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03/14/97 DAVID L. ALLEN v. NORMAN BROTHERS

March 14, 1997

DAVID L. ALLEN, PLAINTIFF-APPELLANT,
v.
NORMAN BROTHERS, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 93-L-1005. Honorable Phillip J. Kardis, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court. Kuehn, P.j., and Hopkins, J., concur.

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

Plaintiff, David L. Allen, appeals from a judgment entered upon a jury verdict by the circuit court of Madison County in favor of defendant, Norman Brothers, Inc. Plaintiff had filed suit against defendant, seeking recompense and damages for injuries he suffered while employed by defendant as a second mate on a towboat owned, operated and controlled by defendant.

Plaintiff's complaint was addressed to two separate incidents, with three counts relating to each incident. Counts I and IV were brought under a federal statute known as the Jones Act (46 U.S.C. § 688 (1982)) and alleged that plaintiff was injured while performing his duties of employment as a result of defendant's negligence in: failing to provide plaintiff a reasonably safe place in which to work; failing to provide plaintiff with adequate assistance; failing to warn plaintiff of the dangers in plaintiff's assigned work area; failing to supervise plaintiff; failing to inspect the vessel to see that it was not defective or unsafe; and failing to provide plaintiff with adequate equipment to safely perform his work. Counts II and V were brought under the general maritime law of the United States and alleged that defendant's vessel was unseaworthy for the same specific reasons enumerated in counts I and IV. Counts III and VI were also brought under the general maritime law of the United States and sought maintenance and cure for plaintiff's injuries.

Plaintiff did not demand a jury trial. In its answer to the complaint, defendant demanded a jury trial on all counts. Just before trial, plaintiff moved to strike defendant's jury demand for the reason that defendant has no legal right to a jury trial in a Jones Act or maritime case. The motion to strike was denied, and the cause proceeded to trial before a jury.

At the conclusion of the plaintiff's opening statement, a directed verdict was entered in favor of defendant on counts IV and V of the complaint, relating to the second incident and alleging claims under the Jones Act and for unseaworthiness. At the conclusion of the trial, the jury returned a verdict in favor of defendant on counts I and II but awarded plaintiff cure on count III in the amount of $14,500 and awarded plaintiff cure on count VI in the amount of zero.

Plaintiff appeals, arguing that the trial court erred in refusing to grant his motion to strike defendant's jury demand, that the jury's verdict in favor of defendant on counts I and II is against the manifest weight of the evidence, and that the jury's verdict in favor of plaintiff on count III is a compromise on the issues of liability and damages. We need only address the first of these issues because we reverse thereon and remand this cause for a new trial.

Defendant essentially concedes that no federal law, neither the Jones Act nor general maritime law, accords it a right to a trial by jury in state court. Defendant bases its right to a jury trial on the Illinois Constitution, which provides that "the right of trial by jury as heretofore enjoyed shall remain inviolate". Ill. Const. 1870, art. II, § 5; Ill. Const. 1970, art. I, § 13. For reasons which we will explain, we do not agree that the Illinois Constitution guarantees a defendant a right to a jury trial on either the Jones Act claim, a purely statutory proceeding which does not provide for such a right, or on the maritime claims of unseaworthiness and maintenance and cure, which have been traditionally tried to a court sitting without a jury.

The Jones Act, enacted in 1920, provides in pertinent part:

"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 action 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 ***." 46 U.S.C. § 688(a) (1982).

The Jones Act made applicable to seamen injured in the course of their employment the provisions of the Federal Employers' Liability Act (FELA) (45 U.S.C. §§ 51-60 (1988)), which gives to railroad employees a right of recovery for injuries resulting from the negligence of their employer, its agents, or its employees. O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 38, 87 L. Ed. 596, 63 S. Ct. 488, 490 (1943). The Jones Act adopts the entire judicially developed doctrine of liability of the FELA. American Dredging Co. v. Miller, 510 U.S. 443, 127 L. Ed. 2d 285, 298, 114 S. Ct. 981 (1994). State and federal courts have concurrent jurisdiction over Jones Act claims. 45 U.S.C. § 56 (1988).

Prior to the enactment of the Jones Act, men employed upon a ship were without a remedy in damages for negligence beyond their cure and maintenance, unless the injury was a consequence of the unseaworthiness of the ship or a defect in her equipment. Warner v. Goltra, 293 U.S. 155, 157, 79 L. Ed. 254, 55 S. Ct. 46, 48 (1934). The maritime law gave to seamen no right to recover compensatory damages for injuries suffered from negligence. O'Donnell, 318 U.S. at 40, 87 L. Ed. 596, 63 S. Ct. at 491. The law allowed recovery only if the injury resulted from the unseaworthiness of the vessel or her tackle, a matter of strict liability, and permitted recovery for maintenance and cure, ordinarily measured by wages and the cost of reasonable medical care. O'Donnell, 318 U.S. at 40, 87 L. Ed. 596, 63 S. Ct. at 491. However, no right to recover for personal injuries as a result of negligence had existed prior to the enactment of the Jones Act. The Jones Act created in the seaman a new cause of action at law for personal injuries arising by reason of the employer's negligence, a cause of action not previously available to the seaman. Brown v. C.D. Mallory & Co., 122 F.2d 98, 101 (3d Cir. 1941).

The Jones Act has been construed repeatedly by federal courts to allow only the plaintiff the right to elect a trial by jury. Rachal v. Ingram Corp., 795 F.2d 1210, 1213 (5th Cir. 1986); Craig v. Atlantic Richfield Co., 19 F.3d 472, 476 (9th Cir. 1994). In Craig, the court stated: "The plain language of the Jones Act gives a plaintiff the option of maintaining an action at law with the accompanying right to a jury trial. The Act makes no mention of a defendant." Craig, 19 F.3d at 476. Accordingly, the Jones Act confers on a defendant no right to a trial by jury. (As defendant points out, a defendant does have a right to trial by jury in Jones Act cases brought in federal court where federal jurisdiction is based on diversity of citizenship. This right to a jury trial is based on the seventh amendment to the United States Constitution, which provides that in all suits at common law, where the value in controversy exceeds $20, the right of trial by jury shall be preserved. This constitutional provision has been interpreted to extend beyond the common law forms of action recognized at the time the bill of rights was adopted and accordingly applies to even statutory causes of action, such as Jones Act claims where the amount in controversy and diversity requirements are satisfied. See Martin v. Heinold ...


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