HCBA Lawyer Magazine Vol. 28, No. 3 | Page 72

tort LiabiLitY unDer seCtion 905(b) of the Longshore aCt
Workers’ Compensation Section
Chair: Anthony Cortese – Attorney at Law
be aware of
possible
additional
claims against
T
wo recent decisions
under 33 U.S.C. §
905(b), reflect the broad
liability of a ship owner
to the employee of another company
who comes on the ship to help
unload the ship or to perform
repairs or maintenance. Practitioners
need to be aware of these possible
additional claims against ship
owners, even if the workers don’t
regularly work on ships.
The first decision focused on
liability. In Murray v. Southern Route
Maritime, 870 F. 3d 915 (9th Cir.
2017), the plaintiff was a longshore
worker who claimed he was injured
by a faulty floodlight when a piece
of metal he was holding came
into contact with a floodlight
provided by the owner of the
ship and caused him an electrical
shock. He claimed the owner was
negligent in turning over a ship
with a faulty flood light. The trial
judge instructed that the owner of
70
ship owners.
© Can Stock Photo / khunaspix
the ship owed a duty to the
longshore worker to turn over the
ship in a reasonably safe condition,
which included a requirement to
inspect the ship and equipment.
This is a broad view of liability
for the ship owner.
The second appeal focused on
preexisting conditions. In Koch v.
United States, 857 F. 3d 267 (5th
Cir. 2017), the plaintiff was a
foreman inspecting a ship to make
an estimate for proposed costs of
repairs. The plaintiff missed the
last step of a stairway and fell,
claiming the cause was that the
lighting of the stairway was
inadequate. The appeal was not
of the finding that there was
negligence that caused the fall, but
of the finding that the defendant
was responsible for all subsequent
injuries and medical conditions.
The plaintiff had been seen before
the fall in January of 2012, and his
doctor wrote that he needed knee
replacement surgery “in the worst
way.” After the fall on February 2,
2012, an orthopedic surgeon
testified the fall made both knees
worse, causing an urgent need
for bilateral knee replacements.
The plaintiff also had preexisting
documented carpel tunnel
syndrome, progressive lower back
pain and osteoarthritis, cervical
fusion at C3-4 and C4-5, and
multiple joint arthritis. But again,
he presented experts who said the
fall made the conditions worse.
After a non-jury trial, the trial
judge awarded damages for fusion
procedures at C5-6 and C6-7,
knee replacements, and all the
other conditions and procedures
relating to complications. The
Continued on page 71
JAN - FEB 2018
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HCBA LAWYER