2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
12-21-2004 

# F a sold v . DE R i ve r B a y Auth
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3624

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no v a . e du
. Re c omme nde d C it a t ion

" F as o ld v . DE R iv e r B a y Auth " (2004). 2004 D e cisio n s . P ape r 52. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2004/52NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 03-3624
APRI L FAS OLD, Appellant

v. DELAWARE R IVER & BAY AUTHO RITY App eal from th e Un ited States District Co urt for the Dis tri ct of New Jersey (D.C. Civi l No. 01-cv- 04541) Distri ct Judge: Honorable Jose ph H. Rodriguez

Argued December 6, 2004 Be for e: R EN DE LL and FIS HE R, Circu it Judges

and YO HN *, Distri ct Judge
. (Fil ed December 21, 2004 )
E. Alf re d Sm it h [ ARGUED] 1333 Race Street , 2nd Floor Philadelphia, PA 19107 Counsel for Appell ant

*Honorable Will iam H. Yohn, Jr. , Senior Distri ct Court J udge for the Eastern Dis tri ct of Pennsyl vania, sitting by designation.2

Mar y E. Ree ve s [ ARGUED] Donna Adelsberger & Associates Six RoyalAvenue P.O. Box 530 Glenside, PA 19038 Counsel for Appell ee
OPINI ON OF THE COURT
RE ND EL L, Circuit

Judge
. April Fasol d appeals t

he District Court ’s grant of summary j udgment to the 

### Delaware Riv er and Bay Author ity (“DRBA”) preclud ing Fasold ’s pursuit of her claim under the Jo nes Act and g eneral maritime law. Because we conclude that Fasol d adduced evidence s uffici ent to e ntitle her to a jurytri al, we will reve rse the judgment of t he Dis trict C our t. I. Bac kground 

### April Fasold supervised th e food serv ice crew on th e F/V TWIN C APES, a passenge r ferry traveling between Lewes, Delaware and Cape May , New Jer sey . Among her responsibili

ties wa s keeping c lean the kitchen a nd galley area. While c leaning t

he walk-in r efriger ator loc ated in t

he ferry ’s galley , Fasold injured her ba ck moving a

keg of beer stored the re. Fasold claims the ref rigerator was “filthy” and that, in order f or her to do her jo b, the keg h ad to be moved so food and debris b ehind it cou ld be picked up.

Fasold fi led an act

ion 

### in the Dis trict

Court alleging negli gence purs uant to the1 

### Also filed were cl aimsfor maintenance and cure, and punitive

damage s, both of which were resolved by the District Co urt. 3 

### Jones Act , 46 U.S.C.S. § 688 et seq. , andunsea worthines s unde

r gene ral mar iti me l aw. 1 

### She claimed that the D RBA had failed to, inter alia , provide a safe pla ce to work; properly s tow the keg; provide the proper equipment to move the keg; and provide a sufficie nt number

of able-bodi ed crew. The DRBA moved for summary judgment, and the District Cou rt granted its motion
. The Distri ct Court ha d juri sdiction over t his action pursua nt to t

he Jones Act, 49 U.S.C. § 688 et seq ., a nd under genera l marit ime law, 28 U.S. C. § 1333; we have app ellate juris dicti on p ursu ant to 28 U .S.C . § 12 91. II. St andard of Review 

### Our standard of review of the entry of summary judgment in f avor of th e DRBA is pl en ar y. See H ines v. CO NR AIL , 926 F.2 d 26 2, 26 7 (3 d C ir. 19 91)
. III. Relevant Statutes and Principles 

### The Jones Act provides for recovery by a se aman or woman for personal injuries suffered in the course of his or her employ ment in an action at l aw; it extends to seam en and women the same ri ghts accorded railway workers under the Federal Employers Liability Act (“FELA”). See American Dredging Co. v. Miller , 510 U.S. 443, 456 (1994). Though a plaintiff alleging claims under the Jones Act m ust prove the traditional elem ents of negligence – dut

y, breach, notice, and causa tion – the s tandard of pr

oof for4



### causation when asserting negligence under the Jones Act is relaxed, som

etimes t ermed “featherweight.” Evans

v. Uni ted Ar

ab Shipp ing Co. S.A.G

. , 4 F.3d 207, 210 (3d C ir. 1993). “Causation is satisfied if ‘t he proofs justify with reas on the conclusion that employer negligence played any part , even the slightest, in producing the injury.’” Wilburn v. Maritrans GP, Inc. , 139 F.3d 350 (3d Cir . 1998) (quoting Rogers v. Misso uri Pacific R.R. Co. , 352 U.S . 500, 50 6 (1957 )). Because, “[i] n a Jones Act c ase, a trial court can d irect a jury verdict against a plaintiff o nly in those extremely rare instances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee,” Southard v. I ndependent Towi

ng Co. , 453 F.2d 1115, 1118 (3d Ci r. 1971) (emphasis in original ) (internal quotation omit ted), this Court has stre ssed that cases involvin g injuries to seamen or women are almost alw ays appropriate for th e jury. “Issue s of neglige

nce in a J ones Act s uit are questionsfor the jury

to deter mine, and the jury play s a preeminent r ole in Jones Act cases. ” Id. (internal quotations omit ted). As to seaworth iness, the own er of a vessel h as an absolute a nd non -delegable d uty to provid e a seaworthy ship. See Mahnich v. Southern S. S. Co. , 321 U.S. 96 (1944) . The Supreme Court has articula ted the standard as “not perfecti on, but reasonable fitness.” Mitchell v. Trawler-Racer , Inc. , 362 U.S . 539, 55 0 (1960 ). A claim of unsea worthiness targ ets a condition – how th at condition came into2 

### Unseawort hy c onditions a

re not limited to phy sical defects ; a me

thod of stowage

or an unfit cre w can give r ise to liability. 5 

### be in g, wh et he r t hr ou gh ne gl ig en t b eh av io r o r o th er wi se , i s i rr el ev an t t o l ia bi li ty. 2 

### “It makesno differenc e to the s hipowner’sliabil ity that he l acked com

plete c ontrol over

the instrum entality causing injury , or that

he had neit

her act ual nor cons tructive notice of the unseaworthy condition.” Edynak v. Atlantic Shipping, Inc. , 562 F.2d 215 (3d Cir . 1977) (cita tions om itted) . In thisway , the doct rine isa speci es of lia

bility without faul

t. Unlike the JonesAct, howeve

r, the doctrine of uns eaworthiness im poses m ore than a “feathe rweight”standar

d of proof of causa

tion. A pla

intiff m ust “show not

only that the act or omissi on played a substa ntial part in bringing about or actually causing the injury to him, but also th at the injury was either a d irect result or a reason ably probable consequen ce of the act o r omission.” 1B-III B enedict on A dmiralty § 28 (2004). As a general rule, contri

butory negligence by

a seaman or woma

n will not defeat one’s right to recovery ; “[c]ontributory negli gence is not an absolute defense under maritim e law, but rather it i s a basis to apportion damage, ” American P resident Lines, Ltd. v. W elch, 377 F.2 d 501, 5 04 (9th C ir. 1967), cert. denied , 389 U.S . 940 (19 68). A grant of

summary judgment is appropriate “ if the pleadin gs, depositio ns,
an sw er s t o i nt er ro ga to ri es , a nd ad mi ss io ns on fi le , t og et he r w it h t he affi da vi ts , i f a ny, show that th ere is no genu ine issue as to any material fact and th at the moving p arty is entitled to judgme

nt as a m atter of law.” Fe d. R. Civ. P. 56(c). I n reviewing the grant

of6



### summary judgment, we must

affirm if the record evide

nce subm itted by the non-m

ovant “is merely colorable or is not sign ificantly probative.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50 , 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

IV. Dis cussion The District Co urt rejected b oth Fasold ’s Jones Act and seaworthiness c laims. Acknowledging the featherweight standard in Jones Act cases, t he District Court nonet hele ss c onclu ded th at t

here was noevide

nce DR BA knew or shou ld hav e known Fasold wo uld inju re herself attempting to lift a heavy object w ithout assistance. B ecause she was not g iven a direct or der to lift the k eg and she f ailed to ask fo r assistance in doing so, the

Distri ct Court de

term ined, the DRBA was entitled to s umma ry judgment on all negligence c laims. Similarly , regarding Fasol d’s al legations of unse aworthines s, the Distri ct Court c oncluded that, in the absence of a di rect or der to move the keg without assistance, Fasold’s 

### injury had resulted from her own n egligent use o f an otherw ise seaworthy vessel. Though the sta ndard of causat ion for cl aims brought

pursuant to the J ones Act di ffe rs fr om t hat

app li cab le to cl ai ms o f un se aworth in es s a ss er te d un der gen er al mar itime principles, Fasold p resented ev idence crea ting a genu ine issue of f act as to the D RB A’s knowledge of the type of pr oblem she encount ered and i ts duty t o her. We conclude that she wa s en titled to h ave a jur y hea r he r clai ms und er b oth theo ries.7

Fasold l ooked brief

ly for a male cr ew member who m ight as sist her in moving t

he keg, b ut to no avail. T here w as testim ony that o ften c rew we re no t alwa ys willing or ab le to help, as theywere busy with thei r own duties . The recor d demonstrated that there ha d been proble ms in the pas t with women having t o lift heavy obj ects, the unsui tabil ity of hand trucks and the si ze of the cr ew being insuffi cient to handle all t

he work aboard the ship. T he ha nd tru ck us ually em ployed to mo ve ke gs an d oth er hea vy objec ts wa s not in its pr ope r loc ation and not ava ilabl e. 

### Such hand trucks, Fasold has alleged, were frequentl y m issing or left as hore. Fas old felt unde r press ure to get

her work done a

nd attem pted to m ove the bee

r keg hers elf in orde

r to car ry out her duti es, which she did not perceive as op tional at a time when cle an up was esse ntial. While a jury might determi ne Fasold’s acti ons contributed to her inj ury and apporti on liabi lit y acc ordingl y, that doe s not forec lose h er claim s. Bas ed on the ev idenc e in the record befo re us, an d the a pplica ble sta nd ar d, s he ha s a dd uc ed en ou gh ev id en ce to en titl e h er to ha ve he r c lai m s h ea rd by a jury. 

### See Southard. , 453 F.2 d at 1118
. V. Conclus ion For the r easons st ated above, we will REVERS E the District Court ’s grant of

su mmar y ju dgm en t t o De fe nda nt -Ap pe ll ee DRBA.