COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70175 JOEL E. MARKLE, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION CEMENT TRANSIT COMPANY, INC., : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 18, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 272534 JUDGMENT : AFFIRMED IN PART, REVERSED : AND REMANDED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Judith A. Schornack-Smith JAQUES ADMIRALTY LAW FIRM, P.C. 1370 Penobscot Building Detroit, Michigan 48226 Creighton E. Miller MILLER, STILLMAN & BARTEL 1610 Euclid Avenue Cleveland, Ohio 44115 For defendant-appellee: Henry E. Billingsley, II Irene C. Keyse-Walker ARTER & HADDEN 1100 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1475 -3- NAHRA, P.J.: Appellant, Joel E. Markle ("Markle"), appeals the grant of summary judgment to the appellee, Cement Transit Company, Inc., ("CTC"). For the following reasons, we reverse the grant of summary judgment in part and remand for further proceedings. This case arises out of two separate and distinct events. The first incident allegedly occurred on July 9, 1991, when Markle served as second cook on CTC's vessel, the Medusa Challenger. Markle alleges that on that day, while he worked below deck in the ship's galley, the Medusa Challenger allided with the dock in Charlevoix, Michigan. According to Markle, he overcompensated for the sudden movement of the vessel and struck a work bench causing injury to his head, back and shoulders. Appellee denied that the allision occurred. The second incident occurred on March 21, 1993. On that day, the Medusa Challenger was docked and being prepared for the upcoming sailing season. This preparation included loading boxes of groceries onto the ship for storage. Although the ship was equipped with a hoist suitable for lifting groceries aboard, the hoist was inoperable. As a result, CTC personnel ordered Markle to manually carry groceries aboard the ship. In order to board the vessel, appellant and others carried the boxes of groceries up a gangplank and through a small gangway which led to the engine room. Apparently, the gangway had a low clearance which required a person of sufficient size to crouch in order to pass through it. While Markle carried a box along this route, he crouched to pass through -4- the gangway and injured his back. Markle brought suit against CTC under general principles of maritime tort law and also under 46 U.S.C.App. Sec. 688 (the "Jones Act"). His Complaint recited one cause of action for each of the two alleged incidents. Following discovery and upon defendant's motion, the trial court granted summary judgment on both counts. Appellant filed a Civ.R. 60(B) motion for postjudgment relief; the trial court denied the motion. Markle appeals and asserts three assignments of error. I. Appellant's first assignment of error states: The Trial Court Committed Prejudicial Error In Granting Defendant's Motion For Summary Judgment. This court reviews de novo a trial court's grant of summary judgment. Palmieri v. Deaconess Hospital (June 13, 1996), Cuyahoga App. No. 70067, unreported. Civ.R. 56(C) provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remains to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. [Citations omitted.] LaCava v. Walton (June 13, 1996), Cuyahoga App. No. 69190, unreported. The movant must demonstrate that no genuine issue of material fact remains requiring trial. Palmieri, supra. A factual dispute is "material" if it can affect the outcome of the trial. -5- Needham v. Provident Bank (April 25, 1996), Cuyahoga App. No. 68630, citing, Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248. A factual dispute is "genuine" where reasonable minds could return a verdict in favor of the nonmoving party. Id. Upon motion for summary judgment, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095. "[A] nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial." Palmieri, supra, quoting, Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421. Further, to survive summary judgment, a plaintiff must produce more than a scintilla of evidence in support of her position. Redd v. Springfield Twp. School District (1993), 91 Ohio App.3d 88, 92, 631 N.E.2d 1076. Finally, the court must resolve doubts in favor of the nonmoving party. Palmieri, supra. On appeal, Markle argues that his Jones Act claims should have survived appellee's motion for summary judgment. Federal law governs the application of the Jones Act. See Brown v. L.A. Wells Const. Co. (1944), 143 Ohio St. 580, 586, 28 O.O. 486, 56 N.E.2d 451. The Jones Act permits a seaman to recover for the negligence of a vessel's captain or crew. 46 U.S.C.App. Sec. 688(a); McAleer v. Smith (C.A.1, 1995), 57 F.3d 109, 115. In order to maintain an action under the Jones Act, a plaintiff must demonstrate: (1) negligence on the part of his employer, and (2) that the negligence -6- was a cause, however slight, of his injuries. Havens v. F/T Polar Mist, U.S.C.G. (C.A.9, 1993), 996 F.2d 215, 218. A Jones Act plaintiff bears only a "featherweight" burden to establish causation. Gautreaux v. Scurlock Marine, Inc. (C.A.5, 1996), 84 F.3d 776, 782. The Jones Act, with its unusual burdens of proof, has a unique place in our jurisprudence. Congress enacted the Jones Act in a time of narrowly crafted maritime liability which severely limited remedies available to injured seamen. See The Arizona v. Anelich (1936), 298 U.S. 110, 123, 80 L.Ed. 260, 65 S.Ct. 707. The Jones Act broadly expanded benefits to seamen in order to more fully protect them. Id. In order to effectuate this Congressional intent, federal courts have required a very low evidentiary threshold to submit the issue of negligence to a jury. This lower burden of proof was articulated in the Ninth Circuit Court of Appeals' holding in Havens, supra, at 218. The quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence, [citations omitted], and even the slightest negligence is sufficient to sustain a finding of liability. Accord, Gautreaux, supra. With this legal framework established, we turn to appellant's two causes of action. A. The July 9, 1991 Incident In his first count, Markle alleged that he was injured when the Medusa Challenger allided with the dock at Charlevoix, Michigan. Once established, the existence of an allision creates a -7- legal presumption of fault. Folkstone Maritime, Ltd. v. CSX Corp. (C.A.7, 1995), 64 F.3d 1037, 1050; Brunet v. United Gas Pipeline Co. (C.A.5, 1994), 15 F.3d 500, 503. This presumption shifts the burden to the owner or operator of the moving vessel to demonstrate either: 1) that the allision was the fault of the stationary object; 2) that the moving vessel was operated with reasonable care; or, 3) that the allision was unavoidable. Folkstone, supra; Brunet, supra. The parties disagree as to whether appellant adduced sufficient evidence of the allision. In its motion for summary judgment, CTC produced substantial evidence that the claimed allision never occurred. This evidence included affidavits of crew members and officers of the Medusa Challenger. Appellee also attached the ship's log book which did not indicate an allision with the dock. Through this evidence, CTC satisfied its burden under Civ.R. 56 to produce evidentiary materials which demonstrated that no issue of material fact existed regarding the occurrence of the claimed allision. See Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Consequently, Markle had the burden "to set forth specific facts showing that there [was] a genuine issue for trial * * *." Id., at 293. On appeal, CTC argues that Markle failed to produce any evidence demonstrating that the allision occurred. However, we find that Markle adduced enough evidence to survive summary judgment. Markle testified on deposition: Q. As the vessel was coming in, then there was -8- some sort of contact, you're saying, that the vessel made with the dock? A. Yes. Q. And that caused the ship to move? A. Lurch forward, yes. Or caused us to lurch forward. Caused the ship to stop suddenly, which is not a common occurrence on a ship. Markle's testimony about the "sudden stop" during the docking procedure continued. Q. * * * Okay. The vessel, you say, had a sudden movement, which you say consisted of the vessel coming to a sudden stop. A. Yes. This testimony is sufficient to raise a material issue of fact regarding the occurrence of an allision. Markle's testimony as to the "lurch" and "sudden stop" of the ship, coupled with the uncontroverted timing of docking operations permits an inference that the vessel allided with the dock. Thus, his testimony creates circumstantial evidence of the allision. Circumstantial evidence is the proof of facts or circumstances by direct evidence from which a jury may reasonably infer other related or connected facts which naturally and logically follow, according to the common experience of man. State v. Beynum, (May 23, 1996), Cuyahoga App. No. 69206, 3unreported. Circumstantial evidence and direct evidence inherently possess the same probative value ***. Id. Both the dissenting opinion and appellee incorrectly argue that Markle's testimony is speculative and therefore insufficient -9- evidence of the claimed allision. However, there is nothing speculative regarding appellant's depiction of the vessel's lurch and sudden stop. Markle did not guess that the ship lurched or stopped; rather, he affirmatively stated that it did so. It is undisputed that he was on the vessel at the time of the alleged allision. He is therefore competent to testify as to the movements of the vessel. Accordingly, we do not, as suggested by the dissenting opinion, rest our holding on Markle's "deduction" that the vessel struck the dock. Rather, our holding is based upon Markle's testimony regarding the movements of the ship and the undisputed timing of docking operations. Moreover, both the dissent and appellee require an unwarranted burden of proof from the plaintiff at the summary judgment stage; i.e., eyewitness testimony to establish the allision. It is clear, however, that neither Ohio nor federal law require direct evidence to establish a fact. Michalic V. Cleveland Tankers, Inc. (1960), 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20; State v. Jenks (1991), 61 Ohio St.3d 259, 272. Here, plaintiff demonstrated facts which supported the inference of an allision. No further evidence is required. In this case, Markle provided a direct account of the Medusa Challenger lurching and coming to a sudden stop when the ship was docking. From this testimony, a jury could reasonably infer that the ship struck the dock. As a result, we are duty-bound to afford Markle this reasonable inference. Allen v. R.G. Indus. Supply (1993), 66 Ohio St.3d 229, 234 (court must view evidence in the -10- light most favorable to non-movant); Baliko v. Kuschnir (July 25, 1996), Cuyahoga App. No. 69771, unreported (court must draw inferences under light most favorable to non-movant). Whether plaintiff's testimony is sufficient to overcome defendant's contrary evidence is a question for the jury. We sustain appellant's first assignment of error with respect to the July 9, 1991 incident. B. The March 21, 1993 Incident Appellant also alleged that the negligence of CTC's crew or officers caused injury to his back during the 1993 "spring fit out." However, the record evidence does not permit this conclusion. Accordingly, CTC was entitled to judgment as a matter of law and the grant of summary judgment was proper. Under Dresher, supra, to prevail on summary judgment, CTC had to introduce evidence which demonstrated that it did not act negligently. CTC satisfied this burden by submitting the affidavits of several crew members who took part in the spring fit out. Their collective testimony demonstrates that carrying the groceries aboard the vessel through the gangway did not present an unreasonable risk of harm. In response, despite the clear import of Dresher, supra, appellant failed to produce any rebuttle evidence demonstrating negligent conduct on CTC's behalf. Markle's deposition testimony demonstrated only that he did not customarily load groceries on the ship via the gangway because the hoist was usually operable. When the hoist was available, the -11- groceries would be lifted aboard, loaded onto a cart, and taken to the galley for storage. Because the hoist was inoperable, crew members had to carry the stores up the makeshift gangplank and through the gangway. He stated that he had to crouch to board the ship and that in doing so he hurt his back. Nothing in his testimony indicates the presence of an unreasonable risk of harm in any facet of the spring fit out. The mere fact that he was injured does not demonstrate negligence. See, e.g., Nagy v. Wallis (April 27, 1995), Cuyahoga App. No. 66989, unreported (no presumption or inferrence of negligence based solely upon happening of an accident). With similar effect, Markle submitted an affidavit of Charles A. Schacht ("Schacht"). Schacht, who is an engineer, stated in his affidavit: 1) that the gangway required Markle to crouch in order to enter the vessel; 2) that, in his estimation, a functional grocery hoist would have obviated the need to carry supplies aboard the vessel through the gangway; and, 3) the grocery hoist should have been used to place the groceries aboard the vessel. Again, this evidence focuses on the availability of another means of performance and does not address a lack of due care in the chosen means of loading the groceries. Negligence [under the Jones Act] is the failure to exercise reasonable care to provide the plaintiff with a reasonably safe place to work, reasonably safe conditions, tools or equipment, or the failure in any other way to exercise reasonable care under the circumstances. Lombas v. Moran Towing and Transp. Co., Inc. (S.D.N.Y. 1995), 899 -12- F.Supp. 1089, 1094, citing, Michalic, supra. Accord, Merlino v. U.S. Steel Corp. (C.A.6, 1995) 52 F.3d 325, 326. Because Schacht's affidavit does not indicate that carrying the groceries up the gangplank and through the gangway presented an unreasonable risk of injury, it is not evidence of negligence. Indeed, Markle's attempt to demonstrate negligence based on evidence of the deviation from the customary practice of using of the hoist is misplaced. The fact that utilization of the hoist would have perhaps provided an arguably "better" or "safer" means of loading the ship does not demonstrate that the chosen means of loading the ship was unsafe or unreasonable. The plaintiff could have survived summary judgment only if he had satisfied that burden. Ultimately, there is nothing in the record suggesting that it was unreasonable or unsafe to require Markle to manually carry stores aboard the vessel. Unlike the July 9, 1991 incident, there is no basis upon which to infer or presume negligence. Concommitantly, CTC satisfied its burden of production under Dresher, supra, and thus, summary judgment was proper. Appellant's instant assignment of error is overruled with respect to the March 21, 1993 incident. -13- II. Markle's second assignment of error states: The Trial Court committed prejudicial error in failing to grant Plaintiff's Motion For Reconsideration Or Rule 60(B) Relief from its grant of summary judgment. In violation of App.R. 16(A)(7), appellant's brief does not separately argue this assignment of error. Hence, pursuant to App.R. 12(A), we disregard this assignment of error. See, e.g., Nehls v. Quad-K. Advertising, Inc. (July 3, 1995), Cuyahoga App. No. 67358, unreported. III. Appellant's third assignment of error states: The Trial Court Erred In Failing To File Any Opinions Or Other Statement Of Reasons For Its Disposition Of The Case. As we stated in Hinkle v. Norfolk and Western Railway Co. (July 18, 1996), Cuyahoga App. No. 69815, unreported, at 3: [T]his court should make clear * * * that there is no requirement the trial court make findings of fact or conclusions of law when ruling on a motion for summary judgment. Sawchyn v. Westerhaus (1991), 72 Ohio App.3d 25. Appellant's third assignment of error is overruled. The judgment of the trial court is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion. -14- This cause is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. O'DONNELL, J., CONCURS IN PART WITH RESPECT TO PARTS I(B), II AND III AND DISSENTS IN PART JOSEPH J. NAHRA WITH RESPECT TO PART I(A). PRESIDING JUDGE (See separate opinion.) KARPINSKI, J., CONCURS IN PART WITH RESPECT TO PARTS I(A), II AND III AND DISSENTS IN PART WITH RESPECT TO PART I(B). (See separate opinion.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70175 : JOEL E. MARKLE, : : : CONCURRING Plaintiff-Appellant : : AND vs. : : DISSENTING : CEMENT TRANSIT COMPANY, INC., : OPINION : : Defendant-Appellee : : DATE: SEPTEMBER 18, 1997 O'DONNELL, J., CONCURRING AND DISSENTING: I respectfully dissent from the conclusions reached by the majority, but only with respect to the first assignment of error. While I recognize and concur in the assessment that the burden of proof required to establish a Jones Act negligence claim is less than that required to establish common law negligence, nonetheless, from a procedural standpoint, the burden of going forward with evidence to oppose a summary judgment motion is unchanged and is controlled in this case by Ohio procedural law. The majority has concluded that Markle's deposition testimony about occurrences of a "lurch" and a "sudden stop" coupled with the docking of the ship, support his own conjecture that the ship in fact hit the dock and permits an inference that a collision -3- actually occurred. However, Civ. R. 56(E) states: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated thereon. The Ohio Supreme Court, in evaluating the burden of the nonmoving party on a summary judgment motion, stated: *** If the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Additionally, our court has held that: To respond properly to a motion for summary judgment, the nonmoving party must set forth specific facts which are based on personal knowledge and would be admissible in evidence. (Citations omitted.) A court may not consider inadmissible statements, such as hearsay or speculation, which are inserted into an opposing affidavit.*** State, ex rel. Martinelli, v. Corrigan (1991), 71 Ohio App.3d 243, 248. Here, to establish its entitlement to summary judgment, Cement Transit Company submitted the affidavit of Abdallah Al- Samawi, the steward of the galley crew aboard the Medusa Challenger on July 9, 1991, when it docked in Charlevoix, Michigan, who stated that he did not see Markle "injure himself" or "bump against any work table" or "report any such incident." He further stated there were no unusual movements of the vessel and that the vessel did not hit the dock. In addition, Captain George Herdiva, who served as Master of the Medusa Challenger in -4- charge of navigating the vessel on July 9, 1991, stated in his affidavit that the Medusa Challenger did not allide with the dock or any other object, that it was a normal and routine docking- in, and that no unusual "navigational phenomenon" or sudden vessel movements occurred. He also stated Markle never informed him of accident or injury on July 9, 1991. T h u s , w h e n considering the evidence presented, it is apparent that Markle's deduction that the ship hit the dock is not based on specific facts but is only his own speculative conclusion, which, on it's face, is beyond his own personal knowledge. Hence, it is not admissible evidence to refute appellee's affidavits and is insufficient to establish a material issue of fact. For these reasons, I dissent from the majority regarding this assignment of error, but, concur regarding assignments two and three. Accordingly, I would affirm the judgment of the trial court in all respects. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70175 : JOEL E. MARKLE, : : : CONCURRING Plaintiff-Appellant : : AND v. : : DISSENTING CEMENT TRANSIT COMPANY, INC., : : OPINION : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 18, 1997 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I concur in the main opinion with the exception of Part IB, from which I respectfully dissent. The split majority opinion in this case results from differing applications of the standard governing summary judgment on federal Jones Act negligence claims. The main opinion correctly states and applies the standard in Part IA, but inconsistently fails to do so in part IB. The other concurring and dissenting opinion alludes fleetingly to, but does not apply, the governing standard to either claim. The claims are for several weeks of wages lost while the plaintiff was off-duty recovering from two back injuries. The -6- circumstances of the injury plaintiff received while he manually loaded heavy boxes on the ship fit a recurring pattern of cases routinely submitted to juries. See Recovery, Under Jones Act or Seaworthiness Doctrine, by Seaman or Maritime Worker Injured in Boarding or Leaving Ship (1992), 108 A.L.R. Fed. 264, superseding 1 (1966), 8 A.L.R.3d 505. Submitting such a case to the jury is consistent with Supreme Court precedent which has flatly declared that "the power of decision in these actions [is] exclusively in the jury in all but infrequent cases." Rogers v. Missouri Pacific Railroad Co. (1957), 352 U.S. 459, 510. Everyone old enough to qualify as a juror has carried boxes and used carts to help when loading groceries and thus can evaluate the reasonableness of the short cuts plaintiff was ordered to take in this case. The main opinion purports to justify taking the case from the jury by making various conclusory statements of law, with little discussion of the specific evidence. As discussed below, however, when denying jury trials in this type of case, an analysis of such evidence is crucial. Facts The basic facts concerning the March 21, 1993, spring "fit out" are simple. As noted in the main opinion, plaintiff 1 See also Liability of Railroad under Federal Employers' Liability Act, for Injury or Death of Employee Resulting from its own Activities in Loading or Unloading Cars (1958), 61 A.L.R.2d 811; Federal Employers' Liability Act: Requiring Employee to Work in Cramped Space, or Cramped or Strained Position, As Negligence (1961), 77 A.L.R.2d 779. -3- testified--without contradiction--that defendant had an established practice of using a hoist and cart to load the ship during a "fit out." (Ante at 11.) The hoist was used to lift the heavy boxes to the desired level of the ship and the cart was thereafter used to transport the boxes of supplies for 27 crew members to the galley for storage. (Depo. at 96-99.) The main opinion overlooks that this hoist and cart procedure constitutes specific, affirmative, and concrete evidence of defendant's own view--prior to this incident--of the appropriate precautions necessary to prevent injuries to employees from moving heavy objects under the precise circumstances of conducting a "fit out." The main opinion also omits significant details concerning the admittedly "makeshift" alternative plaintiff was ordered to use in this case. Specifically, plaintiff was ordered not to use this standard practice and equipment during this fit out--not because the hoist was "inoperable" as the main opinion repeatedly asserts--but because the hoist was full of scrap metal. (Depo. at 96.) Instead, plaintiff was ordered for his employer's convenience to manually carry the heavy boxes--which the main opinion ignores weighed at least eighty pounds--while (1) walking up a narrow gangplank, (2) crouching through a cramped gangway with a low clearance, and (3) climbing vertically up a ladder to the galley to store them. (Depo. at 98.) The main opinion also ignores the central aggravating circumstance: that is, the makeshift gangplank--upon which -4- plaintiff had to balance while carrying these heavy boxes--was placed on or against the gangway through which he had to walk. A gangway on a ship is an already narrow doorway, with a rounded top and bottom, even when passage is not otherwise restricted. The placement of the makeshift gangplank on this occasion, however, further reduced the space available for ingress and egress through the gangway. These acute physical constraints were compounded by time constraints--which the main opinion also ignores--arising from plaintiff's testimony that he had to hurry while completing this obstacle course because he still had to prepare lunch. (Depo. at 101-104.) Plaintiff injured his back while hunched over in this constricted gangway carrying an "especially heavy box" (Depo. at 100), that was "too heavy" for the circumstances: *** I took the box, and I was carrying it up the gangway -- the engine room entrance that was going in there wasn't tall enough to get through standing, you have to crouch to get through it, and as I was crouching, I pulled my back out. (Depo. at 100.) Plaintiff later explained as follows: When I was bending to get through the gangway it was too heavy for me to be carrying and I sprained my back or pulled my back out. (Depo. at 105.) Charles Schacht, Ph.D., P.E., an independent licensed professional engineer, evaluated this makeshift alternative in part as follows: It is my opinion based upon my investigation and the testimony of Mr. Markle, as set forth in my letter of February 27, 1995, (Attached as Exhibit "D") that -5- utilization of a makeshift gangplank contributed to the insufficient space of the doorway through which Mr. Markle was entering while carrying stores of excessive weight. The safe transport of goods to the ship's galley should have been through utilization of the ship's hoist designed for this purpose which I witnessed on the MEDUSA CHALLENGER on September 21, 1995. This method would have prevented the necessity of Mr. Markle bending while walking up a gangplank and crouching through a low threshold doorway while singlehandedly carrying a box of excessive weight. (Emphasis added.) (Affid. at para. 3.) The main opinion contends that summary judgment was warranted in this case because defense employees assert that this "makeshift" alternative was safe. This conclusion ignores (1) defendant's failure to comply with its own established practice, (2) plaintiff's conflicting evidence as well as expert testimony to the contrary, and (3) the undisputed circumstances of the case. Granting summary judgment in this case, moreover, fails to appreciate the solicitous nature of the Jones Act and invades the 2 Schacht's February 27, 1995, letter stated in part as follows: ***Based on this information the size of the opening or gangway was not designed to allow for this type of activity. The opening was too small to allow the safe carrying of heavy packages such as boxes of canned goods and other heavy packages. Secondly the utilization of the makeshift gangplank contributed to the insufficient space in the opening or gangway. The only means available for safe transport of goods to the ship deck was through the use of the ship hoist. *** -6- province of the jury to resolve conflicts in the evidence. Conflicts in the Evidence The main opinion loosely characterizes the evidence against plaintiff from defendant's employees as follows: "[t]heir collective testimony demonstrates that carrying groceries aboard the vessel through the gangway did not present an unreasonable risk of harm." (Ante at 10.) Defendant's only specific evidence, however, was the conclusory affidavit of the non- degreed ship's engineer that "neither the gangway nor the engine room doorway were defective or unreasonably dangerous in any way." (Laituri Affid. at para. 6.) He and two others also asserted that they and others used the gangway without "difficulty." The statement of the ship's engineer concerning the gangway directly conflicts with the statement of plaintiff's licensed professional engineer that "the size of the opening or gangway was not designed to allow for this type of activity. The opening was too small to allow the safe carrying of heavy packages ***." (Schacht Affid. at para. 3; emphasis added.) Simply stated, one of these statements is true and one is false. The entire purpose of trial is to enable a jury to resolve such conflicts and to evaluate the weight and credibility of such conflicting testimony. The main opinion to the contrary denies plaintiff his -7- 3 right to jury trial and due process of law. The main opinion compounds this error, because defendant did not produce any evidence to specifically address or directly challenge plaintiff's central claim: that is, the combined location of the gangplank and gangway constituted the dangerous condition for carrying heavy boxes because the gangplank 4 obstructed the already narrow gangway. Plaintiff's engineer specifically testified that "utilization of the makeshift gangplank contributed to the insufficient space" in the gangway. Although defendant's employees testified they used this makeshift alternative without difficulty, none of them carried the 3 In response to a motion for summary judgment, courts should review evidence not to decide such issues of fact, but to determine whether issues of fact exist. This principle is sharply illustrated in, ironically, a case defendant cited in support of its motion for summary judgment. (Brief at pp. 7- 8.); Arvanitis v. Bassa Transp. Corp. (S.D.N.Y. 1960), 183 F.Supp. 741. The judge in Arvanitis found no negligence as a matter of fact where the employee injured his back while carrying an empty 8- to 10-pound olive keg on the kitchen floor of the ship. That Arvanitis proceeded to a bench trial, however, sharply contrasts with the case at bar, where based on more aggravated facts a trial was denied. Accord Villaneuva v. California Tanker Co. (D.N.J. 1960), 187 F.Supp. 591, where a contemporary court declined to enter judgment as a matter of law, even after a jury failed to agree on a verdict at trial, when an employee injured his back carrying a heavy water hose without assistance up a gangplank under time pressure as in this case. 4 Because defendant did not satisfy its burden as the moving party in this case, it is ironic that the main opinion cites Dresher v. Burt (1996), 75 Ohio St.3d 280, which focused on the burden of the party moving for summary judgment. Defendant's motion did not trigger any burden to respond because defendant did not submit evidence to negate all aspects of plaintiff's case. Id. at 287, citing Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144. -8- "especially heavy box" that plaintiff was ordered to carry through this obstacle course. (Depo. at 100.) Moreover, plaintiff specifically testified that he was "bigger" than his boss who ordered him to carry the box through the narrow opening. A difference in their sizes may explain a difference in "difficulty." (Depo. at 100.) The main opinion, as well as the 5 trial court, completely ignores this entire page of testimony. Finally, the statements by plaintiff's engineer that use of the hoist method was "[t]he safe" or "[t]he only means available for safe transport" also appear to conflict with the statement of the ship's engineer quoted above, particularly as broadly characterized in the main opinion. It is incongruous to accept as true the assertion by the ship's engineer to the effect that the makeshift alternative was not "unreasonably dangerous," while ignoring the criticism and contrary statement by plaintiff's expert that "the only safe" way to load the vessel was with the 6 hoist method. 5 Defendant's motion for summary judgment attached only excerpts of plaintiff's deposition testimony. His complete deposition was filed by defendant in the trial court, but remained in a sealed envelope until opened during review of the record on appeal. The trial court's failure to review this material, by itself, constitutes reversible error. Murphy v. City of Reynoldsburg (1992), 65 Ohio St.3d 356, syllabus. 6 Defendant's conclusory assertions concerning the safety of the makeshift alternative are, at a minimum, further contradicted and impeached by the fact that defendant no longer uses the challenged procedure to "fit out" the ship. (Depo. at 117.); Worrell v. Norfolk & Western Railway Co. (1994), 94 Ohio App.3d 133. Thus not only did defendant fail to satisfy its -9- I am unable to reconcile the main opinion with the established summary judgment practice, which the main opinion states, that all doubts and reasonable inferences from the evidence be resolved in favor of, and not against, the non-moving party. (Ante at 5); Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 152 (citing, inter alia, United States v. Diebold (1962), 369 U.S. 654). After construing all the evidence in the light most favorable to plaintiff in accordance with Civ.R. 56(C), defendant has failed to show (1) there is no genuine issue of material fact, (2) that reasonable minds can come to only one conclusion, and (3) that it is entitled to judgment as a matter of law. Jury Trials in Jones Act Cases I believe further that the main and dissenting opinions do not sufficiently appreciate the unique and solicitous nature of 7 the federal Jones Act. It is well established that the Jones burden of filing a properly supported motion for summary judgment under Dresher, n.4 supra, but the credibility of the conclusory affidavits it did submit is dubious. 7 The Jones Act, 46 U.S.C. 688, provides in pertinent part as follows: 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 actions all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees shall apply ***. The latter clause incorporates, inter alia, the Federal Employer's Liability Act ("FELA"), 45 U.S.C. 1, applicable to railway workers, and the cases under these statutes are cited interchangeably. -10- Act is remedial legislation, which departs from the common law governing ordinary negligence actions, and, therefore, must be construed liberally. Cosmopolitan Shipping Co. v. McAllister (1949), 337 U.S. 783, 789-790. "[I]n Jones Act cases, '[t]he right of the jury to pass upon questions of fault and causation must be liberally viewed.'" Oxley v. City of New York (2nd Cir. 1991), 923 F.2d 22, 25. Trial by jury, rather than on paper by judges, is an integral and substantive component of the remedy in Jones Act cases. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Inc. (1962), 369 U.S. 355, 360. These principles are applicable in both federal and state courts as substantive federal law. Garrett v. Moore-McCormack Co. (1942), 317 U.S. 239, 243-245. As noted in the main opinion in Part I, "[t]he quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence." (Ante at 6.) Courts routinely describe this "very low evidentiary threshold"--as "featherweight"--so that "even the slightest negligence is sufficient to sustain a finding of liability." Id.; accord Bommarito v. Penrod Drilling Corp. (5th Cir. 1991), 929 F.2d 186, 189 (even marginal claims are properly left for jury determination.) A fair and consistent application of these principles dictates reversal of summary judgment on plaintiff's second claim under Part IB for the same reasons that this court reversed judgment against him on his first claim under Part IA. In a case frequently cited precisely for its discussion of -11- this low evidentiary burden, the United States Supreme Court directly admonished this court not to invade the province of the jury and specifically explained the highly restrictive circumstances under which judges may enter judgment as a matter of law in this type of case. Gallick v. Baltimore & Ohio Railroad Co. (1963), 372 U.S. 108 (reversing (1961), 86 Ohio Law Abs. 1.) In the case at bar, the other opinions herein repeat the mistake made by this court in Gallick by failing to (1) apply these principles, (2) view the evidence in the light most favorable to the non-moving party, and (3) give that party the benefit of all reasonable inferences that may be drawn from the evidence. There must be a complete absence of probative facts to support a verdict in the injured employee's favor to warrant judgment against him as a matter of law. See Lavender v. Kurn (1946), 327 U.S. 645; Rogers v. Missouri Pacific Railroad Co., supra; and Gautreaux v. Scurlock Marine, Inc. (5th Cir. 1996), 84 F.3d 776, 782, cited as authoritative for a different proposition 8 by the main opinion at p. 6. 8 The United States Supreme Court in Lavender expressly rejected the argument concerning "speculation" and "conjecture" raised by the other concurring and dissenting opinion on the claim in IA, and stated as follows: It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. -12- Negligence is defined generally as the failure to exercise the degree of care, whether by act or omission, that an ordinary prudent person would use under the same or similar circumstances. As noted by the main opinion, negligence in Jones Act cases includes the failure (1) to provide a reasonably safe place to work, (2) to provide reasonably safe conditions, tools, or equipment, or, (3) more broadly, to exercise reasonable care under the circumstances. (Ante at 11.) As with all other elements in such cases, the type of conduct that constitutes negligence is construed liberally. Jamison v. Encarnacion (1930), 281 U.S. 635, 638-641. The Supreme Court has specifically noted that "coverage of the statute is defined in broad language, which has been construed more broadly." Atchison, Topeka & Santa Fe Railway Co. v. Buell (1987), 480 U.S. 557, 561-562 (footnote omitted). Consistent with these principles, plaintiff presented evidence to satisfy each and every one of these definitions of negligence. The main opinion does not address much of plaintiff's evidence or distinguish any of the Jones Act cases cited by plaintiff or in the above annotations. Many of these cases were submitted to a jury and also involved back injuries to employees required to lift heavy objects in an unusual and awkward manner. The Federal Court of Appeals for the Seventh Circuit in Id. at 653. See also Gallick, supra, 372 U.S. at 113-116. -13- Harbin v. Burlington Northern Railroad Co. (7th Cir. 1990), 921 F.2d 129, which persuasively rejected most of the main opinion's precise contentions. Harbin involved a more difficult claim of negligence to prove than a back injury from heavy lifting under dangerous conditions: the employee claimed he suffered a heart attack after he was exposed to soot in the air while he was cleaning out a boiler. The employee argued his employer should have provided different equipment, such as a larger face mask and/or a vacuum cleaner rather than a pressure hose to ventilate the boiler room. The trial court held the jury could not evaluate the reasonableness of the employer's conduct in providing its standard equipment, because the employee did not present evidence regarding the degree of risk from the soot encountered in the air on the project. The Seventh Circuit reversed, specifically applying the summary judgment principles of Anderson v. Liberty Lobby (1986), 477 U.S. 242, upon which the main opinion purports to rely in this case. (Ante at 5.) The Supreme Court in Liberty Lobby recognized that the degree of proof governing a summary judgment determination depends on the degree of proof necessary to establish the claim under the substantive law. Id. at 254. Liberty Lobby affirmed summary judgment in a defamation case involving the heightened standard of clear and convincing evidence. Harbin recognized that this doctrine concerning the applicable standard of proof is a two-way street and applied it to the reduced standard of proof governing FELA cases. -14- The Harbin Court specifically held, contrary to the argument in the main opinion, that the jury could evaluate the reasonableness of various alternative means of cleaning the boiler. Harbin reached this result even though (1) the claim arose from a heart attack resulting from poor air quality, a claim significantly more esoteric than a back injury from manually lifting heavy objects, and (2) there was no evidence the employer deviated from its ordinary practice, as in this case. In contrast to the main opinion, the Harbin Court bluntly stated "[t]he lenient standard for avoiding summary judgment under the FELA merely mirrors the pro-plaintiff slant of the substantive law." Id. at 131. The Harbin Court reasoned as follows: A long line of FELA cases reiterate the lesson that the statute vests the jury with broad discretion to engage in common sense inferences regarding the issues of causation and fault. The jury is the tribunal to which is delegated the duty to apply the elusive concepts of reasonable care and cause and effect to the manifold facts and circumstances of each individual case. A jury is as qualified to infer a general risk of harm to employees forced to labor without ventilation in a sooty environment as it is to infer the possibility of injury from a rusty wire left lying about, or a stagnant pool of water, or the lifting of a heavy weight. Thus, in Heater, 497 F.2d at 1247, the court concluded that a jury could reasonably infer risk to employees who were directed to shift heavy weights. *** Although we discern no case presenting identical facts, numerous FELA actions have been submitted to a jury based upon far more tenuous proof--evidence scarcely more substantial than pigeon bone broth. Id. at 131-132 (citations and case quotations omitted.) Supported by numerous United States Supreme Court cases and -15- frequently applied to cases involving injuries from manually lifting heavy objects under unusual circumstances, Harbin's 9 analysis is standard. In fact, Harbin's reliance on Heater v. Chesapeake & Ohio Railway Co. (7th Cir. 1974), 497 F.2d 1243, is particularly notable because plaintiff cited this precise case but the defendant, the trial court, and the main opinion all fail to address it. In Heater, the employee injured his back while he was manually unloading a boxcar of objects that weighed 200 pounds. The Heater court specifically held that it was a jury question whether a railroad was negligent for failing either to use a mechanical crane or to assign additional people. 9 For example, Stone v. New York, Chicago & St. Louis Railroad Co. (1953), 344 U.S. 407, involved a back injury to an employee while removing railroad ties. The Court considered three alternative ways to remove such ties, other than the practice of using two men with tongs that resulted in the employee's injury, stating as follows: We think the case was peculiarly one for the jury. The standard of liability is negligence. The question is what a reasonable and prudent person would have done under the circumstances. The straw boss had additional men to put on the tongs. He also had three alternative methods for removing stubborn ties. This was not the first difficult tie encountered by the section crew in this stretch of track. The likelihood of injury to men pulling or lifting beyond their capacity is obvious. Whether the straw boss in light of the risks should have used another or different method to remove the tie or failing to do so was culpable is the issue. To us it appears to be a debateable issue on which fair- minded men would differ. Id. at 409 (citations omitted). Harbin's reference to the case involving a "stagnant pond" is to the renowned case reversing this court of Gallick v. Baltimore & Ohio Railroad Co, supra at p. 10. -16- Heater concluded that jurors could find the employer should have used a mechanical device--but did not do so because adjusting for the load would have taken more time--despite the fact that employees often manually lifted the objects, unlike the case at bar. Id. at 1246-1247. Although the objects in the case at bar weighed less than in Heater, the circumstances are more aggravated because plaintiff was required to carry them over an extended obstacle course, while crouching in a manner conducive to injury, contrary to defendant's own standard practice, and while under time pressure. Accord n. 3, supra. Deviation from Custom is Evidence of Negligence My dissent from the main opinion challenges not only its account of the facts and its application of summary judgment principles but also its statement of applicable law. The main opinion baldly asserts that "Markle's attempt to demonstrate negligence based on evidence of the deviation from the customary practice of using of [sic] the hoist is misplaced." (Ante at p. 12.) Deviation from ordinary practice, however, constitutes evidence of negligence and is sufficient, with or without other evidence, to submit this case to the jury. In fact, custom is often the most persuasive evidence of the appropriate standard of care because it is objective, practical, specific, derived from actual business experience, and not dependent upon hindsight by partisan witnesses. It is hornbook law that evidence of defendant's established practice, whether denominated as "custom," "routine," or -17- "ordinary" practice, is some evidence of the standard of care. E.g., 3 Harper, James and Gray, The Law of Torts (1986), Section 17.3 at p. 578; Restatement (Second) of Torts, Section 295A (1965). In short, contrary to the majority opinion, custom is some evidence of the standard of care and deviation from that standard is, in turn, some evidence of negligence. It has long been specifically recognized in Jones Act cases, moreover, that evidence of defendant's customary practice, coupled with its deviation from that standard of care, is sufficient evidence to submit the case to the jury. See Custom as to Loading, Unloading or Stowage of Cargo as Standard of Care in Action for Personal Injury or Death of Seaman or Longshoreman (1962), 85 A.L.R.2d 1196. Thus, contrary to the main opinion, "[e]vidence of the usual custom of seamen is competent to show what constitutes a reasonable standard of care." Gaunt v. Alaska S.S. Co. (Wash. 1961), 360 P.2d 354, 356. Moreover, "the failure to comply with customary methods used in performing work is a factor indicating negligence." 85 A.L.R.2d at 1196. This was true under federal admiralty law even before passage of the Jones Act liberalized the standard and proof necessary to establish negligence. See 10 Clowes v. The Frank and Willie (S.D.N.Y. 1891), 45 Fed. 494. 10 Although the main opinion uses the term "customary," it is not clear that the use of a hoist constitutes a "custom" within the shipping industry. It may be. See e.g., Musleh v. American Steamship Co. (6th Cir. 1989), 878 F.2d 382 (affirming award for employee injured during "fit out"). Even if this established practice does not constitute a custom within the -18- Proof of defendant's deviation from custom was sufficient evidence of negligence, particularly when coupled with plaintiff's expert testimony that the standard practice should have been used in this instance, to submit this case to the jury. First, the decision not to follow a custom may, by itself, constitute an act of negligence. Second, the elimination of customary precautions to protect against known risks from a task may constitute some evidence that an alternative method of performing the task without these precautions is more dangerous. Finally, the custom may provide a basis for a safety comparison among alternatives even when the alternative taken is a complete 11 departure from the customary practice. For these reasons, plaintiff's resort to proof concerning defendant's deviation from custom was appropriate evidence of negligence and warranted submitting the case to the jury. industry, however, the same principles apply to a particular employer's routine or ordinary practice. See Texas v. Pacific Railway Co. v. Behmer (1903), 189 U.S. 468, 470 (Holmes, J.); Eggert v. Norfolk & Western Railway Co. (2nd Cir. 1976), 538 F.2d 509, 510; and Restatement (Second) of Torts, Section 295A at comment b. This court previously recognized and correctly applied these principles in a similar case in which an employee injured his back when he was required to lift a heavy tool and use it in an awkward manner in an unusually cramped space. Hicks v. Norfolk & Western Railway Co. (Oct. 28, 1993), Cuyahoga App. Nos. 63448 and 63522, unreported. 11 It is conceivable that complete abandonment or substantial deviation from custom indicates negligence more than a minor deviation. Considerations concerning the degree of the deviation involve the weight of the evidence, however, which a court cannot evaluate on a motion for summary judgment. -19- Other Evidence of Negligence Even if the failure to comply with customary practice were insufficient by itself of the "even slight" evidentiary standard of Jones Act negligence as the main opinion contends, the record contains other evidence that using the admittedly "makeshift" substitute was negligent. The circumstances of this case are remarkable. Merely reciting the evidence belies the contention that "the record evidence does not permit this conclusion." (Ante at 10.) While under significant time pressure, plaintiff was ordered to manually carry boxes weighing at least eighty pounds through an obstacle course, simply because defendant did not want its employees to empty the hoist. Instead of using the virtually riskless hoist and cart procedure, the employees were specifically directed to carry these heavy boxes (1) while crossing a narrow "makeshift" gangplank laid in place but not firmly attached, (2) while crouching through a gangway decreased in size by the plank, and (3) finally while climbing vertically up a ladder to store them. The main opinion ignores existing authority recognizing sufficient evidence of negligence for injuries resulting from short cuts to save time while carrying objects through a ship gangway. For example, Diebold v. Moore McCormack Bulk Transport Lines, Inc. (2nd. Cir. 1986), 805 F.2d 55, held in this context as follows: It is undisputed that a seaman may recover for -20- injuries caused by his employer's requirement that he do his job in a dangerous manner when other safe methods are readily available ***. Id. at 58. The argument of the main opinion to the contrary imposes an even more onerous standard of proof in this Jones Act case than in ordinary common law negligence cases. Schacht, plaintiff's engineer, evaluated the circumstances of this "fit out." In fact, this case is simple because he provided an affirmative statement of the applicable standard of care. He specifically stated that "[t]he only means available for safe transport" was to use the hoist method. It is undisputed that defendant did not use the hoist method. As a result, this testimony, by itself, provided sufficient evidence of negligence to submit the case to the jury. It is well established--even in ordinary negligence cases--that the plaintiff need not prove precisely what the defendant should have done by presenting affirmative evidence of the standard of care when the circumstances are understandable to a lay jury as in this case. E.g., Bahamas Agr. Industries Ltd. v. Riley Stoker Corp. (6th Cir. 1975), 526 F.2d 1174, 1178. In addition to his statement of the precise standard of care, however, the engineer also criticized the "makeshift" substitute used in this case. He specifically stated that the gangway "was not designed to allow for this type of activity" and was "too small to allow for the safe carrying of heavy packages." He added that the placement of the makeshift gangplank further reduced the space available to pass through the already narrow -21- opening in the gangway. Finally, he specifically stated that the weight of the boxes was "excessive" under the circumstances. Contrary to the main opinion, the jury could conclude from this testimony that this substandard alternative was "negligent": that is, it was not a reasonably safe substitute for defendant's ordinary practice and was not consistent with acceptable practice by a reasonably prudent person under like circumstances. Finally, such extensive expert testimony was not even necessary because a jury can evaluate the circumstances of this case. Nor would it require an expert to conclude that someone would become progressively more fatigued and susceptible to injury as the job progressed. Drawing from common sense and their experience carrying boxes, jurors can evaluate whether preventing the use of a cart, requiring someone to carry eighty- pound boxes of groceries while walking a plank, ducking through an obstructed doorway, and loading them into a vehicle constitutes negligence. The argument of the main opinion that it is impossible to find negligence under these circumstances is 12 unpersuasive. The Supreme Court has specifically held that "[t]he likelihood of injury to men pulling or lifting beyond their 12 Evidence that defendant ordered plaintiff to carry a heavy object through the partially blocked gangway was sufficient by itself to find negligence. The gangway on the ship was designed to have unobstructed clearance for passage even when crew members were not carrying objects. Even if the gangway were adequate for passage without obstruction while carrying such boxes, the reduced clearance created a hazard not presented under ordinary circumstances. -22- capacity is obvious" even without these aggravating factors. Stone v. New York, Chicago & St. Louis Railroad Co, supra n.9, 344 U.S. at 409; accord Heater v. Chesapeake & Ohio Railway Co., supra. An Ohio court has recognized that the existence of negligence is an issue for the jury particularly because of such additional circumstances concerning the location and placement of the gangplank, the size of the boxes, the manner of carrying them, even without the pressing time constraints in this case. See Evans v. Union Depot Co. (1963), 119 Ohio App. 318. Defendant not only had notice, but actually instructed the employees to use this substandard practice. After considering all the evidence in the light most favorable to plaintiff, reasonable jurors could find that, by ordering him to use this more dangerous and unsafe procedure to carry such heavy objects, defendant did not exercise the degree of care which an ordinary prudent person would use under the same or similar circumstances. Specifically, defendant was negligent by failing to provide (1) adequate equipment, (2) sufficient assistance, (3) a safe means of ingress and egress, and (4) a safe place to work, and/or, more generally, by plaintiff's supervisor ordering him to load the boxes in this makeshift manner. It should be noted that in Jones Act cases involving similar circumstances--with no more evidence of negligence than presented in this case--courts typically invoke comparative negligence principles, which also warrant a jury determination rather than summary judgment for the defendant. E.g. Musleh v. American -23- Steamship Co., supra (employee 50% negligent in connection with injury while loading milk during "fit out"); Burden v. Evansville Materials, Inc. (6th Cir. 1988), 840 F.2d 343 (employee 80% negligent in moving objects of 100 pounds); Menard v. Penrod Drilling Co. (5th Cir. 1976), 538 F.2d 1084 (employee 25% negligent in moving objects of 100 to 160 pounds). Conclusion The judicial evaluation of the evidence in the main opinion usurps the historic function of the jury, which has a recognized competence in applying the reasonable man standard to the conduct of the parties consistent with the facts as it finds them, particularly in Jones Act cases. I am unwilling to join in establishing, by fiat as a judicial rule of law, that a shipowner may withhold proper equipment and order an employee to risk injury under the facts of this case. Congress specifically determined, and the United States Supreme Court has repeatedly held, as a matter of federal law that juries are better suited than judges to make this type of judgment based on community standards of reasonable conduct consistent with ordinary experience and facts of life. .