Jones Act Claim in Texas State Court [cause of action for maritime personal injury to seamen]

  
LAWSUIT UNDER THE JONES ACT IN TEXAS STATE COURT 
 
The Jones Act provides a cause of action for maritime workers injured by an employer’s negligence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 405 (Tex. 1998); Diamond Offshore Mgmt. Co. v. Horton, 193 S.W.3d 76, 78 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Federal law provides that a party asserting an admiralty action may bring the action in state court. Ellis, 971 S.W.2d at 405–06; Horton, 193 S.W.3d at 78; see 28 U.S.C. § 1333(1) (2000). When a state court hears an admiralty case, that court occupies essentially the same position occupied by a federal court sitting in diversity: the state court must apply substantive federal maritime law but follow state procedure. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 78.
 
A fundamental duty of a Jones Act employer is to provide its seamen employees with a reasonably safe place to work. Noble Drilling (US) Inc. v. Fountain, 238 S.W.3d 432, 439 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989)). The proper standard for determining the duty of care owed by an employer or a seaman is ordinary prudence under the circumstances. Id. (citing Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 658 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (citing Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335, 339 (5th Cir. 1997))). The circumstances of a seaman’s employment include not only his reliance on his employer to provide a safe work environment but also his own experience, training, or education. Id. (citing Gautreaux, 107 F.3d at 339). Thus, the reasonable person standard applies, and the standard in a Jones Act negligence action “becomes one of the reasonable seaman in like circumstances.” Id. (quoting Gautreaux, 107 F.3d at 339).

The Jones Act expressly incorporates the Federal Employers’ Liability Act (“FELA”) and the case law developing that statute, and thus the causation standard under the Jones Act is the same as that under FELA. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79. Under FELA, the causation burden is not the common law proximate cause standard; rather, the causation burden is “whether the proof justifies with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury for which the claimant seeks damages.” Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79; see also Fountain, 238 S.W.3d at 439–40 (“Under the Jones Act, a seaman is entitled to recovery if his employer’s negligence is the cause, in whole or in part, of his injury.”) (citing Gautreaux, 107 F.3d at 335). This burden has been termed “featherweight.” Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79. Thus, to prove negligence, an employee must prove: (1) personal injury in the course of his employment; (2) negligence by his employer or an officer, agent, or employee; and (3) causation to the extent that his employer’s negligence was the cause “in whole or in part” of his injury. Rigdon Marine Corp. v. Roberts, 270 S.W.3d 220, 226 (Tex. App.—Texarkana 2008, pet. denied) (citing Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999) and Gautreaux, 107 F.3d at 335).

In addition to a less stringent burden of proof, the standard of appellate review in Jones Act cases, as provided under FELA, is also less stringent than under the common law. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79. The purpose of the Jones Act standard of review is to vest the fact-finder with complete discretion on factual issues about liability. Ellis, 971 S.W.2d at 406 (citing Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506–07, 77 S. Ct. 443, 448–49 (1957) (discussing standard of review under FELA, which was incorporated into Jones Act)); Horton, 193 S.W.3d at 79. Once the appellate court determines that some evidence about which reasonable minds could differ supports the verdict, the appellate court’s review is complete. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79; see also Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir. 1994) (holding that some evidence of “causal nexus” between negligence and injury is all that is required to survive appellate review of favorable verdict on Jones Act negligence claim). We apply this less-stringent standard rather than a traditional factual sufficiency review of a finding of liability under the Texas “weight and preponderance” standard. Ellis, 971 S.W.2d at 406; Horton, 193 S.W.3d at 79.

SOURCE: HOUSTON COURT OF APPEALS - FIRST DISTRICT - NO. 01-10-01025-CV - 4/26/2012

Workplace injury claim by employee not covered by employer's Workers Comp (nonsubscriber)

LAW APPLICABLE TO WORKER’S COMPENSATION NON-SUBSCRIBING EMPLOYERS
  
In order for an employee to recover from an employer who is a non-subscriber under the Texas Worker’s Compensation Act, the employee must establish negligence on the part of the employer. Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. Id. The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
 
The existence of duty is a question of law for a court to decide from the facts surrounding the occurrence in question. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). “The existence of duty is a question of law when all of the essential facts are undisputed, but when the evidence does not conclusively establish the pertinent facts or the reasonable inferences to be drawn therefrom, the question becomes one of fact . . . .” Mitchell v. Missouri-Kansas, Texas R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990) (quoting Bennett v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex. App.—Texarkana 1981, writ ref’d n.r.e.)); see also Sanders v. Herold, 217 S.W.3d 11, 15 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Mitchell).
  
An employer has a duty to “warn an employee of the hazards of employment and provide needed safety equipment or assistance.” Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 568 (Tex. 2007). An employer has a “duty to warn or caution an employee of a danger” when (1) ‘the employment is of a dangerous character requiring skill and caution for its safe and proper discharge,” and (2) “the employer is aware of the danger and has reason to know the employee is unaware.” Nat’l Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.). However, an employer is not an insurer of its employees’ safety. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). An employer therefore does not owe a duty “to warn of hazards that are commonly known or already appreciated by the employee.” Jack in the Box, 221 S.W.3d at 568–¬69 (quoting Elwood, 197 S.W.3d at 794). In looking to the scope of this duty, the employee’s age and experience should be considered. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 412 (Tex. 2009).
  
“Where an employer provides its employee with at least one safe way to perform her assigned tasks and the employee chooses to perform the task by a different method, thereby injuring herself, the employer is not liable.” Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544, 548 (Tex. App.—Texarkana 1996, writ denied) (citing Great Atl. & Pac. Tea Co. v. Lang, 291 S.W.2d 366, 367–68 (Tex. Civ. App.—Eastland 1956, writ ref’d n.r.e.)). When, however, there is evidence that the employer failed to instruct its employees on how to perform their jobs while avoiding known safety risks, an employer may still be liable. See id.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00867-CV - 10/20/11