Background:
Reider M. Juliussen, plaintiff, filed this action under the Jones Act after falling on board the ship which he works and injuring his right knee. Buchanan is Juliussen's employer and operator of the ship.

Juliussen worked as a Mate for Buchanan. Juliussen obtained a license upon completion of a Coast Guard exam and the license identifies him as "an officer of the vessel that he serves on" and therefore, outranked the deckhands.

Juiliussen left and returned to work for Buchanan in spite of his concern that their vessels were "unseaworthy". Juliussen never felt his safety was in jeopardy.

Juilissen's job involved relieving the Captain from steering responsibilities in six-hour intervals, his hours were fixed at noon to six and midnight to six am. When the Captain is on duty, Juliussen is not required to do much but is still considered "in service to the vessel". It is not Juliussen's job to perform maintenance or repairs on the boat.

Prior to this accident, Juliussen had fallen on the stairs of nearly every Buchanan boat he had served on but had not been injured.

Juliussen attributes his falling to the lack of adequate lighting in the stairwell as well as the worn condition of the diamond treads. Juluissen also told the Captain about these problems with the stairwell in general by way of conversation over the years. However, he failed to formally report the problems to the Captain or to shore personnel.

At the time of the fall, Juliussen was wearing low-top sneakers that had rubber soles. He did not wear his leather boots because he was not on duty. The sneakers had tread on them and Juliussen believed they had better traction than company sanctioned leather boots.

Following surgery Juliussen continued to work as Mate on the vessel, which still has many unseaworthy conditions of which Juliussen complains, including the stairwell. According to his doctor, he will develop arthritis in the right knee.

Juliussen filed this action under Jones Act negligence, unseaworthiness, and sought damages for approximately $717,000.

Buchanan responded asserting primary duty doctrine, and that Juliussen's sole negligence was the cause of his fall. Buchanan filed a motion for summary judgment on these issues.

Issue:
Did this Court find that Juliussen's claims were barred based on the primary duty doctrine and/or because the fall was attributable 100% to Juliussen's negligence?

Held:
First, Buchanan asserted that the stairway did not present a dangerous condition. Buchanan contended that the stairway was and continues to be safe and reasonably fit for seamen to move between levels on the ship. Juliussen admitted that the stairway on the ship is typical of any other tugboat stairway and nothing in the stairway has changed over the previous four years leading up to his fall.

Bucnahan also asserted that Juliussen failed to officially give them notice to the dangerous condition. Moreover, they argued that Juliussen's own actions were the sole and proximate cause of his injuries.

Juliussen countered, arguing that there are issues of material fact whether Buchanan breached its duty to provide a reasonably safe workplace by not providing lighting in the stairwell  and that it could have caused his fall.

This Court recognized there was conflicting testimony and evidence as to whether Buchanan's removal of a fluorescent light bulb and subsequent installation of a nightlight breached their duty. Buchanan failed to present evidence, outside its own statements, that the nightlight was a reasonable substitute lighting for a tugboat stairwell and that no dangerous condition existed. Therefore, there are genuine issues of material fact.

Buchanan also argued that the primary duty rule applied to bar Juliussen's claims.

According to Buchanan Juliussen had a duty to maintain safe conditions on the vessel and that because he knew of the conditions, failing to remedy or notify anyone constituted a breach of this duty. Juliussen also admitted he was responsible for preventing and correcting the known hazard.

Juluissen claimed that genuine issues of fact existed whether his duty as an employee "extended to furnishing the vessel with specific equipment the owner did not supply" and whether his injuries were caused by a breach of Buchanan's breach of its own duty to provide a safe workplace.

Accordingly, this Court denied Buchanan's motion for summary judgment.

Comment:
Employers/Vessel Owners will often assert the "primary duty doctrine" as an affirmative defense.

Under the primary duty doctrine, an employee cannot recover for injuries caused by his own breach of a duty which the injured person has consciously assumed as a term of his employment. The primary duty doctrine acts as an absolute bar to a seaman's recover under the Jones Act.

Steve Gordon