span of a railroad bridge

over the Illinois River. Plaintiff, a foreman in charge of the

crew performing the work, was transported daily by tug to a

barge used as a work platform in the river channel. The barge

supported a large crane used in the removal and erection of

structural steel. The barge had no motive power, but was

nonetheless a vessel in navigation; a tug moved it downstream

where construction material was loaded onto it from trucks on

shore_with the use of a crane. On such occasions Johnson

assisted in the loading and handled lines. Johnson v. John F.

Beasley Constr. Co. is distinguishable from our case, in which

plaintiff physically assisted in moving the L1000 on a regular

basis and supervised the moving on a continual basis. Other

distinguishable cases urged by defendant for factual comparison

include McSweeney v. M.J. Rudolph Corp. (E.D.N.Y. 1983),

575 F.Supp. 746 (the plaintiff’s deceased was never on the barge

when it was moving); Lynn v. Heyl & Patterson, Inc. (W.D.Pa.

1980), 483 F.Supp. 1247 (the plaintiff, an ironworker, was

aboard the barge on various occasions but did not operate the

crane and had no fixed or usual duties with respect to the

barge); Bellomy v. Union Concrete Pipe Co. (S.D.W.Va. 1969),

297 F.Supp. 261 (the crane the plaintiff operated was on the

dock); Buna v. Pacific Far E. Line, Inc. (N.D.Cal. 1977), 441

F.Supp. 1360 (held, not a Jones Act ‘‘vessel’’); McNeill v. J.E.

Brenneman Co. (E.D.Pa. 1983), 1986 A.M.C. 2241 (same), and

Powers v. Bethlehem Steel Corp. (\st Cir. 1973), 477 F.2d 643 |

(the plaintiff performed maintenance on a pier from a raft tied

to the pier). We observe little significance in defendant’s argu-

ment that the dragline could be removed from the vessel and

used on land.

In light of the above discussion, we cannot conclude

plaintiff’s duties were not those of a Jones Act ‘‘seaman”’ as a

— >

matter of law. In our opinion the issue was at most a question

of fact for the judge to determine as the finder of fact.

Defendant argues the L1000 was not a ‘‘vessel in navigation,”’

citing cases in which a barge used primarily as a construction

platform was held not to be such a vessel. The issue was one of

fact for the trial judge to determine unless it could be decided as

a matter of law. (See Dungey v. United States Steel Corp.

(1986), 148 Ill.App.3d 484, 489, 499 N.E.2d 545, 549.) The

cases defendant cites concern ‘‘platforms’’ unlike the L1000 in

configuration or use: Bernard v. Binnings Constr. Co. (Sth Cir.

1984), 741 F.2d 824 (the parties stipulated the work punt was us-

ed solely as ‘‘a small work platform’’); Smith v. Massman Con-

str. Co. (Sth Cir. 1979), 607 F.2d 87 (the plaintiff, a welder,

worked upon a floating caisson tethered to the bank while being

prepared for incorporation into a bridge column); Leonard v.

Exxon Corp. (Sth Cir. 1978), 581 F.2d 522 (the platform con-

sisting of four barges was moored to the bank); Cook v. Belden

Concrete Products, Inc. (Sth Cir. 1973), 472 F.2d 999 (the

moored platform, a barge, moved only along plaintiff’s dock),

and Buna v. Pacific Far East Line, Inc. (N.D.Cal. 1977), 441

F.Supp. 1360 (the plaintiff admitted that ‘‘at the present time,

the paint float has the function of a floating stage used by

defendant’s servants who work within the harbor * * *.’’). The

L1000 was not tethered or moored. As equipped it was capable

of locomotion and did move itself, not within some harbor or

still water but upstream and downstream upon the Mississippi

River. In our opinion it could not be said as a matter of law that

the L1000 was a mere work platform; the issue was correctly

resolved as one of fact. See Summerlin v. Massman Constr.

(4th Cir. 1952), 199 F.2d 715 (reversing trial court’s holding that

a fireman on a barge on which a crane was erected was not a

seaman upon a vessel engaged in navigation).

Defendant argues plaintiff was injured during his second

week aboard the L1000 and thus as a matter of law did not have

a “‘more or less permanent connection’’ with the L1000. (John-

— - ee

son vy. John F. Beasley Constr. Co. (7th Cir. 1984), 742 F.2d

1054, 1063, cert. denied (1985), 469 U.S. 1211, 84 L.Ed.2d 328,

108 S.Ct. 1180; Dungey v. United States Steel Corp. (1986), 148

Ill. App.3d 484, 493-96, 499 N.E.2d 545, 552-53.) The issue was

one of fact for the trial judge to determine unless it could be

decided as a matter of law. (See Dungey v. United States Steel

Corp. (1986), 148 Ill.App.3d 484, 489, 499 N.E.2d 545, 549.)

On this evidence the trial court was entitled to conclude plaintiff

was injured during the second week of a more or less permanent

assignment aboard the L1000, as there was no affirmative

evidence that plaintiff’s assignment was of a lesser duration.

(See Longmire v. Sea Drilling Corp. (Sth Cir. 1980), 610 F.2d

1342, 1347 n.6 (‘‘Our hoiuing on this issue should not be taken

to mean ‘once a platform worker, always a platform worker,’

nor that one who has been a platform worker cannot become a

seaman until he has been working as a seaman for some time.

* * * What it to be avoided is engrafting upon the statutory

classification of a ‘seaman’ a judicial gloss so protean, elusive,

or arbitrary as to permit a worker to walk into and out of

coverage in the course of his regular duties.’’) We conclude the

issue was properly resolved as one of fact.

Defendant argues the trial court erred in finding defendant

negligent. This court will not disturb a trial court’s finding and

substitute its own opinion unless the finding is against the

manifest weight of the evidence. Especially where the evidence

is contradictory, the trial court is in a superior position to

weigh the evidence and determine the preponderance thereof.

(Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 256, 226

N.E.2d 624, 626.) The finding of negligence was supported by

photographic exhibits of the accident scene including the rope

handhold, by numerous descriptions and demonstrations of the

process of entering the dragline cab and by expert testimony

that the handhold was unsafe. Plaintiff’s contention, accepted

by the trial court, was that use of the rope handhold exerted a

horizontal force on the user’s body so that a loss of grip natural-

ly resulted in the user landing on his back instead of his feet, and

that this was what happened to plaintiff. There was expert and

lay testimony that the handhold was safe, but the credibility of

the witnesses and the weight of the testimony are for the trier of

fact to determine.

Defendant argues the award of damages was excessive. The

trial court found the 38-year-old plaintiff permanently

unemployable as an operating engineer, that plaintiff’s refusal

to have additional surgery was not unreasonable in light of its

poor prognosis, and that plaintiff’s condition was extremely

painful and seriously inhibited his recreational, social and fami-

ly activities. The parties stipulated plaintiff’s medical expenses

as of trial were $24,593.91. An economist testified plaintiff lost

past wages of $78,424 and would lose future wages with a pre-

sent value of as much as $684,936 based on certain stated

assumptions. The court accepted these wage loss figures, assess-

ed plaintiff’s damages to be $2,363,862 (i.e., three times the sum

of medical expenses and lost past and future wages) and reduced

that amount by 30 percent to reflect plaintiff’s contributory

negligence to that extent.

A reviewing court will not disturb a trial court’s findings as to

damages unless against the manifest weight of the evidence.

(Pathman Constr. Co. v. Hi-Way Elec. Co. (1978), 65

Ill.App.3d 480, 490, 382 N.E.2d 453, 461.) Defendant argues

the trial court should have reduced plaintiff’s damages in light

of evidence that plaintiff might be able to work again as a heavy

equipment operator after surgery. In light of the evidence that

another surgery might worsen plaintiff’s condition, we do not

believe the trial court was obligated to accept defendant’s con-

tention that plaintiff was in effect obligated to opt for the sec-

ond surgery. We are mindful as was the trial court of defense

counsel’s thorough cross-examination of plaintiff’s expert

witness on the subject of future lost wages. However, the

weight of that testimony and the credibility of that witness were

for the trier of fact to determine. See People v. Bilyew (1978),

73 Ill.2d 294, 302, 383 N.E.2d 212, 215.

— A-10 —

For the foregoing reasons, the judgment of the circuit court

of St. Clair County is affirmed.

AFFIRMED.

HARRISON, J., CONCURRING.

KARNS, P.J., dissenting:

I find it difficult to equate the duties of plaintiff, a member of

the Operating Engineers Union, with those of a ship’s captain.

The work barge had no motive power and obviously could only

be moved downstream by flotation when the mooring spuds

were removed.

Assuming the barge to be a vessel in navigation, a matter not

free from doubt, I do not consider plaintiff to be aseaman. We

recently reviewed the cases dealing with seaman status in

Dungey v. United States Steel Corp. (Sth Dist. 1986), 148

Ill. App.3d 484, 499 N.E.2d 545. There, the plaintiff, a member

of the Operating Engineers Union, worked as an oiler on a con-

struction crane affixed to a work barge in the Mississippi River.

The barge had no motive power but was occasionally moved a

few feet downstream by manipulating mooring spuds. We

adopted the test of Johnson v. John F. Beasley Construction

Co. (7th Cir. 1984), 742 F.2d 1054. A seaman is one who is a

master or member of the crew of a vessel in navigation whose

duties make a significant contribution to the transportation

function of the vessel.

I would conclude that our disposition in Dungey would

dispose of plaintiff’s status in the instant case.

iis.

— ill ~

APPENDIX B

_ IN THE CIRCUIT COURT

OF THE TWENTIETH JUDICIAL CIRCUIT

ST. CLAIR COUNTY, ILLINOIS

NO: 83-L-787

James Dale,

Plaintiff,

VS.

Luhr Bros., Inc.,

Defendant.

ORDER

(Filed: July 28, 1986)

This cause came before the Court for hearing as a bench trial

on April 28, 1986. Witnesses were sworn, testimony was heard,

exhibits were received. Having carefully considered the admissi-

ble testimony and evidence, the Court makes the following find-

ings and enters the judgment hereinafter set forth.

Plaintiff brings this action pursuant to the Jones Act, Title

46, Section 668, U.S.C. Plaintiff was an employee of defen-

dant, Luhr Bros., Inc. A crucial issue, therefore, is whether or

not plaintiff was a seaman within the meaning of the Jones Act

and the General Maritime Law of the United States at the time

he suffered his injuries.

Narrowly stated, plaintiff’s principal duty in the course of his

employment was to operate a dragline crane mounted on defen-

dant’s barge, known as the L-1000. The L-1000’s function was

to transfer rock from a rock barge for revetment of the

shoreline of the Mississippi River near the mouth of the

Kaskaskia River. However, the evidence adduced at the trial of

this case discloses that plaintiff performed many other responsi-

— A-12 —

ble duties in connection with the function of the barge L-1000

and other vessels appurtenant thereto. A careful review and

consideration of all the testimony convinces this Court that

plaintiff was a seaman under the traditional criteria expressed

by Justice Welch of our Appellate Court in Berry v. American

Commercial Barge Lines, 114 Ill. App.3d 354, 71 Ill. Dec. 1, 450

N.E.2d 436 (Sth District 1983) (reflecting the view of the most

prominent federal authority [Offshore Co. v. Robinson, 266

F.2d 769, (Sth Circuit)], or even under the arguably more

restrictive criteria set forth in Johnson v. John F. Beasley Con-

struction Co., 742 F.2d 1054 [7th Circuit]).

To be a seaman within the meaning of the Jones Act and the

General Maritime Law, plaintiff must show the following:

(1) That he was injured upon a vessel in navigation; and,

(2) That he was aboard primarily to aid in navigation;

and,

(3) That he had a more or less permanent connection

with the vessel or with a specific group or fleet of

vessels. (Berry, supra, 114 Ill. App.3d 354, 359, 71 Ill.

Dec. 1, 5, 450 N.E.2d 436, 440.)

The Court in Berry also stated that in order to meet the re-

quirement that a crew member’s duties be ‘‘primarily in aid of

navigation,’’ all that is necessary is that the duties of the plain-

tiff must have contributed to the vessel’s function or the ac-

complishment of its mission.’’ (Berry, supra, 114 Ill.App.3d

354, 361, 71 Ill. Dec. 1, 7, 450 N.E.2d 436, 442.) As recently as

last year, the Fifth Circuit Court of Appeals held that a drilling

rig inspector was correctly found to be a seaman as a matter of

law because ‘‘(t)he work he performed contributed to the func-

tion of the vessel as to the accomplishment of its mission... ”’

(Tulos v. Resource Drilling, 750 F.2d 380, 384, Sth Circuit

1985).

— A-13 —

Plaintiff has suggested in his post-triai memorandum that the

Court in Johnson v. John F. Beasley Construction Co., 742

F.2d 1054, (7th Circuit 1984) adopted more restrictive criteria

for determining whether or not a plaintiff is a seaman, to wit, in

that: ‘**... the person injured made a significant contribution

to the maintenance, operation or welfare of the transportation

function of the vessel.’’ (Johnson, 742 F.2d at 1063.) (cf: Bar-

ret v. Chevron U.S.A., Inc., 781 F.2d 1067 [Sth Cir. 1986],

following Robinson and rejecting Johnson, and Tulos v.

Resource Drilling, 750 F.2d 380 [ Cir. 1985].) As the Court

has already stated, the Court is convinced that the plaintiff

herein meets the criteria set forth in Johnson as well as the tradi-

tiona! criteria explicated in the other cases cited.

Michael Habel, Luhr Brother’s Vice President of Insurance

and Safety, testified when called by plaintiff under Section

2-1102 of the Illinois Code of Civil Procedure that Luhr

Brothers owns 20 tugboats of various sizes, that Luhr. Brothers

owns or operates approximately 200 barges, including eight

barges purchased for revetment work. A revetment job re-

quired two barges — a spud barge with a crane mounted

thereon, such as was depicted in Plaintiff’s Exhibit No. #4, and

a rock barge. The rock barge would be tied off to the spud

barge; the crane on the spud barge transferred rock from the

rock barge to the shoreline for bank stabilization or revetment.

A spud barge crew consisted of four men. An operator (plain-

tiff in this particular case) and an oiler were assigned to the

dragline, a laborer was assigned to the barge to keep the barge

clean, to clean up grease and other foreign substances, and a

winch operator whose primary duty was to lower the spuds on

the spud barge to the river bed to keep the barge in a fixed loca-

tion, and to raise them upon being signalled to do so by the

crane operator when it became necessary to move to a different

location.

A tugboat, the Al Bob in this particular case, would transport

the barge crew from the shore to the barges and back during

— A-l4 —

shift changes. Also, the Al Bob was ordinarily used to move the

barges from one location to another. However, plaintiff

testified that if the tugboat was not around when it became

necessary to move the barge, he would have the spud operator

pull the spuds and move the barge to a new location by throwing

the dragline bucket out in the river and in effect drag the barge

to a new location. Gene Gerris, a Luhr Brothers’ river

superintendent, testified that if the rock barge needed to be

moved, 90% of the time the Al Bob would move it, and 10% of

the time they would raise the spuds and let it move on

downstream. Ben Jackson, another Luhr Brothers’ dragline

operator, testified that he occasionally moved the rock barges

with the bucket of the dragline. James Lampert, the evening

shift operator of the Al Bob, testified that he normally moved

the L-1000 spud barge. Lampert testified that the spud barge

was in his sight 95% of the time, and that the spud barge moved

itself 5% of the time. Lampert also testified on cross examina-

tion that he had been tied off to the spud barge when the spud

barge would move itself and his boat.

Jerry Pearson, piaintiff’s direct supervisor, testified that nor-

mally the boat would move the barge if it was there. He further

testified that the tug moved the barge at least 75% to 80% of the

time; if it was being moved up river, it normally had to be

moved by the tug. The crane operator would normally work off

of the bank when moving the barge because if the barge gets in

deep water the operator cannot control it.

Having considered the testimony of all the witnesses, the

Court concludes, and so finds, that the plaintiff was, in fact, in-

jured upon a vessel in navigation, and that he was aboard

primarily to aid in navigation. With regard to whether plaintiff

had a more or less permanent connection with the vessel as a

group or fleet of vessels, plaintiff testified that he had been a

crane operator from 1978 to the time of his injury. He testified

that since he had been an operator, he had worked on bridges,

the Mississippi River, the Kaskaskia River, and on the Alton

— A-15 —

Lock and Dam project. Plaintiff had worked on this particular

project approximately two months, part of the time as a master

mechanic. Plaintiff estimated that 25% of his work in the last

four to five years had been off the river. The Court, therefore,

finds that plaintiff had a more or less permanent connection

with the L-1000, and in fact it appears from plaintiff’s

testimony that he had a more or less permanent connection with

defendant’s fleet of barges.

The Court also finds that plaintiff made a significant con-

tribution to the transportation function of the L-1000. As

previously noted, the evidence shows that the L-1000’s function

was to transfer rock from an adjacent rock barge to the shore of

the Mississippi River for bank stabilization. Plaintiff frequently

moved the L-1000 and its rock barge from one location to

another by use of the dragline. When the vessel was to be

moved, the spuds were lifted at his direction, and even when the

switch boat, The Al bob, was present to move the barges, any

movement made by it was done at plaintiff’s request and direc-

tion.

Plaintiff suffered a severe back injury when he fell while at-

tempting to mount the Bucyrus-Erie 88-B dragline on the

L-1000 by means of a rope defendant had affixed to the drag-

line. The rope caused persons mounting the dragline to lean out

to obtain leverage in the process of elevating themselves to the

top of the dragline’s tracks, which were relatively slick. It is un-

disputed that the manufacturer of the 88-B provided a method

of mounting the crane by use of a step and handhold (Plaintiff’s

Exhibit No. 7, Defendant’s Exhibit No. E-2). It is also un-

disputed that the 88-B’s manufacturer had nothing to do with

the defendant’s use of a rope to mount this crane — the rope

was defendant’s idea. It is this Court’s opinion based on all the

evidence, and the Court so finds, that to use a non-rigid rope as

a handhold for mounting this crane was very dangerous

(Defendant’s Exhibit E-2 - E-14) and constituted negligence. It

— A-16 —

is equally clear to this Court that plaintiff was aware of the

mount/dismount system provided by the manufacturer, and his

use of the alternate provided by defendant constituted con-

tributory negligence (indeed, plaintiff conceded in argument

and in a letter to the Court subsequent to his post-trial

memorandum that he could be found contributorily negligent).

The Court has reviewed the medical testimony and finds that

plaintiff is permanently unemployable as an operating engineer

as the result of his fall, the failed spinal fusion and the conse-

quent pseudoarthrosis. The Court carefully observed plaintiff

during his testimony at trial and it is apparent that his back con-

dition is extremely painful. Plaintiff takes Tylenol III (with co-

deine) three times a day and takes Percodan at night if necesary

to relieve his pain, which he described as like sticking a knife in

him. Plaintiff is unable to walk without the use of his cane, and

his day-to-day activities are severely restricted. Although there

was medical testimony that additional surgery on plaintiff’s

back might be successful, plaintiff perhaps put it most succinct-

ly when he testified that people at Barnes Hospital had told him

that a second operation might make him better, might make

him worse, or leave him the same. Plaintiff said he considered

such a prognosis as giving him ‘‘about a 33% chance.’’ Plain-

tiff’s refusal to have additional surgery is not unreasonable in

light of its poor prognosis.

The Court finds, based on the medical evidence, that plaintiff

suffers and will continue to suffer permanent and substantial

pain and disability proximately caused by the accident here in

question. The Court further finds that plaintiff’s disability has

consequences reaching beyond physical incapacity to work;

plaintiff’s injury seriously inhibits and restricts his recreational,

social and familial activities, all of which affects the amount of

plaintiff’s damages.

The Court is not unmindful of defendant’s thorough cross ex-

amination of Dr. Leroy Grossman, plaintiff’s economist, nor

— Api? —

the evidence presented by defendant on the question of plain-

tiff’s future employment capabilities and potential lost wages.

Therefore, the Court finds that Dr. Grossman’s testimony pro-

vides the best measure of plaintiff’s future lost earnings. As-

suming that plaintiff would have worked until age 66,

Grossman placed the present value of plaintiff’s future lost

earnings at $684,936. Grossman calculated plaintiff’s lost earn-

ings from the date of his injury to March 31, 1985, at $78,424.

The parties stipulated that plaintiff’s medical expenses to the

date of trial amounted to $24,593.91.

The court assesses plaintiff’s damages at $2,363,862. The

Court finds that plaintiff was guilty of contributory negligence

in a comparative amount of 30%. The Court, therefore, enters

judgment for plaintiff and against defendant in the sum of ONE

MILLION SIX HUNDRED FIFTY FOUR THOUSAND

SEVEN HUNDRED FOUR DOLLARS ($1,654,704) plus costs

of this action.

DATED This 28th day of July, 1986.

ENTER:

/s/ Robert L. Craig

Associate Circuit Judge

— A-18 —

APPENDIX C

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

No. 83-L-787

James Dale,

Plaintiff-Appellee,

Cross-Appellant,

VS.

Luhr Bros., Inc.,

Defendant-Appellant,

Cross-Appellee.

Appeal from the Circuit Court

of St. Clair County.

ORDER

(Filed: August 18, 1987)

This cause having been considered on appellant’s petition for

rehearing and application for certificate of importance and the

cou:t being fully advised in the premises:

IT IS THEREFORE ORDERED that appellant’s petition for

rehearing and application for certificate of importance shall be,

and the same hereby are, DENIED.

— A-19 —

APPENDIX D

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

December 22, 1987

Goldstein & Price

Attorneys at Law

818 Olive St., S#1300

St. Louis, MO 63101

No. 65787 - James Dale, respondent, v. Luhr

Bros., Inc., petitioner. Leave to ap-

peal, Appellate Court, Fifth District.

The Supreme Court today DENIED the petition for leave to

appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate Court

on January 13, 1988