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07/29/87 James Dale, v. Luhr Brothers

July 29, 1987





511 N.E.2d 933, 158 Ill. App. 3d 402, 110 Ill. Dec. 756 1987.IL.1081

Appeal from the Circuit Court of St. Clair County; the Hon. Robert L. Craig, Judge, presiding.


JUSTICE WELCH delivered the opinion of the court. HARRISON, J., concurs. PRESIDING JUSTICE KARNS, Dissenting.


Plaintiff James Dale commenced this Jones Act (46 U.S.C. sec. 688 (1983)) case in St. Clair County. After a bench trial, the Judge found defendant Luhr Brothers, Inc., liable to plaintiff in the amount of $1,654,704. Defendant appeals. There is no cross-appeal.

Defendant employed plaintiff as a heavy machinery operator. Plaintiff spent about half his employment for defendant on land and the other half on the water. At the time of his injury plaintiff was in his second week as the second-shift dragline operator on the L1000, a 150- to 175-foot-long spud barge engaged in revetment at a construction site on the Illinois bank of the Mississippi River. Since beginning this two-week period plaintiff had no other duties. His work week as dragline operator consisted of six 10-hour days a week. According to the record, the chief difference between a dragline and a crane is that a dragline's bucket is affixed to the boom by cables rather than by a rigid connection. Revetment, or erosion control, in this case consisted of riprapping or paving the riverbank with rock. The L1000 was called a spud barge because of the spuds which held the barge in place on the river bottom. The L1000 was equipped with a winch house and a portable toilet. The remainder of the crew of the L1000 consisted of an oiler responsible for maintenance of the dragline, plus a winchman who controlled the spuds and a laborer who kept the L1000 clean, tied off rock barges brought by a tugboat and "switched out the empties." Plaintiff handled no lines, did not clean or maintain the barge, did not repair leaks or perform any pumping, and did not raise or lower the spuds when the L1000 was moved. When plaintiff worked on the L1000 he ate and slept at home, except for the midshift meal, which he generally ate on the L1000. The dragline was not affixed to the deck of the L1000. It could be moved about on the L1000 or driven off the L1000 and used on the shore. When plaintiff began a shift on the L1000 he usually rode to the L1000 on the tugboat, the MV Al Bob, which had its own crew. Plaintiff wore a radio with which he kept in constant contact with the MV Al Bob. There were two common means of locomotion of the L1000 during a work shift. Usually the MV Al Bob moved the L1000 with no physical assistance from plaintiff, although plaintiff signaled the tug when plaintiff needed the L1000 moved and told the pilot of the MV Al Bob where to move it. According to defendant's witnesses this method of locomotion was used 90% to 95% of the time. On the other occasions, when the MV Al Bob was not available, plaintiff controlled the move by dropping the dragline bucket to the riverbed in a direction determined by whether upstream or downstream movement was desired. According to one of defendant's superintendents this method was generally used for movements of no more than 150 feet. Regardless of which method of travel was used, the winchman raised the spuds according to plaintiff's signals, consisting of numbered horn blasts, and when the L1000 reached the desired position plaintiff signaled the winchman by horn blasts to drop the necessary spuds. According to plaintiff, if the dragline was dragging (cleaning) the bank, the L1000 was moved as often as every 15 minutes and all of the movement, up to "a couple thousand" feet per shift, was accomplished without the aid of the tug. There was also testimony that on occasion dragline operators moved empty rock barges using the dragline bucket.

Plaintiff testified at trial that on July 11, 1983, he was climbing to the dragline's cab to begin his shift when his left foot slipped on the dragline track; he lost his grip on a rope handhold, fell to the deck, and was injured. Apparently the rope was tied to the cab of the dragline by agents or servants of defendants. The manufacturer equipped the cab of the dragline, a Bucyrus-Erie 88B, with a handrail for mounting. Plaintiff's expert witness, Professor Donald Creighton, testified that in his opinion the rope handhold was dangerous because it was made of rope and was not rigid. Professor Creighton, a mechanical engineer, testified he had never seen a crane of this type, never tried mounting the crane using this particular handhold, did not talk to anyone who used it to find out if they thought it was safe, and had never before testified as an expert on the subject of safe access to cranes. Plaintiff testified the rope handle made mounting the dragline easier and he used this method to mount the dragline many times in the past without mishap. Three of defendant's supervisory personnel and seven union-member employees testified at trial on defendant's behalf, as did one expert witness, a marine surveyor and engineer. One supervisor testified the rope handhold was installed in the late 1970s and was still in use, and no accidents had been attributed to it. The other two supervisors testified the handhold was in use 10 years without problem. Each of the union-member employees testified he used the handhold many times and felt it was safe. Defendant's expert testified that in his opinion based on the trial testimony and his observations made while climbing up and down from the cab of the dragline the handhold was safe and complied with OSHA (the Occupational Safety and Health Act of 1970 (29 U.S.C. sec. 651 et seq. (1983))) regulations. Many of the witnesses described or demonstrated the process of using the rope handle to gain access to the cab, and photographs of the handle and its setting were in evidence at trial.

Evidence at trial indicated plaintiff aggravated a prior injury to his back in the fall. After the fall he underwent surgery to fuse two vertebrae in his lower back. The surgery was only partly successful. An orthopedic surgeon testifying in defendant's behalf stated that in his opinion a second surgery had about an 80% chance of success. Another expert medical witness deposed that in his opinion the chance of success was as much as 95% in light of recently developed techniques. This expert was the same surgeon who performed the original surgery. A treating physician deposed was sure plaintiff would be "permanently status quo, pain, cane and unable to work." Plaintiff testified Dr. Vilray Blair at Barnes Hospital told him the prognosis was not good for a second surgery where the first was unsuccessful and that plaintiff might come out worse than he went in. Plaintiff testified he understood there were no guarantees and he did not want to undergo a second surgery under these circumstances.

Defendant argues the trial court erred in concluding plaintiff was a "seaman" (46 U.S.C. sec. 688(a) (1983)) entitled to sue his employer under the Jones Act for negligence. Defendant concedes plaintiff helped move the L1000 but characterizes his help as occasional and comprising a minuscule portion of plaintiff's responsibilities. Dungey v. United States Steel Corp. (1986), 148 Ill. App. 3d 484, 499 N.E.2d 545, the last word by this court on the issue of seaman status, demonstrates the two central problems with applying the Jones Act to the facts of any particular case.

The first problem is stating a test of seaman's status in the absence of any substantial guidance from the Jones Act or from the United States Supreme Court. In Dungey v. United States Steel Corp. this court followed the test set forth by the Seventh Circuit of the Federal Court of Appeals, reasoning that to do otherwise would result in a test being applied to a case filed in an Illinois circuit court which was different from the test applied if the case were filed in an Illinois Federal district court. That test, which we adhere to in the case at bar, is as follows: There is an evidentiary basis for submitting to the trier of fact the question of the injured party's status as a seaman if:

"(1) the person injured had a more or less permanent connection with a vessel in navigation, and (2) the person injured made a significant contribution to the maintenance, operation, or welfare of the transportation function of the vessel." Johnson v. John F. Beasley Construction Co. (7th Cir. 1984), 742 F.2d 1054, 1062-63, cert. denied (1985), 469 U.S. 1211, 84 L. Ed. 2d 328, 105 S. Ct. 1180; Dungey v. United States Steel Corp. (1986), 148 Ill. App. 3d 484, 493, 499 N.E.2d 545, 552-53.

The second problem in determining seaman status, that of applying the test, is the more vexing of the two, as demonstrated by Dungey v. United States Steel Corp., in which this court was unanimous as to the test to be applied but disagreed as to its application. A majority of this court concluded Dungey was not a seaman as a matter of law because Dungey's only duties were the oiling of a crane situated on a barge and repair of the boom of the crane; Dungey "performed no work in connection with the transportation function of the barge." (148 Ill. App. 3d 484, 495, 499 N.E.2d 545, 553.) In contrast, here plaintiff physically assisted with numerous albeit brief physical movements of the L1000 and was responsible for directing the crew of the L1000 and the pilot of the tug when the L1000 was moved even when the movement was accomplished without plaintiff's physical assistance.

In Johnson v. John F. Beasley Construction Co., the Seventh Circuit concluded Johnson, an ironworker, was not a seaman. Johnson was employed by a structural steel contractor to work in the removal and replacement of a span of a railroad bridge over the Illinois River. Plaintiff, a foreman in charge of the crew performing the work, was transported daily by tug to a barge used as a work platform in the river channel. The barge supported a large crane used in the removal and erection of structural steel. The barge had no motive power, but was nonetheless a vessel in navigation; a tug moved it downstream, where construction material was loaded onto it from trucks on shore with the use of a crane. On such occasions Johnson assisted in the loading and handled lines. Johnson v. John F. Beasley Construction Co. is distinguishable from our case, in which plaintiff physically assisted in moving the L1000 on a regular basis and supervised the moving on a continual basis. Other distinguishable cases urged by defendant for factual comparison include McSweeney v. M. J. Rudolph Corp. (E.D.N.Y. 1983), 575 F. Supp. 746 (the plaintiff's deceased was never on the barge when it was moving); Lynn v. Heyl & Patterson, Inc. (W.D. Pa. 1980), 483 F. Supp. 1247 (the plaintiff, an ironworker, was aboard the barge on various occasions but did not operate the crane and had no fixed or usual duties with respect to the barge); Bellomy v. Union Concrete Pipe Co. (S.D. W. Va. 1969), 297 F. Supp. 261 (the crane the plaintiff operated was on the dock); Buna v. Pacific Far East Line, Inc. (N.D. Cal. ...

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