Moore, J. Marks, III

Owen, David R.

English

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Louisiana Law ReviewVolume 43 | Number 6July 1983Case Commentary: Comparative Negligence in aMaritime Products Liability Case - Lewis v. Timco,Inc.David R. OwenJ. Marks Moore IIIThis Front Matter is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationDavid R. Owen and J. Marks Moore III, Case Commentary: Comparative Negligence in a Maritime Products Liability Case - Lewis v.Timco, Inc., 43 La. L. Rev. (1983)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol43/iss6/3CASE COMMENTARYCOMPARATIVE NEGLIGENCE IN A MARITIMEPRODUCTS LIABILITY CASE: Lewis v. Timco, Inc.David R. Owen* and J. Marks Moore, III**The March 1983 issue of the Louisiana Law Review contained anarticle by the authors entitled "Comparative Negligence in MaritimePersonal Injury Cases."' The article expressed the opinion that theadmiralty rule of comparative negligence is applicable in a maritimeproducts liability case,2 citing several authorities for this statement.Indeed the authors were not aware of any admiralty case reachinga different result. On February 14, 1983, however, shortly after thatissue was set in type, the United States Court of Appeals for theFifth Circuit held that comparative negligence was not applicable ina maritime products liability case. Lewis v. Timco, Inc., 697 F.2d 1252(5th Cir. 1983), rehearing en banc granted, No. 81-3022 (Apr. 18, 1983)(en banc rehearing June 7, 1983). The authors respectfully suggest thatthe case was wrongly decided.3The plaintiff, Alfred Lewis, was injured while working on a jackupdrilling barge in the coastal waters of Louisiana. He was operatinga power tong device in an attempt to retrieve a piece of equipmentthat had been accidently dropped into the drilling hole. The devicehad been manufactured by defendant Joy Manufacturing Company andwas owned by defendant Rebel Rentals, Inc. A representative of defen-dant Edwards Rental and Fishing Tools, Inc. was in direct chargeof the "fishing" operation in which plaintiff was participating at thetime of his accident. Lewis also sued his employer, Timco, Inc., butthat defendant was dismissed because Lewis' exclusive remedy againsthis employer was under the Longshoremen's Act.'The power tong unit had a design defect that could create a situa-tion in which the "snubbing line" could wrap around the operator ifthe operator did not manipulate the controls in precisely the rightsequence. Joy's instruction manual gave no warning of this severehazard, but it was well known to the representatives of Rebel andCopyright 1983, by LOUISIANA LAW REVIEW.* Member, Maryland Bar. Past President, The Maritime Law Association of the.United States.** Member, Maryland Bar.1. 43 LA. L. REV. 941 (1983).2. Id. at 947-49.3. The editors of the Review have graciously afforded the authors the opportuni-ty to supplement their earlier article by commenting in some detail on the Lewisdecision.4. Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. SS 901-950(1976).4LOUISIANA LA W REVIEWEdwards who were thoroughly experienced in this operation. ForLewis, on the other hand, this job was only his second full-time assign-ment as a power tong operator. Although he was having obvious prob-lems in synchronizing the controls, the Rebel and Edwards represen-tatives did not advise him to shorten the snubbing line, an action whichwould have prevented the injury.After a bench trial, the United States District Court for theWestern District of Louisiana found Joy liable both in strict productsliability and in negligence and found Rebel and Edwards each liablein negligence. The court assessed financial responsibility among themon a 40/o-40/o-20%/o basis. It also found Lewis 500/o contributorilynegligent for failing to adjust the length of the snubbing line. TheDistrict Court therefore entered judgment for only one-half of plain-tiffs damages. Lewis appealed on the ground that the doctrine of com-parative negligence has no place in strict liability cases. The FifthCircuit Court of Appeals agreed and reversed.'The authors maintain that the admiralty rule of comparativenegligence is applicable in a maritime strict liability case such as Lewis.They further submit, with all due respect, that neither the reasoningnor the authorities cited by the Court of Appeals supports itsconclusion.The issue of comparative negligence in strict liability cases hasbeen much discussed by courts and commentators. Those who believethat the damages suffered by a plaintiff in a strict products liabilitycase should not be reduced to the extent of his negligence havegenerally argued that negligence cannot be compared with no-fault.Such analogy, they contend, would be like comparing "apples andoranges," trying to fit "square pegs in round holes," or attemptingto "mix oil and water." This purported analysis is little more thana play on words, and the Lewis court engages in just such an exercise.'These opponents of comparative negligence in strict liability cases,including this panel of the Fifth Circuit, also argue that public policydemands that the burden of injuries caused by defective productsshould be treated as a cost of production and spread among all con-sumers of the product. It is readily apparent that this analysis is in-complete; public policy certainly does not require that consumersgenerally should contribute to the social cost incident to the negligenceof individual consumer-plaintiffs.Most courts and most commentators have favored the applicationof comparative negligence principles in strict liability cases.' Although5. The panel consisted of Circuit Judges Garza, Politz, and Williams with JudgePolitz writing for the court.6. 697 F.2d at 1255 n.7.7. See Daly v. General Motors Corp., 20 Cal. 3d 725, 740-41, 575 P.2d 1162, 1171,144 Cal. Rptr. 380, 389 (1978), and authorities cited therein; see also Note, Contributing1544 [Vol. 43CASE COMMENTARYno purpose would be served by citing all the cases and articlesreaching this conclusion, no commentary on this subject would be com-plete without two references. Professor Schwartz in his treatise oncomparative negligence summarizes the issue and expresses the opin-ion that comparative negligence is quite compatible with strictliability.8 The Lewis court fails to cite this leading text or any courtdecisions opposed to the Schwartz thesis.Furthermore, the Supreme Court of California in Daly v. GeneralMotors Corp.,9 after fully discussing all of the arguments both for andagainst, held that comparative negligence is applicable in a strict lia-bility case. This decision takes on added authority because that courtoriginated the strict liability doctrine ' ° and was a leader in judicialadoption of pure comparative negligence." The court recognized "thetheoretical and semantic distinctions between the twin principles ofstrict products liability and traditional negligence, [but maintained that]they can be blended or accommodated." 2 In fact it referred to the"apples and oranges" argument as "conceptually suspect."13 Eschew-ing "the simple expedient of matching linguistic labels," the courtdiscussed in detail the policy considerations briefly, but inaccurately,mentioned by the Lewis court and found no "foundational reasons"for holding that the doctrine of strict products liability would be"defeated or diluted by adoption of comparative principles. 14 In addi-tion, the California court felt "strengthened in the foregoing conclu-sion by the federal experience under the maritime doctrine ofIunseaworthiness,' "15 noting the close similarity between unseawor-thiness and strict products liability.The authors of this commentary similarly felt strengthened in theirprevious treatment of the subject by three decisions of the UnitedStates Supreme Court applying comparative negligence in unseawor-thiness cases. 6 The Lewis court cites, without comment, only one ofthe Supreme Court decisions" and then reaches the opposite result.Negligence-When Should it be a Defense in a Strict Liability Action?, 43 LA. L. REV.801 (1983).8. V. SCHWARTZ, COMPARATIVE NEGLIGENCE 195-209 (1974 & Supp. 1981).9. 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (1978) (4-3 decision).10. Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal.Rptr. 697 (1963).11. Li v. Yellow Cab Co., 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975).12. 20 Cal. 3d at 734, 575 P.2d at 1167, 144 Cal. Rptr. at 385.13. 20 Cal. 3d at 735, 575 P.2d at 1167, 144 Cal. Rptr. at 385.14. 20 Cal. 3d at 736, 575 P.2d at 1168, 144 Cal. Rptr. at 386.15. 20 Cal. 3d at 738, 575 P.2d at 1170, 144 Cal. Rptr. at 388.16. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 1954 A.M.C. 1 (1953); Socony-VacuumOil Co. v. Smith, 305 U.S. 424, 1939 A.M.C. 1 (1939); The Arizona v. Anelich, 298 U.S.110, 1936 A.M.C. 627 (1936). See Owen & Moore, Comparative Negligence in MaritimePersonal Injury Cases, 43 LA. L. REV.. 941, 948 & n.56 (1983).17. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 1954 A.M.C. 1 (1953).1983] 15456LOUISIANA LA W REVIEWSince unseaworthiness is also "a species of liability without fault," 8a United States Court of Appeals should have felt bound to followthe Supreme Court decisions.The Lewis court cites the decisions of three United States Courtsof Appeals and indicates that at least one implicitly declined to applycomparative negligence in products liability cases in admiralty. Thecourt, however, recognizes that the Ninth Circuit, in Pan-AlaskaFisheries, Inc. v. Marine Construction & Design Co., 9 explicitly andfully held that comparative negligence applies in maritime productsliability and that the Sixth Circuit, in Schaeffer v. Michigan-OhioNavigation Co.,90 has so held without discussion on the basis of Pope& Talbot, Inc. v. Hawn.21 The third decision cited is that of the EighthCircuit in Lindsay v. McDonnell Douglas Aircraft Corp.' Although com-parative negligence was not involved in that case of strict liabilityin admiralty, the court in dictum indicated that the doctrine was ap-plicable, citing the Death on the High Seas Act (DOHSA)." This con-clusion would necessarily be true because section 766 of DOHSAspecifically incorporates the doctrine of comparative negligence. Inshort, in a strict liability case involving death on the high seas afederal court is required under DOHSA to apply the comparativenegligence rule.It is thus apparent that the Lewis court does not cite any deci-sion supporting its conclusion but does in fact cite one Supreme Courtdecision and three decisions of Courts of Appeals all of which reachthe opposite conclusion. Indeed there is an odd omission in that theFifth Circuit itself has previously approved a jury charge in a non-maritime strict liability case requiring a reduction of damages in pro-portion to the plaintiff's contributory negligence.24 The array of lawreview articles cited in the opinion is equally puzzling. The articlesby Plant25 and Feinberg26 and the note in the Southern California Law18. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 1946 A.M.C. 698, 704 (1946).19. 565 F.2d 1129, 1978 A.M.C. 2315 (9th Cir. 1977).20. 416 F.2d 217 (6th Cir. 1969).21. 346 U.S. 406, 1954 A.M.C. 1 (1953).22. 460 F.2d 631, 1974 A.M.C. 1341 (8th Cir. 1972).23. 46 U.S.C. SS 761-768 (1976).24. Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 290 (5th Cir. 1975). See alsoWest v. Caterpillar Tractor Co., 547 F.2d 885 (5th Cir. 1977), wherein the Fifth Circuitcertified to the Florida Supreme Court the question of whether "simple negligence"is, under Florida law, a comparative defense to a strict liability action. The Floridacourt replied that it was, and the Fifth Circuit referred to that finding as "sensible."Id. at 887.25. Plant, Comparative Negligence and Strict Tort Liability, 40 LA. L. REV. 403(1980).26. Feinberg, The Applicability of a Comparative Negligence Defense in a StrictProducts Liability Suit Based on Section 402A of the Restatement of Torts 2D (Can Oiland Water Mix?), 42 INS. COUNS. J. 39 (1975).1546 [Vol. 43CASE COMMENTARYReview all reach the conclusion that a negligent plaintiff should notrecover full damages from a defendant in a products liability case.The recommendation that comparative negligence should not applyin strict liability cases, contained in the article by Robinson 8 and ina comment,29 both in California law journals, preceded the decisionin Daly v. General Motors Corp. in which the California Supreme Courtrejected such views.The Lewis court seeks to justify the recovery by the plaintiff ofhis full damages on the basis that he was guilty of only "simplenegligence."3 No attempt is made to reconcile this label with thedistrict court's finding of fact, accepted on appeal, that Lewis was50% at fault. On a quantitative basis, this finding of fault would seemto be considerably more than "simple negligence." The authors,however, would argue that plaintiff's negligence should reduce plain-tiffs recovery even if the negligence is only 5%.By dismissing the plaintiff's negligence as merely "simple," thecourt is in effect recognizing the much-criticized jurisprudence ofdegrees of negligence, a concept that fortunately has never found favorin admiralty. The maritime law provides a flexible mechanism forapportioning fault.' It originated in collision cases but recently hasbeen employed in a maritime products liability case.2 The procedureis to evaluate a party's negligence separately as to the nature andextent of his culpability and as to the causal connection thereof withthe casualty. These two preliminary judgments are then factored in-to an overall percentage of contributing fault. For example, theculpability of an inexperienced workman guilty of only "simplenegligence, ineptness or inadvertence" 3 would seem to be of a verylow order. However, Lewis's failure to properly adjust the snubbingline was active negligence that led directly to his injury. If the courtof appeals disagreed with the finding of 50% negligence, its properoptions were to set aside the finding as clearly erroneous" and fixa percentage of its own or, preferably, to remand the case to thedistrict court with instructions as to the proper rationale for appor-tioning fault. 527. Note, Products Liability, Comparative Negligence, and the Allocation of DamagesAmong Multiple Defendants, 50 S. CAL. L. REV. 73 (1976).28. Robinson, Square Pegs (Products Liability) in Round Holes (ComparativeNegligence), 52 CAL. ST. B.J. 16 (1977).29. Comment, Comparative Fault and Strict Products Liability: Are They Compati-ble?, 5 PEPPERDINE L. REV. 501 (1978).30. 697 F.2d at 1255.3i. See Owen & Moore, supra note 16, at 956-58.32. Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d 1129, 1978A.M.C. 2315 (9th Cir. 1977).33. 697 F.2d at 1255.34. See FED. R. Civ. P. 52(a).35. Judge Gordon of the Eastern District of Louisiana has said: "In calculating19831 15478LOUISIANA LAW REVIEWWhat the Fifth Circuit has created in Lewis v. Timco, Inc. is aform of absolute liability in strict products liability cases. It is bothpractically and theoretically important to distinguish between absoluteliability and strict liability. As the Supreme Court of California notedin the Daly case: "From its inception, however, strict liability hasnever been, and is not now, absolute liability. 36 In Lewis, for example,Timco, Inc. was absolutely liable to its employee Lewis under theLongshoremen's Act. His negligence did not reduce his benefits underthe Act.37 Such absolute liability without bar or diminution by reasonof the plaintiff's negligence has been created by other than workers'compensation statutes.38 Strict products liability, afloat as well ason shore, bears no resemblance to such forms of absolute liability.Rather, it is in the admiralty closely similar to liability for unseaworthi-ness and should likewise involve the application of comparative negli-gence principles.the degree of fault, the court must consider, under basic common law tort principles,the blameworthiness of each vessel and the extent to which the vessel contributedto the accident." Southern Pac. Transp. Co. v. Tug Captain Vick, 443 F. Supp. 722,732 n.1, 1979 A.M.C. 1404, 1417 n.1 (E.D. La. 1977).36. 20 Cal. 3d at 733, 575 P.2d at 1166, 144 Cal. Rptr. at 384.37. See Owen & Moore, supra note 16, at 950.38. See, e.g., Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 83 N.E.2d 133 (1948).1548 [Vol. 43

Case Commentary: Comparative Negligence in a Maritime Products Liability Case - Lewis v. Timco, Inc.

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Case Commentary: Comparative Negligence in a Maritime Products Liability Case - Lewis v. Timco, Inc.

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