United States District Court, W.D. Pennsylvania
For THOMAS JAMES NEWILL, Plaintiff: Frederick B. Goldsmith, LEAD ATTORNEY, Goldsmith & Ogrodowski, LLC, Pittsburgh, PA; E. Richard Ogrodowski, Goldsmith & Ogrodowski, Pittsburgh, PA.
For CAMPBELL TRANSPORTATION COMPANY, INC., Defendant: Dennis A. Watson, LEAD ATTORNEY, George M. Evan, Ruth M. Gunnell, Grogan Graffam, P.C., Pittsburgh, PA.
Terrence F. McVerry, Senior United States District Judge.
Defendant has requested tat the Court instruct the jury on the primary duty rule. See Def.'s Proposed Jury Instructions at 2, ECF No. 122. Plaintiff, unsurprisingly, believes that Defendant is not entitled to
such an instruction because Defendant did not raise the primary duty rule as a defense earlier in the litigation and also because it is inapplicable to the facts of this case. See Pl.'s Proposed Jury Instructions at 2, ECF No. 121. For the reasons that follow, the Court agrees with Plaintiff. The requested instruction will not be given; nor will the verdict slip include such language.
The primary duty rule is an affirmative defense. See Wilson v. Mar. Overseas Corp., 150 F.3d 1, 10-11 (1st Cir. 1998) (describing the primary duty rule as an affirmative defense that is analytically distinct from contributory negligence). As such, it must be raised in a defendant's answer. See Fed.R.Civ.P. 8(c)(1). This is necessary to " avoid surprise and undue prejudice" as it " provid[es] the plaintiff with notice and the opportunity to demonstrate why the affirmative defense should not succeed." Long v. Wilson, 393 F.3d 390, 397 (3d Cir. 2004) (internal citations and quotations marks omitted). In general, whenever a defendant fails to raise an affirmative defense in its answer, the defense is waived. Elliott & Frantz, Inc. v. Ingersoll-Rand Co., 457 F.3d 312, 321 (3d Cir. 2006) (quoting Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir. 1991)). Waiver might not result, however, if the defendant " 'raised the issue at a pragmatically sufficient time, and the [plaintiff] was not prejudiced in its ability to respond.'" Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1373-74 (3d Cir. 1993) (quoting Charpentier, 937 F.2d at 864). In this case, Defendant did not raise the primary duty rule in either of its answers. At the same time, Plaintiff does not appear to have been prejudiced by this failure. Defendant's position throughout this litigation has been that Plaintiff should have cleared the snow and ice off the deck, himself, and his failure to do so caused his injury. Thus, it was at least foreseeable to Plaintiff that the primary duty rule would become an issue, even though Defendant never couched its defense in those precise terms.
The Court need not decide whether the primary duty rule defense was waived, however. Even if Defendant has not waived this defense, the Court would still be disinclined to give the requested instruction. The primary duty rule was first articulated by Judge Learned Hand in Walker v. Lykes Bros. S.S. Co., 193 F.2d 772, 773 (2d Cir. 1952). In Walker, the court held that where a plaintiff breaches a duty that he owes to his employer, he is prohibited from recovering from his employer. Id. In reaching that decision, the court distinguished between an employee's duty to exercise ordinary prudence for his own protection, which is imposed on everyone by the law, and an employee's affirmative duty to his employer, which is " consciously assumed as a term of his employment." Id. The court held that when the employee breaches the latter duty, recovery is completely barred. Id. As the Second Circuit explained in a later decision, Walker did not turn " upon any question of 'proximate cause,' 'assumption of risk' of 'contributory negligence,' but rather upon the employer's independent right to recover against the employee for the non-performance of a duty resulting in damage to the employer, which in effect offsets the employee's right to recover against the employer for failure to provide a safe place to work." Dixon v. U.S., 219 F.2d 10, 16-17 (2d Cir. 1955).
The Third Circuit Court of Appeals has never adopted the primary duty rule (or
even discussed it in passing). Outside of this circuit, the rule has come under considerable criticism -- even in the Second Circuit, where, just years after Walker, two judges on a three-judge panel wrote that they would have rejected the rule outright and the third judge found it to be inapplicable to the facts of the case. See Dunbar v. Henry DuBois' Sons Co., 275 F.2d 304, 306 (2d Cir. 1960); see also McSpirit v. Great Lakes Int'l, 882 F.Supp. 1430, 1432 (S.D.N.Y. 1995); Juliussen v. Buchanan Marine, L.P., No. CIV.A.08CIV.1463 DCP, 2010 WL 86936, at *12 (S.D.N.Y. Jan. 7, 2010). As one leading commentator has explained, " by barring recovery altogether, the [primary duty rule] is inconsistent with the abolition of assumption of risk and the application of comparative negligence in Jones Act and unseaworthiness cases." 1 Thomas J. Schoenbaum, Admiralty & Mar. Law § 6-24 (5th ed.).
Nevertheless, several courts continue to recognize -- or at least do lip service to -- the rule in some form, though they have considerably narrowed its scope. See Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 907 (9th Cir. 1994) (noting that " [t]he rule is in tension with the more general admiralty principle that contributory negligence [does not] bar a seaman's recovery" so " courts have cabined the [rule's] reach" ). A number of these courts, for example, have determined that the rule applies only if the plaintiff is a ship's captain or an officer. See, e.g., Acosta v. Aleutian Spray Fisheries, Inc., No. C08-1139RSM, 2009 WL 1916070, at *2 (W.D. Wash. July 2, 2009); Long v. U.S., 339 F.Supp.2d 729, 734 (E.D. Va. 2004) (citing Mason v. Lynch Bros. Co., 228 F.2d 709 (4th Cir. 1956)); Cameron v. United States, 135 F.Supp.2d 775, 778 (S.D. Tex. 2001); Creppel v. Am. Tugs, Inc., 668 So.2d 374, 376 (La. Ct.App. 1996); see also 2 Martin Norris & Robert Force, Law of Seamen § 30:43 (5th ed.); Schoenbaum, supra, at § 6-24. This view finds support in Walker, itself, where the plaintiff was a boat's captain, who had broad supervisory responsibilities to ensure the boat's safety. 193 F.2d at 773.
Other courts -- including the First, Fifth, Sixth, Seventh Circuits -- have held that the primary duty rule applies only when the plaintiff's damages are solely caused by a breach of his employment duty; if the defendant shares any fault, recovery is not barred. See, e.g., Wilson, 150 F.3d at 11 (holding that " a ship's officer may not recover against his employer for negligence or unseaworthiness when there is no other cause of the officer's injuries other than the officer's breach of his consciously assumed duty to maintain safe conditions aboard the vessel" ); Gautreaux v. Scurlock Marine, Inc., 84 F.3d 776, 782 (5th Cir. 1996), opinion reinstated in part on reh'g, 107 F.3d 331 (5th Cir. 1997) (explaining that a plaintiff " should be barred from recovery if his negligent conduct alone caused his injury, and his employer was completely free from fault." ); Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 909-10 (6th Cir. 2006) (quoting Wilson and concluding that the " 'rule does not bar recovery where the plaintiff breached his duty but the ship's owner was also independently at fault'" ); Kelley v. Sun Transp. Co., 900 F.2d 1027, 1031 (7th Cir. 1990) (holding that " [i]f [an officer's] negligence is the sole cause of the injury, the employer's non-negligence bars recovery" ). As one district court has astutely observed, whenever the rule is applied in this manner, it effectively
does the same analytic work as the test for negligence. Either stated as a special rule or stated as part of the Jones Act negligence test, at the heart of every action under the Jones Act ...