|
American Trial Lawyers Association
Consumer Lawyers Hawaii
Stanford Law School
American Bar Association
Marquis' Who's Who
in the World,
Who's Who
in America and
Who's Who
in American Law
Sister sites:
Accident Lawyer
Hawaii -
Car Accident
Attorney Hawaii -
Injury Lawyer
Hawaii -
Hawaii Injury
Lawyer Attorney -
Personal Injury
Claims Hawaii -
Hawaii Personal
Injury Lawyer -
Hawaii Brain
Injury Lawyer -
Hawaii Wrongful
Death Lawyer -
Recent Personal Injury and Car Accident News and Cases related to Hawaii
In some jurisdictions, courts require a defense medical examiner to produce tax returns as a prerequisite to allowing the witness to testify against an injured claimant. See, eg, Noffke v. Perez, Sup. Ct. of Alaska No. S-12185, 2008 Westlaw 746972 (Alaska, March 21, 2008). This requirement exists because large amounts of income from insurance companies shown on the doctor's 1099's and tax returns shows a reason for bias. Unfortunately, the Hawaii courts and the LIRAB have consistently failed to provide even this minimal protection against often highly biased defense medical examiners purchased by insurance companies. A change of course is needed.
|
|
|
JONES ACT- TABLE OF CONTENTS
The Jones Act
IV. NEGLIGENCE -> C. Circumstances of Injury -> 1. Assault -> a. In General
282. Generally
It is disposition of assailants, rather than simply severity of act, that is material to issue of unseaworthiness. Harbin v Interlake S.S. Co. (1978, CA6 Ohio) 570 F2d 99, 2 Fed Rules Evid Serv 945, cert den 437 US 905, 57 L Ed 2d 1135, 98 S Ct 3091, 98 S Ct 3092.
There can be no recovery for assault by fellow-servant unless assault was committed in discharge of assailant's duties and in furtherance of work of employer's business. Lambert v Morania Oil Tanker Corp. (1982, CA2 NY) 677 F2d 245.
Requirements for cause of action for sexual harassment under 46 USCS Appx § 688 include tortious physical contact and physical injury. Cash v Tidewater Marine, Inc. (1999, SD Tex) 34 F Supp 2d 448, 79 BNA FEP Cas 201.
283. Self-defense
Seaman cannot recover under 46 USCS Appx § 688 for injuries sustained in alleged assault committed in self-defense. Campbell v Waterman S.S. Corp. (1952, DC Pa) 110 F Supp 146; Watson v Joshua Hendy Corp. (1956, DC NY) 142 F Supp 335, affd (CA2 NY) 245 F2d 463.
284. Outside scope of employment
Assault by ship's officer is outside scope of employment and not in furtherance of employer's business where it is mere private brawl. Yukes v Globe S.S. Corp. (1939, CA6 Ohio) 107 F2d 888.
Seaman is not acting in furtherance of his master's business so as to make shipowner liable under 46 USCS Appx § 688, in assaulting his superior as superior attempts to take control in time of emergency. Brailas v Shepard S.S. Co. (1945, CA2 NY) 152 F2d 849, cert den 327 US 807, 90 L Ed 1032, 66 S Ct 970.
Assault is outside scope of employment and not in furtherance of employer's business where it is committed for purpose of revenge for prior assault; chief officer on ship could not recover damages from owner and operator for personal injuries as result of assault upon him by chief engineer where trial court found that chief engineer was not vicious, pugnacious, or dangerous and that chief engineer's assault was not in course of his employment. Kable v United States (1948, CA2 NY) 169 F2d 90, later app (CA2 NY) 175 F2d 16.
Assault is outside scope of employment and not in furtherance of employer's business where it is for purpose of furthering personal interests of assailant and is motivated by personal gain. Walters v Moore-McCormack Lines, Inc. (1962, CA2 NY) 309 F2d 191, reh den (CA2 NY) 312 F2d 893.
Shipowner was not liable for assault by seaman upon one coming aboard to press and clean clothes for seamen, since transaction of pressing and cleaning did not involve any concern of vessel owner. Price v United States (1925, DC La) 11 F2d 283.
Crew of ship was not acting in course of their employment or in furtherance of their master's business so as to invoke liability under 46 USCS Appx § 688 while they committed assault upon their master, whom they were bound to obey. Birks v United Fruit Co. (1930, DC NY) 48 F2d 656.
Fight in barroom due to apparently unprovoked assault by chief engineer will not constitute liability for shipowner under 46 USCS Appx § 688 where assailant had not been acting within scope of his employment, even though his purpose in coming to plaintiff's table was to speak with seaman whom assailant suspected of pretending illness aboard ship to avoid work. Nowery v Smith (1946, DC Pa) 69 F Supp 755, affd (CA3 Pa) 161 F2d 732.
Killing of seaman by fellow employee as result of personal quarrel between them, where there is no connection between quarrel and employee's work, and deceased and killer had previous to quarrel been close friends, does not result in liability of employer under 46 USCS Appx § 688. Quinn v American Range Lines, Inc. (1942) 344 Pa 85, 23 A2d 487, cert den 316 US 677, 86 L Ed 1750, 62 S Ct 1107.
285. Within scope of employment
Assault by employee's foreman for purpose of hurrying employee in his work, although in excess of authority conferred by employer upon foreman, was committed in course of discharge of foreman's duties and in furtherance of work of employer's business and is cognizable claim under 46 USCS Appx § 688. Jamison v Encarnacion (1930) 281 US 635, 74 L Ed 1082, 50 S Ct 440.
Assault may be considered as having been committed within scope of assailant's employment, and in furtherance of employer's business, where it is for purpose of reprimanding victim for tardiness and compelling him to work. Alpha S.S. Corp. v Cain (1930) 281 US 642, 74 L Ed 1086, 50 S Ct 443.
Assault may be considered as having been committed within scope of assailant's employment, and in furtherance of employer's business, where it is for purpose of waking seaman and sending him out on duty. Nelson v American-West African Line, Inc. (1936, CA2 NY) 86 F2d 730, cert den 300 US 665, 81 L Ed 873, 57 S Ct 509.
No recovery may be had for assault and battery used to prevent or abate trespass, if no more force be used than is reasonably necessary. Escandon v Pan American Foreign Corp. (1937, CA5 Tex) 88 F2d 276, 1937 AMC 743.
Under direct negligence theory in suit under 46 USCS Appx § 688, it is not necessary to show that assailant acted in course of his employment in committing assault. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288.
Where assault by chief cook on plaintiff-dishwasher was for purpose of speeding up plaintiff's work, chief cook was acting within scope of his authority, and shipowner is liable under 46 USCS Appx § 688. Pittsburgh S.S. Co. v Scott (1947, CA6 Ohio) 159 F2d 373.
Shipowner is not liable under doctrine of respondeat superior for wrongful assault committed by one employee on another unless assault is committed in furtherance of or in attempt to further owner's business. Jones v Lykes Bros. S.S. Co. (1953, CA2 NY) 204 F2d 815, cert den 346 US 857, 98 L Ed 370, 74 S Ct 72, reh den 346 US 905, 98 L Ed 404, 74 S Ct 217 and reh den 348 US 960, 99 L Ed 749, 75 S Ct 447.
Assault may be considered as having been committed within scope of assailant's employment, and in furtherance of employer's business, where it is used as disciplinary measure. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.
286. Assaults induced by intoxication
Although under warranty of seaworthiness shipowner is not liable every time seaman gets drunk and does damage to member of crew, nor every time injuries result from fisticuffs on shipboard, shipowner is liable for breach of warranty of seaworthiness to seaman injured through assault by drunken fellow crew member where it appears assailant is not equal in disposition to ordinary men of his calling, and that assailant's membership in crew renders crew incompetent to meet contingencies of voyage. Boudoin v Lykes Bros. S.S. Co. (1955) 348 US 336, 99 L Ed 354, 75 S Ct 382, amd on other grounds 350 US 811, 100 L Ed 727, 76 S Ct 38.
Laxity of ship's officers in enforcing ship's rule against bringing liquor onboard may be negligence sufficient for purposes of 46 USCS Appx § 688 where attack by plaintiff's assailant was induced by intoxication. Stankiewicz v United Fruit S.S. Corp. (1956, CA2 NY) 229 F2d 580.
Sole fact that plaintiff's assailant had insisted on working when he was unfit for duty because of intoxication and search of his room at that time disclosed knife hidden under pillow, will not allow recovery under 46 USCS Appx § 688 on theory that defendant had been negligent in retaining crew member of known dangerous propensities. Connolly v Farrell Lines, Inc. (1959, CA1 Mass) 268 F2d 653, cert den 361 US 902, 4 L Ed 2d 158, 80 S Ct 208.
Seaman failed to establish liability of shipowner for breach of warranty of seaworthiness under 46 USCS Appx § 688, where seaman was injured by drunken crewmember, because seaman failed to proffer evidence that crewmember used dangerous weapon or had savage disposition. McKinley v Afram Lines (USA) Co. (1993, DC Mass) 834 F Supp 510, summary op at (DC Mass) 22 M.L.W. 520.
Summary dismissal of seaman's negligence claim under 46 USCS Appx § 688 is denied, where seaman injured in fight claims that sailor who hurt him returned from shore leave in intoxicated state and carrying case of beer, while sailor claims seaman neglected to call him for his watch, because reasonable juror could conclude that U.S. was negligent in failing to provide gangway watch or to enforce ban on liquor aboard ship. Hamilton v United States (1996, ED Tex) 928 F Supp 684.
287. Employer's knowledge; assailant's violent propensities
Evidence that fellow seaman who had assaulted plaintiff was of vicious and belligerent nature and likely to inflict bodily harm upon his fellow crew members and that ship's officers knew this fact, or it should have been known to them in exercise of ordinary diligence, supports recovery under 46 USCS Appx § 688 for injuries resulting from assault. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288.
Liability under 46 USCS Appx § 688 was not affected by fact that assault by assailant occurred some distance away from ship, where assailant was vicious and violent employee of defendant, fact of which defendant was or should have been aware. Kyriakos v Goulandris (1945, CA2 NY) 151 F2d 132.
Where employer negligently hires, or negligently retains in his employment, person whom he knows or should know to be of dangerous character or disposition, seaman who receives personal injuries from assault committed by such person may hold employer liable under 46 USCS Appx § 688 for his injuries. Hanlon v Waterman S.S. Corp. (1959, CA2 NY) 265 F2d 206, cert den 361 US 822, 4 L Ed 2d 67, 80 S Ct 69.
Mere allegation that crew members had felonious and criminal propensities did not sustain cause of action under 46 USCS Appx § 688 in absence of allegation that defendant knew of these propensities or had knowledge of facts putting it on notice. Birks v United Fruit Co. (1930, DC NY) 48 F2d 656.
Where assault of which plaintiff complains is result of personal difference between plaintiff and his assailant, assailant was not known to officers of vessel to be violent and belligerent and plaintiff had himself instigated friction which resulted in assault, no recovery may be allowed under 46 USCS Appx § 688. Condon v Grace Line (1951, DC Cal) 97 F Supp 197.
Seaman's claim of Jones Act (46 USCS Appx § 688) negligence must fail, where he claims he got off vessel and went onto pier, and then seaman from another vessel attacked and brutally beat him, because fact that vessel owner informed seaman that alleged attacker was angry with him does not support conclusion that he constituted foreseeable risk. Corrigan v Harvey (1996, DC Hawaii) 951 F Supp 948, 1996 AMC 2831.
Finding that shipowner was negligent under 46 USCS Appx § 688 was precluded, where seaman who was injured in attack by fellow crewmember brought action against shipowner, presenting evidence that attacking crewmemeber drank and used illegal drugs, which was known by shipowner, because this evidence was insufficient evidence of violent behavior to find that shipowner had notice, actual or constructive, that crewmember's drunkenness and drug abuse would result in risk or peril of shipboard assault. Kowalski v American S.S. Co. (1996, ED Mich) 954 F Supp 140.
288. --Presence of weapons
Sole fact that plaintiff's assailant had insisted on working when he was unfit for duty because of intoxication and search of his room at that time disclosed knife hidden under pillow, will not allow recovery under 46 USCS Appx § 688 on theory that defendant had been negligent in retaining crew member of known dangerous propensities. Connolly v Farrell Lines, Inc. (1959, CA1 Mass) 268 F2d 653, cert den 361 US 902, 4 L Ed 2d 158, 80 S Ct 208.
Trial court erred in not submitting to jury question whether switch-blade knife was dangerous weapon within meaning of § 2277 of Title 18, and in not permitting it to decide, under appropriate instructions, if shipowner, through his officers, agents or employees, knew or should have known that seaman had switch-blade knife on ship and whether shipowner failed to take prudent action to protect crew. Fall v Esso Standard Oil Co. (1961, CA5 Fla) 297 F2d 411, 1962 AMC 951, cert den 371 US 814, 9 L Ed 2d 55, 83 S Ct 24.
JONES ACT- TABLE OF CONTENTS
|
1999-2005 by William H. Lawson.
