Petition for Writ of Certiorari — Farrell Lines, Inc. v. Rivera

ALE Cory | "T}

MAY 10 197,

MICHAEL RODAK, JR,

—

InN THE

Supreme Court of the United States

OCTOBER TERM, 1972

No VPel1S15

FARRELL LINES INCORPORATED,

Petitioner,

against

WILLIAM RIVERA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT ON BEHALF OF FARRELL

LINES INCORPORATED

Rosert A. Linty

Counsel for the Petitioner

17 Battery Place

New York, New York 10004

Rosert A. Linty

and

Steven L. Barkan

On the Petition

TABLE OF CONTENTS

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Questions Presented ......2...ccccvccssccscecscess

Constitutional Provision Involved ................

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Reasons for Granting the Writ ....................

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APPENDIX :

Opinion of United States Court of Appeals ....

Decision of United States District Judge,

SE EE ca uukwauelcressnaceboen es

Judgment of the United States District Court ..

TABLE OF AUTHORITIES

Cases:

Atlantic and Gulf Stevedore, Inc. v. Ellerman Lines,

Ltd., 369 U.S. 355, 7 L. Ed. 2d 798, 82 8. Ct. 780 ..

Dennis v. Denver Rio Grande Western Railroad Co.,

375 U.S. 208, 11 L.Ed. 2d 256, 84S. Ct. 291 ......

Fleming v. American Export Isbrandtsen Lines, Inc.,

Cae ©. Oe EP Ce Cae. TIE) wo ccc vccccs

Pe WwW bd

15

16

aS _

li TABLE OF CONTENTS

PAGE

Lavender v. Kurn, 327 U.S. 645, 90 L.Ed. 916, 66 S. Ct.

SP cei Sp Rb vaciesaennskeasseueaeaiasekisas ue 4

McBride v. Loffund Brothers Co., 422 F.2d 363 (5th

WG: GU Fhe he see vascco ce nduiea ola ees 4

Other Authority:

Constitution of the United States, Amendment VII... 9

In THE

Supreme Court of the United States

OCTOBER TERM, 1972

No.

+

vw

FarreELL Lines INCORPORATED,

Petitioner,

against

Wriuiam Rivera,

Respondent.

2

-

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT ON BEHALF OF FARRELL

LINES INCORPORATED

Petitioner, Farrell Lines Incorporated, respectfully re-

quests that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the Second

Cireuit, entered in this proceeding on February 15, 1973,

reversing the judgment of the United States District Court

for the Southern District of New York.

Opinions Below

The judgment of the United States District Court, South-

em District of New York, was entered on January 13,

1972 and the memorandum decision of United States Dis-

triet Judge, Harold R. Tyler, which was duly made on Jan-

uary 11, 1972 denying respondent’s motion for a new trial,

gia wees

2

are printed in the appendix hereto, infra pages 15 and 16,

respectively. The opinion of the United States Circuit

Court of Appeals is printed in the appendix hereto, infra

pages 7-14.

Jurisdiction

The judgment of the United States Court of Appeals

for the Second Circuit was entered on February 15, 1973,

This petition for certiorari has been served and filed

within 90 days of that date. The court’s jurisdiction is jn.

voked under 28 U.S.C. Section 1254 (1) and Rule 19 (1b)

of the Rules of this Court.

Questions Presented

1, Did the United States Court of Appeals for the See.

ond Circuit effectively deny petitioner its right to a trial

by jury?

2. Did the United States Court of Appeals for the

Second Circuit, by reversing the jury’s determination

and the decision of the trial judge, substitute its findings

of facts for that of the jury?

Constitutional Provision Involved

The Constitution of the United States, Amendment VII

provides:

“In suits at common law, where the value in contro.

versy shall exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact tried by a jury,

shall be otherwise reexamined in any court of the

United States, than according to the rules of the com-

mon law.”

Statement of the Case

The respondent in this case was a merchant seaman em-

ployed by the petitioner as a messman aboard the re-

spondent’s vessel, SS Arrican Sun. During the course

of his employment aboard said vessel, respondent sus-

tained personal injuries when he slipped and fell. He

claims that his accident occurred due to the presence of

water on the deck’s surface of the ship’s pantry. He al-

leged that water backed out of the drains in the deck caus-

ing the area to become slippery.

At the end of the trial, counsel for the respondent moved

for a directed verdict on the issue of contributory negli-

gence, arguing that this defense should be dismissed be-

cause of a failure of proof. That motion was denied.

The Trial Judge charged the jury and directed them to

return a general verdict. He submitted the following four

interrogatories for the jury to answer:

“1. Was there an unseaworthy condition in the crew

pantry on the date of the alleged accident?

2. Was the defendant negligent?

3. If your answer to one or two above, or both, is

yes, did such unseaworthy condition and/or negligence

play a part in bringing about the injury of which plain-

tiff here complains?

4. Was plaintiff guilty of contributory negligence

at the time in question?”’

A general verdict was returned in favor of the plaintiff

in the amount of $15,000. All of the interrogatories were

answered by the jury in the affirmative.

Respondent’s counsel was permitted to, and did, make

post-trial motions relating to the verdict as provided for

by the Federal Rules of Civil Procedures. After hearing

4

arguments on the motions, the Trial Judge filed a memoran.

dum decision denying the plaintiff’s motion for new trial,

The $15,000 judgment rendered by the District Court in

respondent’s favor was reversed by the Circuit Court of

Appeals. It being that Court’s view that there was not

enough evidence of contributory negligence in the record

to create a question for the jury.

Reasons for Granting the Writ

1. The evidentiary requirements, upon which the jury

was to base its decision, were set forth by the trial court

in its charge. It has been previously held that where there

is an evidentiary basis for a jury’s verdict, a jury is free

to discard or disbelieve whatever facts are inconsistent with

its conclusion. Dennis v. Denver Rio Grande Western

Railroad Co., 375 U.S. 208, 11 L.Ed. 2d 256, 84 S.Ct.

291; Lavender v. Kurn, 327 US 645, 90 L.Ed. 916, 66 S.Ct.

740. An Appellate Court must not reverse the conclusion

of the jury except in the instance where there is a complete

absence of probative facts to support the conclusion

reached by the jury. It is only when there is that complete

absence of fact, that reversible error appears. Lavender

v. Kurn, supra; Dennis vy. Denver Rio Grande Western Rail-

road Co., supra; Fleming v. American Export Isbrandtsen

Lines, Inc., 451 F.2d 1329 (2nd Cir. 1971).

The same standards of evidence apply to the defendant

in proving the affirmative defense of contributory negli-

gence, as apply to the plaintiff in proving his case. Flem-

ing v. American Export Isbrandtsen Lines, Inc., supra;

McBride v. Loffund Brothers Co., 422 F.2d 363 (5th Cir.

1970).

The Second Circuit, in reviewing the trial transcript, did

not find that there was a complete absence of evidence tend-

ing to prove that respondent was contributorily negligent,

Na adeeeraa™

5

but determined that there was not enough evidence of con-

tributory negligence to create a jury question. In so doing,

it reviewed theories of contributory negligence and consid-

ered that the evidence in the record, which tended to show

negligence on the part of the respondent, was at best in-

complete. The jury, after reviewing the same evidence,

and the Trial Judge, considered that there was sufficient

evidence on which to base a finding that respondent was

contributorily negligent. As Judge Tyler stated in his

memorandum denying plaintiff’s motion for a new trial:

““* * * Tt was not until about 1720 hours that plaintiff

testified that he slipped and fell in the pantry. In the

interim, he made no effort to report the condition or

mop it up. More important, the record fairly indicates

that plaintiff could have gone to the galley to pick up

the order of ice cream rather than proceed into the

pantry which, according to him, he knew to be in a

dangerous condition. On this record, the jury was

entitled to find contributory negligence.’’

The Cireuit Court did not find that there was a complete

absence of evidence. Consequently, the reversal was im-

proper. It deprived petitioner of its right to a jury trial.

2. The Second Cireuit Court of Appeals has, on prior

occasions, held that it would not set aside a jury verdict

if there was a scintilla evidence in the record. Flem ing V.

American Export Isbrandtsen Lines, Inc., supra. The only

difference between that appeal and the present one is that

in that the appellant was a corporate shipowner, whereas

here the appellant was a seaman. In this case, the Circuit

Court, after reviewing the evidence which related to con-

tributory negligence, determined that there should have

been more evidence produced relating to the plaintiff’s own

negligence. It thereby contradicted its own previous rul-

ings that the presence of some evidence on the point was

sufficient to sustain a jury’s verdict.

6

3. Finally, there is the danger that the Circuit Court of

Appeals can adopt the practice of remanding cases for re.

trial until a verdict more acceptable to it is obtained. In

effect, the Circuit Courts will become the substitute trier

of the facts in civil cases, which it is not permitted to do

under the Seventh Amendment. Atlantic and Gulf Steve.

dore, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 7 L.Ed. 2d

798, 82 S.Ct. 780.

CONCLUSION

For the foregoing reasons, it is respectfully sub

mitted that this petition for a writ of certiorari be

granted.

Dated: New York, New York, May 7, 1973.

Respectfully submitted,

Rosert A. Lintty

Counsel for the Petitioner

17 Battery Place

New York, New York 10004

Rosert A. Litity

and

Steven L. Barkan

On the Petition

~]

APPENDIX

Opinion of United States Court of Appeals.

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

~~

No. 346—September Term, 1972.

(Argued January 17,1973 Decided February 15, 1973.)

Docket No. 72-1202

Wim Rivera,

Appellant,

v.

Farrevt Lines, Inc.,

Appellee.

a

-

Before:

Frienpiy, Chief Judge,

Oakes and Timsers, Circuit Judges.

a

v

Appeal from denial of a post-trial motion for a new

trial in the United States District Court for the Southern

District of New York, Harold R. Tyler, Jr., Judge, con-

tending there was insufficient evidence of contributory

negligence to create a jury issue.

Reversed and remanded for a new trial on all issues.

+

?-

Cuar.es Sovet, New York, New York (Abraham

Ek. Freedman, on the brief), for Appellant.

Rosert #. Linty, New York, New York (Lilly,

Sullivan & Purcell and Steven L. Barkan,

of counsel), for Appellee.

+

—

Oakes, Circuit Judge:

This appeal is from an order of the district court deny-

ing appellant’s post-trial motion for a new trial on the

issue of damages or, in the alternative, on all issues. We

agree that it was error for the district court to deny the

motion and we reverse and remand for a new trial on all

issues.

Appellant was employed as a mess man on the SS.

African Sun, an American flag merchant ship owned and

operated by appellee. His duties included serving meals

to the vessel’s crew. This work often took him to the crew

pantry, which was located on the main deck between the

crew mess hall and the ship’s main galley and in which

desserts and other items needed during the course of a

meal were stored.

From at least one previous voyage on the African Sun

appellant was aware of an ever present difficulty working

in the crew pantry. An inch or so of soapy water would

back up from the floor drains, making the floor wet and

slippery. The back-up resulted from water draining from

the officers’ pantry directly overhead and then filling the

drains in the pantry below. The condition had often been

reported to the ship’s officers but had gone uncorrected.

During the evening meal of September 9, 1969, one of

the crew members asked for ice cream for dessert, and

appellant went to the pantry to fetch it. As he returned

to the mess hall he slipped and fell on the wet pantry floor.

The fall resulted in injury to his back.

Appellant brought suit under the Jones Act, 46 U.S.C.

§ 688, to recover for his injury. The defense was that

appellant was injured as a result of his own contributory

negligence, principally consisting of his continued work in

the pantry despite his being well aware of the dangerous

condition of the floor. To appellant’s counsel this defense,

although named contributory negligence, sounded suspi-

ciously like the defense of assumption of risk, long elin-

9

inated from maritime injury iaw by statute... At the con-

dusion of the evidence he therefore moved to strike the

defense but his motion was denied.

The court then submitted the case to the jury which

returned a general verdict and answered four special inter-

rogatories. The interrogatories revealed that the jury

found that an unseaworthy condition existed in the ship’s

pantry; that appellee was negligent on the day of the

accident; that the unseaworthiness and negligence played

a part in bringing about appellant’s injury; and, most im-

portant for present purposes, that appellant was contribu-

torily negligent. Under the applicable comparative negli-

gence doctrine, see 35 Stat. 66 (1908), 45 U.S.C. § 53(1946),

incorporated by reference in 41 Stat. 1007 (1920), 46 U.S.C.

)688 (1946), the finding of contributory negligence went

to reduce appellant’s recovery. Since no specific finding

was made as to the total amount of damages that would

have been awarded appellant absent any contributory neg-

ligence on his part, it is impossible to know how much

appellant’s general verdict of $15,000 was affected by the

finding.

Following the verdict, appellant moved for a new trial

on the ground that there was no evidence of contributory

negligence and the issue was thus improperly submitted to

the jury. This appeal followed the denial of that motion.

The distinction between assumption of risk and contrib-

utory negligence is well established. In common law days

the knowledgeable acceptance by an employee of a dan-

2 35 Stat. 66 (1908), 45 U.S.C. § 54 (1946) (railroad em-

ployees), as amended 53 Stat. 1404 (1939), 45 U.S.C. §5

(1946), made applicable to seamen by 41 Stat. 1007 (1920),

46 U.S.C. § 688 (1946); cf. Socony-Vacuum Oil Co. v.

Smith, 305 U.S. 424 (1939); Carter v. Schooner Pilgrim,

Inc., 238 F.2d 702, 705 (1st Cir. 1956). In The Arizona v.

Anelich, 298 U.S. 110, 122 (1936), the Court pointed out

that assumption of risk had not been a defense in maritime

law even prior to the Jones Act. See G. Gilmore & C. Black,

The Law of Admiralty 299 (1957).

10

gerous condition when and if such acceptance was neces.

sary for the performance of his duties was assumption

of risk. 2 F. Harper & F. James, The Law of Torts § 214

(1956). Contributory negligence, on the other hand, con-

notes some careless act or omission on the part of the

employee over and above that knowledgeable acceptance,

Mumma v. Reading Co., 247 F. Supp. 252, 256-57 (E.D.

Pa. 1965). As the defense of assumption of risk has

been abolished by statute—indeed, “fevery vestige” of the

doctrine ‘‘obliterated,” Tiller v. Atlantic Coast Line Rail.

road Co., 318 U.S. 54, 58 (1943)—the first issue before_us

is whether the charge permitted assumption of risk to go

to the jury in the guise of contributory negligence.

The only theory of contributory negligence the record

reveals that was both argued by appellee’s counsel in sum.

mation® and charged to the jury by the court was the

argument that appellant was careless in moving in and

about the pantry, knowing the sloppy condition of the

floors. This theory, however, was really assumption of

risk masquerading under another name, because it allowed

a finding of contributory negligence on the strength of ap-

pellant’s knowledge that a dangerous condition in his line

of duty existed and his working in that line of duty. Evi-

* _ Although Mumma arose under the Federal Employers Lia-

bility Act, the provisions of the FELA abolishing defenses

formerly available to employers are applicable to seamen

by virtue of the Jones Act. See generally G. Gilmore & C.

Black, supra note 1, at 296-98. Thus, Mumma’s distinction

between contributory negligence and assumption of risk

is applicable to this ease.

* “If he knew the conditions which he claimed two inches of

water, an inch and a half of water on the deck, did he take

extra care?” (Emphasis supplied.)

* The court charged that if the jury accepted the appellee's

contentions the appellant “was guilty of carelessness in per-

sisting in moving in and out of this pantry without more

caution as to where he walked and how he walked and how

he handled himself.”

;

11

dence of an act of negligence other than appellant’s knowl-

edge of the dangerous condition in the pantry was not,

though it should have been, required by the court’s charge 4

in this ease. Dubose v. Matson Navigation Co., 403 F.2d é

875, 878 (9th Cir. 1968); Smith v. United States, 336 F.2d ;

165, 168 (4th Cir. 1964); Mumma v. Reading Co., supra.

See also Restatement (Second) of Torts § 496A, comments

d and e at 562-65 (1965). Thus the verdict must be set

aside since the finding of contributory negligence may well

have been based on this error in the charge.

The court also charged the jury that appellant might

have been contributorily negligent by not having “the com-

mon sense to go and say to somebody in charge, ‘Look, this

has got to be cleaned up; I won’t work there until it is

done.” There have been holdings that failure to warn a

superior officer of a dangerous condition can constitute

contributory negligence on the part of a seaman and dimin-

ish his recovery for injuries suffered. Mroz v. Dravo

Corp., 429 F.2d 1156, 1164 (3rd Cir. 1970) ; DuBose v. Mat-

son Navigation Co., supra, 403 F.2d at 879. But those

cases involved conditions which almost imperceptibly and

over a long period of time led to an illness suffered by a

single seaman. The danger they presented was not imme-

diately obvious to superiors. See Mroz v. Dravo Corp.,

supra, 429 F.2d at 1164 (gas and smoke gradually leading

to breathing defects); DuBose v. Matson Navigation Co.,

supra, 403 F.2d at 876-77 (light bumps on leg from kitchen

workers leading to a cyst). Here, the danger from the wet

and sloppy floor was open and obvious to anyone—includ-

ing officers—who cared to look. Furthermore, unrebutted

evidence presented at trial established that prior to the

accident numerous complaints about the situation in the

pantry had been made to no avail—though not necessarily

by appellant. See Mumma v. Reading Co., supra, 247 F.

Supp. at 254. It cannot be known whether further com-

plaint by appellant would have resulted in correction of

the drain defect in time to avoid the accident or might on

12

the other hand have provoked retributive treatment from

his superior officers. Socony-Vacuum Oil Co. v. Smith, 305

U.S. 424, 430 (1939). If this theory of contributory negli-

gence is submitted to the jury on retrial at all, it should

be done so only with a caveat that the appellant was not

duty bound to perform a futile act.

A third theory of contributory negligence was that ap-

pellant should have mopped up the wet pantry floor before

crossing it. This theory was, however, neither argued by

appellee in summation nor specifically mentioned in the

court’s charge. There was evidence that appellant or an.

other seaman cleaned up the pantry floor. But there was

also unrebutted evidence that even after the pantry floor

was mopped the back-up from the defective drain would

simply recreate slippery ooze. Appellee, who had the bur.

den of establishing appellant's contributory negligence,

made no showing that the floor in fact had not been mopped

by appellant on the day of the accident or that the wet,

sloppy condition would not quickly reoccur after it was

cleaned up. It is our view that there was not enough evi-

dence on this theory of contributory negligence to create

a jury question.

The final theory of contributory negligence urged by

appellee to support the jury’s verdict is that appellant un-

reasonably went to the pantry to get the requested ice

cream when he could have gone around the pantry and to

the galley and thereby avoided the accident. To support

this, there was evidence that ice cream was stored in the

galley as well as the pantry. But this alternate route

theory, while relied on by the trial judge in denying appel-

lant’s post-trial motion, was not argued by the appellee in

summation nor specifically charged to the jury. Had ap-

pellant been given some notice of this theory, he points out,

he would have presented evidence showing that mess men

were not allowed to go into the gallery during meals for

fear that they would interfere with the work of the cooks

and that this is the very reason desserts were stored in the

13

pantry. He might also have shown how difficult this would

have been in connection with the performance of his work

under the circumstances. To allow a finding of contribu-

tory negligence on the basis of evidence which was at best

incomplete and on a theory of which there was no real

notice to the appellant could substantially prejudice him.

On remand, doubtless the evidence of both sides of this

issue will be fully presented.

A question remains, however, whether the new trial

should cover all issues or be limited to the issues of con-

tributory negligence and damages. Fed. R. Civ. P. 59(a)

permits a remand for a partial new trial. Cf. Mason v.

Mathiasen Tanker Industries, Inc., 298 F.2d 28, 32-33 (4th

Cir.), cert. denied, 371 U.S. 828 (1962). Since we are left

in the dark as to what the total award would have been

absent the finding of contributory negligence and the extent

to which that finding affected the verdict, as well as to

whether there will be such a finding on a proper charge,

we remand for a new trial on all issues. Caskey v. Village

of Wayland, 375 F.2d 1004, 1009-10 (2d Cir. 1967); 3 W.

Barron & A. Holtzoff, Federal Practice and Procedure

$1307 at 386 (Wright ed. 1958).°

5 §pecial interrogatories that—properly explained—would

eliminate some of the confusion for a reviewing court or the

trial court determining post-trial motions might include:

1. Do you find that plaintiff has established his claim that

the defendant was negligent and that its negligence was

a proximate cause of plaintiff’s accident? (Answer yes

"St Se ee

2. Do you find that plaintiff has established his claim that

the ship African Sun was in an unseaworthy condition

and this unseaworthiness was a proximate cause of plain-

tiff’s accident? (Answer yes or nO.) ................060

3. If the answer to either Question 1 or 2 above is “yes,”

what is the total amount of damages to plaintiff? Answer

in dollars and cents. $...................

14

Reversed and remanded for a new trial on all issues.

4. If the answer to both Questions 1 and 2 is “no,” your

verdict is for the defendant, and you should put an “X”

here, and you need not answer any further ques-

I ccsemnininnens

5. In the event you have found above that the plaintiff is

entitled to recover, do you find that the defendant has

established its claim that plaintiff was himself negligent

and that negligence was a proximate cause of the accident.

(Answer Ye OF NO.) ......cceeseeeeeee

6. If the answer to Question 5 is “yes,” what percentage

did plaintiff's fault so contribute? ............0 (If the

answer to Question 5 is “no,” do not answer this question.

If you entered a percentage on this question, fill in its

equivalent dollar amount here: §............:0+0 )

7. Subtract the dollar amount stated in Question 6 from

the total amount of damages stated in Question 3 and

enter here the difference, which will be the net amount of

damages you find plaintiff is entitled to recover.

Question 3 total — $.........: eee

—Question 6 amount §...........:00+

Net Recovery OIE

15

Decision of United States District Judge,

Harold R. Tyler.

Re: William ‘Rivera v. Farrell Lines, Inc.,

70 Civ. 1340 HRT

This Jones Act suit for damages was tried to a jury on

November 17, 18 and 19, 1971. At the conclusion of the trial,

plaintiff was awarded a verdict of $15,000.00 Plaintiff

thereafter timely moved for a new trial on essentially two

grounds. First, plaintiff contends that a letter from the

foreman of the jury indicates that there was improper con-

duct by the jury during deliberations. Second, plaintiff

maintains that this court erred by instructing the jury on

the issue of contributory negligence, a findng of which was

ruled by the jury in response to a special question posed by

the court.

At an earlier hearing on the record, this court rejected

the first branch of the motion for the reasons indicated at

that time.

There remains for consideration the second branch of

plaintiff’s motion. After having consulted my trial notes

and reviewed those portions of the testimony which were

available on transcript, I conclude that it was not an error

to submit the question of contributory negligence to the

jury. Both plaintiff and his witness, Mr. Texidor, admitted

that when they went to work at about 1600 hours on the

afternoon of the accident, there was water present on the

floor of the pantry. It was not until about 1720 hours that

plaintiff testified that he slipped and fell in the pantry. In

the interim, he made no effort to report the condition or

mop it up. More important, the record fairly indicates that

plaintiff could have gone to the galley to pick up the order

of ice cream rather than proceed into the pantry which,

according to him, he knew to be in a dangerous condition.

On this record, the jury was entitled to find contributory

negligence.

Motion denied in all respects. It is so ordered.

Dated: January 11, 1972.

H. R. Tyrer, JR.

U.S.D.J.

OE Be

852s FAERIE ERI NE PNM

Toa TM

16

Judgment of the United States District Court.

UNITED STATES DISTRICT COURT,

SouTHERN District or New YorK.

70 Civil 1340 (HRT)

JUDGMENT #72,153

+

i

WituiaM Rivera,

Plaintiff,

—against—

Farrewu Lines Inc.,

Defendant.

The issues in the above entitled action having been

brought on regularly for trial before the Honorable Harold

R. Tyler, Jr., United States District Judge and a jury of six

(6) persons, by stipulation, on November 17, 18 and 19,

1971, and the Court having submitted the attached ques-

tions to the jury, and the jury having answered the said

questions as indicated thereon, and the jury having re-

turned a verdict in favor of the plaintiff, and the jury hav-

ing further found that the plaintiff contributed to the negli-

gence, and the Court thereafter on January 11, 1972, having

handed down its memorandum endorsed denying all mo-

tions, it is,

OrpereD, ApsupGep AND Decreep: That the plaintiff, Wu-

LIAM Rivera, have judgment against the defendant, FarreLy

Layes Inc., in the amount of $15,000.

Dated: New York, N. Y., January 13, 1972.

Joun R. Livinston

Clerk

APPROVED:

H. R. Tyzer, Jr.

U.S.D.J.

(An Extract oF THE MINUTES)

RESPONDENTS.

BRIEF

PATIL LTE NR OSE eS oe

(53807)

iy

New ‘York, New York 10011.

4

.

Counsel jor Respondent

—_— ws S < ees “ ee ee

TABLE OF CONTENTS

Opinions of the Courts Below ..............--.-..

ei aia erika pi nin ven amen

Questions Presented .............-..0-0-2es eee

i EEE ae PE Pre

Counter Statement of the Case .................-.

Reasons Why a Writ Should be Denied—I. The deci-

sion below involves only a proper application of

the well established distinction between contribu-

tory negligence and assumption of risk, and is

supported by numerous decisions of the Supreme

Court, including Schlemmer vs. Buffalo, R.&P.

R. Co., 205 U.S. 1 (1907), Gila Valley, G.EN. R. Co.

vs. Hall, 232 U.S. 94 (1914), Seaboard A.L.R. Co.

vs. Horton, 233 U.S. 492 (1914), The Arizona vs.

Anelich, 298 U.S. 110 (1936), Tiller vs. Atlantic

Coastline Railroad Company, 318 U.S. 54 (1943),

and by numerous decisions of the lower federal

PC COL Gatiibehw aes aebaie dahbennehn ee vies

Ne aulenwinid

Cases Cited

Arizona, The, v. Anelich, 298 U.S. 110 (1936) ......

Carter v. Schooner Pilgrim, Inc. 238 F.2d 702 (1st

ot heen crisecevaeneearedabewwn

Gila Valley, G.&N. R. Co. v. Hall, 232 U.S. 94 (1914)

ql

12

9,11

SP ROS EASE RS Mi net MORMON ATA GAS

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il

PAGE

Mumma v. Redding Company, 247 F. Supp. 252 (E.

MD inna Sou C8 ec aehacenstects.-csude 10, 11

Schlemmer v. Buffalo, R.&D. R. Co. 205 U.S.1 (1907) 911

Seaboard A.L.R. Co v. Horton, 233 U.S. 492 (1914).. 911

Socony-Vaccum Oil Co. v. Smith, 305 U.S. 424 ( 1939) 10

Tiller v. Atlantic Coastline Railroad Company, 318

U.S. 54 (1943)

pik Nhe wom ek Misea lalate oles ona a eee ee )

Statutes Cited

Federal Employers’ Liability Act:

Geotsem 3, 45 UBC. $58 2... 2... cc ccc cc cn cues 3, 10n

Section 4, 45 U.S.C. §54 .................... 4, 10, 10n

Jones Act, 46 U.S.C. § 688 ......0...0...0. 2, 3, 5, 6, 9, 10n

IN THE

Supreme Court of the United States

Octoser Term, 1972

No. 1515

FarRRELL Lines INCORPORATED,

Petitioner,

against

WriuiaM Rivera,

Respondent.

On Petition ror a Writ oF CERTIORARI TO THE UNITED STATES

Court or APPEALS FOR THE SECOND CIRCUIT

Di.

Vw

BRIEF FOR RESPONDENT IN OPPOSITION

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Respondent, William Rivera, respectfully prays that

Petitioner’s application for a Writ of Certiorari to review

the judgment of the United States Court of Appeals for

the Second Circuit, entered on February 15, 1973, be

denied.

Opinions of the Courts Below

The opinion of the District Court for the Southern

District of New York is not yet reported, but is set forth

in the Petition, page 15. The opinion of the Court of

Appeals also is not yet reported, but is set forth in the

Petition, pages 7-14.

Jurisdiction

The jurisdictional requisites are adequately set forth in

the Petition at page 2.

Questions Presented

1. Where, in an action by a merchant seaman under the

general maritime law as modified by the Jones Act, 46

U.S.C. § 688, the evidence showed that the seaman was

injured in the course of his employment aboard a vessel;

that this injury occurred in the vessel’s crew pantry; that

the seaman fell while working in the crew pantry as a result

of the slippery condition of the deck caused by water back.

ing up from drains in the deck; that the condition of the

backing up of the drains had been one of long standing, and

frequently had been reported to the vessel’s officers, without

any corrective action being taken by them; and there being

no evidence that the seaman could have performed his

required duties without going into the crew pantry ; was it

not error for the trial court to permit a finding of con-

tributory negligence based solely on the seaman having

gone into the crew pantry when he had no alternative but

to work there, and was not the Court of Appeals correct in

reversing such finding on the basis that the repeal of the

defense of assumption of risk precluded’a finding of con-

tributory negligence under the circumstances presented?

2. Where the defense of contributory negligence was

improperly submitted to the jury, and where, post trial,

petitioner argued new theories of contributory negligence

which had not been raised at trial and of which respond-

ent had no notice, was not the Court of Appeals correet in

ordering a new trial?

Statutes Involved

The Jones Act, 46 U.S.C. § 688:

‘‘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 eases of personal injury to

railway employees shall apply; and in case of the

death of any seaman as a result of any such per-

sonal injury the personal representative of such sea-

man may maintain an action for damages at law

with the right of trial by jury, and in such action all

statutes of the United States conferring or regulat-

ing the right of action for death in the case of rail-

way employees shall be applicable. Jurisdiction in

such actions shall be under the court of the district

in which the defendant employer resides or in which

his principal office is located. Mar. 4, 1915, ¢. 153,

§ 20, 38 Stat. 1185; June 5, 1920, ¢. 250, § 33, 41 Stat.

1007.”’

Federal Employers’ Liability Act,

Section 3, 45 U.S.C. § 53:

‘‘In all actions on and after April 22, 1908

brought against any such common carrier by rail-

road under or by virtue of any of the provisions of

this chapter to recover damages for personal in-

juries to an employee, or where such injuries have

resulted in his death, the fact that the employee may

have been guilty of contributory negligence shall not

har a recovery, but the damages shall he diminished

hy the jury in proportion to the amount of negli-

gence attributable to such employee: Provided, That

no such employee who may be injured or killed shall

he held to have been guilty of contributory negli-

gence in any case where the violation by sueh eom-

mon carricr of any statute enacted for the safety of

employees contributed to the injury or death of such

employee.’’

4

Section 4, 45 U.S.C. § 54:

“In any action brought against any common car-

rier under or by virtue of any of the provisions of

this chapter to recover damages for injuries to, or

the death of, any of its employees, such employee

shall not be held to have assumed the risks of his

employment in any case where such injury or death

resulted in whole or in part from the negligence of

any of the officers, agents, or employees of such

carrier; and no employee shall be held to have

assumed the risks of his employment in any case

where the violation by such common carrier of any

statute enacted for the safety of employees con-

tributed to the injury or death of such employee.”’

Counter Statement of the Case

The instant action is a suit by an American merchant

seaman under the general maritime law as modified by

the Jones Act, 46 U.S.C. § 688, to recover damages for

personal injuries suffered in the course of his employment

aboard ship.

Respondent, William Rivera, had been employed as a

crew messman aboard the S.S. Arrican Sun, an American

flag merchant vessel owned and operated by petitioner,

Farrell Lines Inc. As a messman, his duties were to serve

meals to the vessel’s crew. These duties were performed

in the crew messhall and the crew pantry (6a).* In the

course of performing his duties in the crew pantry, re-

spondent slipped and fell, severely injuring his back. He

subsequently underwent surgery for removal of a herniated

dise but was left with substantial disability which ultimately

resulted in his being declared permanently not fit for duty.

The cause of respondent’s fall was the slippery condi-

tion of the deck in the crew pantry resulting from water

backing up from a drain located in the deck (12a). This

condition had been of longstanding aboard the vessel and

frequently had been reported to the vessel’s officers. How-

ever, no corrective action had been taken (62a).

Respondent sued on theories of unseaworthiness and

negligence. In the course of the trial petitioner contended

that respondent had been contributorily negligent in con-

tinuing to work in the crew pantry when he knew of the

slippery condition of the deck in that area (19a). Re-

spondent countered that his continuing to work in this area

did not constitute contributory negligence but rather fell

under the doctrine of assumption of risk which was not a

* All page references are to the Joint Appendix on Appeal to

the United States Court of Appeals for the Second Circuit unless

otherwise indicated.

6

defense under the Jones Act or the general maritime law

(64a-65a). Since petitioner presented no other evidence

or theory of contributory negligence during the trial, at

the conclusion of the evidence counsel for respondent moved

to strike the defense of contributory negligence on the

specific ground that what petitioner was claiming to be

contributory negligence was, in reality, assumption of risk

(64a-65a).

The trial judge denied this motion (65a) and submitted

the case to the jury under a charge which permitted the

jury to find contributory negligence and to reduce any

verdict it might award to respondent in accordance with

the comparative negligence doctrine. The jury returned

a general verdict for respondent in the amount of $15,000,

and answered four interrogatories, one of which indicated

that they had, indeed, made a finding of contributory neglli-

gence.’ There was no finding as to respondent’s total dam-

ages absent contributory negligence, nor was there any

finding as to the percentage amount of contributory negli-

gence. As a result, it was impossible to determine the

extent to which the finding of contributory negligence af-

fected the amount of the verdict, although it clearly must

have had a substantial affect as otherwise the award of

$15,000 for permanent disability to a 36 year old man

would have been grossly inadequate.

1 The four interrogatories, each of which were answered “yes”

by the jury, were:

(1) Was there an unseaworthy condition in the crew pantry

on the date of the alleged accident ?

(2) Was the defendant-shipowner negligent on the day of

the accident ?

(3) If your answer to 1 or 2 above, or both, is “ves” did

such unseaworthy condition and/or negligence play a part in

bringing about the injury of which plaintiff here complains?

(4) Was plaintiff guilty of contributory negligence at the

time in question ?

Following the jury’s verdict, respondent filed a post-

trial motion for a new trial, again contending that the

defense of contributory negligence had been improperly

submitted to the jury. The trial judge denied this motion

(3a-4a). In so doing he stated that he was relying on his

trial notes (3a), which were not available to counsel, and

that these trial notes indicated that there had been evi-

dence that respondent could have performed his duties

without going into the crew pantry, and, therefore, the

jury could have based a finding of contributory negligence

on respondent’s decision to go into the crew pantry when

he could have performed his duties without doing so (4a).

Counsel for respondent disagreed with the trial judge’s

statement that there had been evidence that respondent

could have performed his duties without going into the

crew pantry. Accordingly, in connection with the appeal,

ihe entire transcript of the trial testimony was obtained.

Review of the entire transcript disclosed that the trial

judge had been mistaken in his recollection of the testimony

as there was no evidence that respondent could have per-

formed his duties without going into the crew pantry.”

With the benefit of the full transcript before it, and the

proven absence of any testimony that respondent need not

have gone into the crew pantry to perform his duties, the

Court of Appeals for the Second Circuit reversed, holding

that the trial judge had erred in permitting the jury to

make a finding of contributory negligence on evidence

2 Counsel for petitioner has contended that there had been testi-

mony by the vessel's Chief Steward, Mr. Overton, that respondent

could have obtained ice cream from a refrigerator located in the crew

galley and did not have to go to the refrigerator located in the crew

pantry. However, the transcript of Mr. Overton’s testimony disclosed

that there had been no such testimony by him and that there was no

other evidence that respondent could have performed his duties with-

out going into the erew pantry where, adinittedly, the deck frequently

was slippery because of the backing up of the drains.

8

which in reality related only to assumption of risk (Peti.

tion, pages 10-11). The Court of Appeals also reviewed the

evidence in light of other theories of contributory negli-

gence which petitioner argued on appeal, even though these

theories had not been argued at trial. The Court found that

the evidence simply did not sustain any finding of contribu.

tory negligence as distinguished from assumption of risk,

Accordingly, a new trial was directed on all issues (Peti-

tion, pages 13-14).

Reasons Why a Writ Should be Denied

I. The decision below involves only a proper application

of the well established distinction between contributory negli-

gence and assumption of risk, and is supported by numerous

decisions of the Supreme Court, including Schlemmer vs. Buf-

falo, R.&P. R. Co., 205 U.S. 1 (1907), Gila Valley, G.&N. R.

Co. vs. Hall, 232 U.S, 94 (1914), Seaboard A.L.R. Co. vs.

Horton, 233 U.S. 492 (1914), The Arizona vs. Anelich, 298

U.S. 110 (1936), Tiller vs, Atlantic Coastline Railroad Com-

pany, 318 U.S. 54 (1943), and by numerous decisions of the

lower federal courts.

In ordering a new trial, the Court of Appeals merely

found that the trial court had failed to apply the well es-

tablished distinction between contributory negligence and

assumption of risk when it permitted the jury to make a

finding that respondent was contributorily negligent in con-

tinuing to work in a dangerous area, when, in fact, there

was no evidence that respondent had any alternative other

than to work there (Petition, pages 10-11). In actuality,

there was no dispute between the parties as to the appli-

cable legal principles; rather, the trial judge simply had

made a mistake in believing that there had been evidence

that respondent had available to him an alternative means

of performing his work when, in fact, there was no such

evidence. The full trial transcript revealed this mistake

and, accordingly, the Court of Appeals properly directed a

new trial so that the case could be submitted to the jury

under proper instructions of law. Under no circumstances

could this possibly be considered as a case where the peti-

tioner hasbeen denied a right to a jury trial. On the con-

trary, the Court of Appeals merely was performing its

proper supervisory function on appeal of reviewing the

evidence as shown by the trial transcript and correcting a

mistake made by the trial judge in his recollection of that

evidence and his application of settled principles of law

thereto.

eo)

10

At issue was whether there was evidence of contributory

negligence as distinguished from assumption of risk. It js

well established that both under the general maritime law

and the Jones Act, 46 U.S.C. § 688, assumption of risk is

not a defense, e.g., Carter vs. Schooner Pilgrim, Inc., 238

F.2d 702 (1st Cir. 1957), 45 U.S.C. § 54. Indeed, ‘‘every

vestige’’ of the defense of assumption of risk has been

‘‘obliterated’’, Tiller vs. Atlantic Coastline Railroad Com-

pany, 318 U.S. 54, 58 (1943). In addition, the doctrine of

comparative rather than contributory negligence prevails,

e.g., Socony-Vaccum Oil Co. vs. Smith, 305 U.S. 424 (1939),

While both assumption of risk and contributory negli-

gence relate to conduct of a plaintiff, the distinction between

the two concepts is well established. The risks which are

not assumed by a seaman are those which arise out of the

shipowner’s negligence or the unseaworthiness of the vessel,

Since the shipowner is under a non-delegable duty to use

reasonable care and to provide a seaworthy vessel, a claim

that a seaman was contributorily negligent cannot be predi-

cated on the argument that the seaman should not have

worked in an unsafe area, unless the circumstances were

such that the seaman had a reasonable choice to do other-

wise, e.g., Socony-Vacuum Oil Co. vs. Smith, supra. It

follows that a finding of contributory negligence can only

be predicated on some careless act or omission on the part

of the seaman over and above the knowledgeable acceptance

of the unsafe working conditions furnished by the employer.

Mumma vs. Redding Company, 247 F. Supp. 252, 256-257

(E.D. Pa. 1965). Thus, the key to the distinction between

assumption of risk and contributory negligence lies in

whether the seaman had a reasonable alternative course of

* Since the Jones Act incorporates into the maritime law the pro-

visions of the Federal Employers’ Liability Act, decisions under the

FELA are fully applicable to maritime actions.

11

conduct available ot him, short of quitting work or refus-

ing an order. Mumma vs. Redding Company, supra; see

Schlemmer vs. Buffalo, R&P R. Co., 205 U.S. 1 (1907);

Gila Valley, G.N.R. Co. vs. Hall, 232 U.S. 94 (1914); and

Seaboard A.L.R. Co. vs. Horton, 233 U.S. 492 (1914).

At trial the only argument advanced by counsel for peti-

tioner to support the claim that respondent was contribu-

torily negligent was that respondent had been careless in

continuing to work in the crew pantry when he knew of

the slippery condition of the deck. However, as the Court

below correctly found, this argument really was assumption

of risk masquerading under another name (Petition, page

10) because it allowed a finding of contributory negligence

solely on the strength of respondent’s continuing to work

in the crew pantry when he had knowledge that a danger-

ous condition existed there. Since the charge of the trial

court had permitted a finding of contributory negligence

based on this argument, error had been committed which

could be corrected only by the granting of a new trial

(Petition, page 11). To not have ordered a new trial under

these circumstances would be to allow assumption of risk

to creep back into the maritime law as contributory negli-

gence.

In opposing respondent’s post-trial motion and the

appeal, petitioner argued other theories of contributory

negligence in an effort to sustain the verdict. The Court

of Appeals considered these theories and found that the

evidence did not support them. Moreover, as the Court of

Appeals recognized, none of these theories had been argued

to the jury, and, under the circumstances, it would be a

denial of justice to permit a finding of contributory negli-

vence on a theory which was not argued at trial and of

which counsel for respondent had no notice and no oppor-

tunity to rebut.

ee Se ee

12

Petitioner’s claim that the Court below did not find that

there was ‘‘a complete absence’’ of evidence of contributory

negligence and that it had violated the rule that a jury

verdict would not be set aside if there was a ‘‘scintilla”

of evidence to support simply is not correct. The Court

below found only that the defense of contributory negli-

gence had been improperly submitted to the jury in that

the claimed evidence of contributory negligence was, in

reality, assumption of risk, and that the theories of con.

tributory negligence which petitioner argued after the trial

in an effort to sustain a jury verdict which had been ini-

tially obtained on an improper theory of contributory

negligence were not supported by the evidence. This case

presents no unusual or unique principle of law which

warrants review by this Court. Rather, it involves only

a proper exercise of judicial review by a Court of Appeals

in reversing a trial court’s erroneous application of settled

law to a particular set of facts.

Conclusion

For the above foregoing reasons, it is respectfully sub-

mitted that the petition for certiorari should be denied.

Respectfully submitted,

ApraHaM E, FreepMan

CuarLes SoveL

36 Seventh Avenue

New York, New York 10011

Counsel for Respondent

CERTIORARI

DENIED