UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RONALD HAMPTON WOOD,

Plaintiff-Appellee,

v. No. 99-1282

UNITED STATES OF AMERICA,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

W. Earl Britt, Senior District Judge.

(CA-97-46-7-BR)

Submitted: September 30, 1999

Decided: November 22, 1999

Before WIDENER and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David W. Ogden, Acting Assistant Attorney General, Janice McKenzie Cole, United States Attorney, Peter F. Frost, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.

Daniel L. Brawley, Ryal W. Tayloe, WARD & SMITH, P.A., Wilmington, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The United States of America appeals from the district court's

adverse finding of negligence in this maritime personal injury case,

and the court's $400,000 award to Ronald Hampton Wood for injuries

sustained while performing maintenance work on board the M/V

CAPE LAMBERT, a cargo vessel owned by the United States Maritime Administration. Wood, a member of the maintenance crew, filed

suit under the Jones Act, 46 U.S.C.A. § 688 (West Supp. 1999)

(Appendix), under a negligence theory that included an unseaworthiness claim under general maritime law.1 The district court held a

bench trial and found that the Maintenance Chief Mate, Wood's

supervisor, was negligent, and that Wood was contributorily negligent. We affirm.

The facts leading up to the injury are not in dispute. Wood and his

supervisor, the Maintenance Chief Mate, met at 8:00 a.m. the morning

of the accident to discuss the days' duties. One of those duties was

to move a coil of wire from one deck to another. Wood was an experienced seaman and bosun, well acquainted with the handling of lines

and wires. Wood indicated to the Maintenance Chief Mate that he

needed assistance to perform this task. The Maintenance Chief Mate

instructed Wood to complete his morning rounds, and told him he

would join Wood and assist him in moving the wire coil after completing his rounds. Wood completed his rounds in fifteen minutes and

waited for the Maintenance Chief Mate. When the Maintenance Chief

Mate did not arrive, Wood attempted to contact him via two-way

radio several times,2 and, when he could not contact him, proceeded

to perform the work himself.3 The Maintenance Chief Mate, delayed

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1 The district court did not find that the vessel was unseaworthy.

2 Both men carried two-way radios to communicate with each other

while each was in a different area of the ship.

3 Wood unsuccessfully continued his attempts to contact his supervisor

at various points in the process of moving the wire coil.

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by other necessary work outside the scope of his usual morning

rounds, did not contact Wood to advise him of the delay or provide

him with other instructions. Wood injured his back when the end of

the wire rope became caught and Wood attempted to free the line

while it was under tension. When the Maintenance Chief Mate arrived

on the scene at approximately 9:45 a.m., he assisted Wood in moving

equipment and then told Wood he was ready to help with the wire

coil. Wood informed his supervisor that he had already completed the

job.

The district court found that the Maintenance Chief Mate deviated

from his morning rounds without notifying Wood of his actions, leaving Wood to perform the required task of moving the wire coil alone.

The district court found negligent the failure of the Maintenance

Chief Mate to provide proper supervision and assistance to Wood,

specifically, his failure to advise Wood that he was delayed and either

arrange for other assistance for Wood or assign him to other tasks

which he could safely perform alone pending his arrival. The district

court further determined that Wood was sixty percent negligent in

moving the wire coil himself and in attempting to free the end of a

line under tension.4 The total damage award was $1,000,000.

On appeal, the United States challenges the district court's assignment of liability to the United States, claiming that while the district

court's factual findings were accurate, it applied erroneous legal standards. The United States takes issue with the district court's finding

of a duty on the part of Wood's supervisor to predict when Wood

would take independent dangerous action contrary to his supervisor's

orders. The United States also claims that Wood independently and

mistakenly created a dangerous condition, that he independently

chose to correct his mistake in an unsafe way, and was therefore

solely responsible for his injuries.

To prevail on a Jones Act negligence claim against his employer,

a seaman must establish (1) personal injury in the course of his

employment; (2) negligence by his employer or an officer, agent, or

employee of his employer; and (3) causation to the extent that his

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4 The admiralty doctrine of comparative negligence applies. See Jacob

v. New York, 315 U.S. 752, 755 (1942).

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employer's negligence was the cause "in whole or in part" of his

injury. See Gautreaux v. Scurlock Marine, Inc. , 107 F.3d 331, 335

(5th Cir. 1997) (en banc). Liability exists where employer negligence

played even the slightest role in producing the injury for which damages are sought. See Ferguson v. Moore-McCormack Lines, Inc., 352

U.S. 521, 523 (1957) (quoting Rogers v. Missouri Pac. R.R. Co., 352

U.S. 500, 506 (1957)); Santana v. United States , 572 F.2d 331, 335

(1st Cir. 1977).

Drawing on common law principles to guide in the requirement of

proving negligence, it is well understood that negligence is "conduct

which falls below the standard established by law for the protection

of others against unreasonable risk of harm." Restatement (Second)

of Torts § 282 (1965); see also W. Page Keeton, et al., Prosser and

Keeton on Torts § 31, at 170 (5th ed. 1984) (Lawyer's Edition). The

risk included in this definition is one that is reasonably foreseeable.

See Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 117 (1963);

Brown v. CSX Transp. Inc., 18 F.3d 245, 249 (4th Cir. 1994). In short,

under common law principles of negligence, a plaintiff must establish

the breach of a duty to protect against foreseeable risks of harm.

We review a district court's factual findings, including findings of

negligence, for clear error. See Bonds v. Mortensen & Lange, 717

F.2d 123, 125 (4th Cir. 1983). Questions of law are reviewed de novo.

See Neathery v. M/V Overseas Marilyn, 700 F.2d 140, 143 n.2 (4th

Cir. 1983).

The United States first claims that the district court improperly

assigned fault to it based on a duty of omniscience. It contends that

the district court erroneously required that the Maintenance Chief

Mate read Wood's mind and conclude that he would disobey his order

and perform the task alone.

The Maintenance Chief Mate recognized that moving the wire coil

required more than one person. In response to Wood's stated request,

his supervisor indicated he would assist him, ordering Wood to perform the task after his morning rounds and stating that he would assist

Wood after finishing his morning rounds. Contrary to the United

States' assertion, the district court did not find that there was an order

by the supervisor for Wood to wait for him before moving the wire

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coil. Rather, the district court found that there was an order to move

the coil and an indication of assistance by the supervisor.

The district court essentially concluded that the Maintenance Chief

Mate should have foreseen that Wood might be tempted to perform

the ordered task alone, since no assistance or alternative orders were

provided to him. The district court specifically found that the supervisor's duty to supervise and assist encompassed a duty to inform when

the previously agreed-upon plans had changed, rather than leaving

Wood to perform the task alone. On this record, we find no error in

the district court's conclusion that the Maintenance Chief Mate

breached his duty owed to Wood.5

The second issue on appeal is that Wood's action in moving the

coil by himself was the sole proximate or superceding cause of his

injury. We find no error in the district court's determination that

Wood's injury was caused, in part, by the Maintenance Chief Mate's

failure to assist him with the job or make other arrangements on his

behalf, given that the supervisor ordered him to perform the job, knew

that Wood needed assistance to do so, and deviated from his morning

rounds and agreed-upon plan to assist Wood without notifying Wood

of his actions. See Ferguson, 352 U.S. at 523; Santana, 572 F.2d at

335.6

Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are

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5 While the United States makes much of the fact that the Maintenance

Chief Mate ultimately showed up to assist Wood with the job, claiming

that Wood was impatient, it ignores the unchallenged facts that: (1) the

supervisor's arrival was delayed; (2) he failed either to notify Wood, or

to make himself accessible should Wood need to contact him with difficulties he encountered; and (3) there was a standing order to move the

wire coil after Wood finished his morning rounds.

6 We find that the United States' reliance on Exxon Co., U.S.A. v. Softec, Inc., 517 U.S. 830 (1996), is misplaced because Wood's action in

undertaking to move the wire coil himself was foreseeable when the

Maintenance Chief Mate deviated from the agreed-upon plan to assist

Wood with performing the ordered task without providing him with further instruction.

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adequately presented in the materials before the Court and argument

would not aid the decisional process.

AFFIRMED

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