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DREJERWSKI v. C.G. WILLIS

June 25, 1984

Joseph DREJERWSKI, et al.,
v.
C.G. WILLIS, INC.



The opinion of the court was delivered by: KATZ

 KATZ, District Judge.

 This maritime negligence case was tried before a jury in February, 1984. Plaintiff Joseph Drejerwski sued for injuries sustained while working on the deck of a barge owned by defendant. The jury found that defendant was negligent in using a smooth epoxy paint, rather than a non-skid paint, on the hatch cover of its barge and that this negligence was the proximate cause of Mr. Drejerwski's slip and fall and his resulting total and permanent disability. The jury also found that Mr. Drejerwski was not contributorily negligent. The jury awarded Mr. Drejerwski $567,246.72 in damages.

 Defendant has made two post-trial motions which will be addressed separately.

 First, defendant has moved for Judgment N.O.V. or, in the alternative, for a new trial. Defendant claims that on several issues the jury's verdict was unsupported by the evidence or was against the clear weight of the evidence.

 (a) Defendant argues that plaintiffs produced no evidence indicating that the epoxy paint used on the hatch cover had a "latent characteristic" that was "activated" when wet and that made the surface unusually slippery. This contention is irrelevant because plaintiffs were not proceeding on such a theory. Instead, plaintiff contended and proved that defendant should have known that the epoxy paint would be dangerously slippery in inclement weather, and should have chosen a non-skid paint instead. Such a theory of negligence has nothing to do with "latent characteristics" that are "activated" by water.

 (b) Defendant also argues that it could not have had constructive knowledge that the epoxy paint was dangerous because it had used the paint for years and never had any safety problems; the fact that it used non-skid paint on other barges does not establish negligence, since the standard of reasonable care does not require defendant to take every possible safety precaution.

 There are several problems with this argument. For one thing, the occurrence of prior accidents was not the basis for charging defendant with constructive knowledge of the fact that epoxy paint is too slippery to be used safely on a surface where people will be working in inclement weather. Plaintiffs produced expert testimony to the effect that a reasonable barge owner would have used a paint with some abrasiveness on this kind of surface. This was evidence from which a jury could conclude that defendant should have known, i.e., had constructive knowledge, that the epoxy paint it used was too dangerously slippery for this type of surface. Defendant argues that plaintiffs' experts were not credible; however, credibility is an issue for the jury to decide.

 Defendant is correct that it was not required to take every possible safety precaution; it was required to do what a reasonable barge owner would do under the circumstances. The fact that it used nonskid paint on other barges does not establish negligence, but neither does it preclude a finding of negligence. Plaintiff did present expert testimony as to what a reasonable barge owner would do; this provided ample support for the jury's finding of negligence.

 Plaintiffs respond that they only needed to prove that the slip and fall was a "substantial factor" in causing Mr. Drejerwski's injuries. Even if the later exertion while shoveling contributed to the injuries, there was sufficient evidence in the record to support the jury's finding that defendant's negligence was a substantial factor in causing Mr. Drejerwski's injuries.

 (d) Defendant goes on to argue that the jury's finding that there was no contributory negligence was contrary to the weight of the evidence. Defendant's argument on this point is based on the court's failure to give certain requested instructions. Even assuming that the defendant is entitled to raise this issue now (defendant took no exception to the charge at the time of trial), defendant's contentions are without merit.

 Defendant maintains that the jury should have been instructed that a deck made slippery by water, snow, or ice is not an unreasonable working condition. Such an instruction would have been confusing at best. It was a factual issue whether the deck was covered with a heavy layer of snow or ice, in which case Mr. Drejerwski might have slipped regardless of the type of paint used, or whether the deck was merely wet, or covered with a light dusting of snow, in which case the slipperiness of the epoxy paint might have been a factor in causing Mr. Drejerwski's fall. The requested instruction implies that Willis would not be liable if the deck was covered by water, snow, or ice, which is not correct. Moreover, the "reasonableness" of the working conditions is different from whether Mr. Drejerwski was exercising reasonable care for his own safety when he walked across the deck, the issue of contributory negligence as to which the Court charged the jury. Plaintiffs produced evidence from Mr. Drejerwski and a co-worker who was present at the time that Mr. Drejerwski was walking cautiously across the hatch cover because he knew it was slippery. Defendant itself states, "the testimony is clear that plaintiff knew the hatch cover was slippery because that is why he was "half-stepping.'" This is ample evidence to support a finding that plaintiff was not contributorily negligent, i.e., that he was exercising reasonable care for his own safety. Thus, the jury's finding of no contributory negligence was not contrary to the weight of the evidence.

 Defendant also argues that the jury's failure to find contributory negligence resulted from the court's failure to give requested instructions to the effect that "Plaintiff is legally charged with knowledge of the fact that water, snow and ice will make working surfaces slippery." This was not an issue in the case, since plaintiffs never argued that Mr. Drejerwski didn't know this fact; furthermore, it certainly does not establish contributory negligence as a matter of law for a stevedore to walk on a wet hatch cover as part of his job. The jury was entitled to find, on the evidence presented in this case, that Mr. Drejerwski was acting ...


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