The opinion of the court was delivered by: Justice Maag
Appeal from the Circuit Court of Madison County.
Honorable P. J. O'Neill, Judge, presiding.
Plaintiff, Scott D. Gibbs, filed a complaint against defendant, Lewis & Clark Marine, Inc., alleging claims for negligence under the Jones Act (46 U.S.C.A. §688 (West 1997)) and for unseaworthiness and maintenance and cure under the general maritime law. Plaintiff did not demand a jury. Defendant filed a timely answer and demanded a jury on all counts of the complaint. In its answer, defendant pleaded an affirmative defense to plaintiff's negligence and unseaworthiness claims, stating, "[I]f Plaintiff Scott G. Gibbs was injured as alleged, said injury was caused in whole or in part by the negligence of Plaintiff Scott G. Gibbs, including, among other respects[,] failing to exercise reasonable care for his own safety under the circumstances."
In June of 1997, plaintiff moved to strike defendant's jury demand, based upon this court's decision in Allen v. Norman Brothers, Inc., 286 Ill. App. 3d 1091, 678 N.E.2d 317 (1997). Defendant opposed the motion to strike, but on July 11, 1997, the trial court granted plaintiff's motion, and the jury demand was stricken.
In October of 1997, defendant filed a motion to reconsider, raising the argument that section 53 of the Federal Employers' Liability Act (FELA) (45 U.S.C.A. §§51-60 (West 1986)), which has been incorporated into the Jones Act (46 U.S.C.A. §688 (West 1997)), requires a jury trial on the issue of plaintiff's comparative fault.
On November 26, 1997, the trial court denied the motion to reconsider, based upon the determination in Allen that federal law does not provide a basis for a Jones Act defendant's claim to a jury trial in state court. Defendant then filed a motion to certify, pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), asking the trial court to certify an immediate appeal of this issue. On December 5, 1997, the trial court entered an order certifying only the issue of whether section 53 of the FELA requires a jury trial on the issue of a Jones Act seaman's comparative fault. As required under Supreme Court Rule 308, the trial court also determined that there is a substantial ground for difference of opinion on this issue and that an immediate appeal would materially advance the ultimate termination of the litigation.
The question certified for appeal is as follows: "Does the language of §53 of the Federal Employers' Liability Act (FELA), 45 U.S.C.A. §§51-60 (1988), which is incorporated into the Jones Act, 46 U.S.C.A. §688, require a jury trial on the issue of a Jones Act seaman's comparative fault?"
We will first review the decision in Allen v. Norman Brothers, Inc., as background for the case at bar. Initially, it is important to note that the Jones Act made the provisions of the FELA applicable to seamen injured in the course of their employment. 45 U.S.C.A. §§51-60 (West 1986). "The Jones Act adopts the entire judicially developed doctrine of liability of the FELA." Allen v. Norman Brothers, Inc., 286 Ill. App. 3d 1091, 1094, 678 N.E.2d 317, 318 (1997). State and federal courts have concurrent jurisdiction over Jones Act claims. Allen, 286 Ill. App. 3d at 1094, 678 N.E.2d at 318; 45 U.S.C.A. §56 (West 1986). But there are real and substantive differences between a pure FELA claim and a Jones Act claim. Among these substantive differences are the provisions concerning jury trials.
The Jones Act has repeatedly been construed by federal courts to allow only the plaintiff the right to elect a trial by jury. Allen, 286 Ill. App. 3d at 1094, 678 N.E.2d at 319; 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). It is clear that the Jones Act does not confer on a defendant the right to a trial by jury. Allen, 286 Ill. App. 3d at 1094, 678 N.E.2d at 320.
Defendant acknowledges that this court, in Allen, determined that neither the Illinois Constitution nor federal constitutional or statutory law provides a basis for a Jones Act defendant's claim to a jury trial in state court. It states that this determination was based upon an interpretation, by this court and federal courts, of the following language contained within the Jones Act:
"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 ***." (Emphasis added.) 46 U.S.C.A. §688 (West 1997).
The language in section 688 has been repeatedly interpreted to provide only the plaintiff with a basis upon which to claim the right to a jury. See Allen, 286 Ill. App. 3d at 1094, 678 N.E.2d at 320 (and authorities cited therein). In the Allen decision, the court determined that a defendant does have a right to a 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. The Allen court stated that 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. The seventh amendment does not apply to suits brought in state court, and the Jones Act itself confers on defendant no right to a jury trial. Allen, 286 Ill. App. 3d at 1094, 678 N.E.2d at 320.
In Allen, the defendant claimed that the Illinois Constitution, which provides that "[t]he right of trial by jury as heretofore enjoyed shall remain inviolate" (Ill. Const. 1870, art. II, §5; Ill. Const. 1970, art. I, §13), guaranteed it a right to a trial by jury even in a Jones Act case, if brought in this state. However, the Illinois Supreme Court has noted that our constitution does not guarantee the right to a jury trial nonexistent at common law, even if such action is legal in nature. Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 72, 643 N.E.2d 734, 753 (1994) (court determined that action pursuant to Consumer Fraud Act is a statutory right created by the legislature, and as such, the constitution does not confer the right to a jury trial). The Martin court pointed out that the constitutional provision was not intended to guarantee a trial by jury ...