MOORE, Circuit Judge:
In this personal injury suit brought under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), plaintiff Attilio Mattivi (Mattivi) appeals from a judgment notwithstanding the verdict granted by the United States District Court for the Eastern District of New York, Honorable Eugene H. Nickerson, Judge, in favor of defendant South African Marine Corporation (South African).
The facts are comparatively simple. In June, 1973 Mattivi was employed as a marine carpenter by New Jersey Expert Marine Carpenters, Inc. (NJEMC). At 8:00 A.M. on June 7, 1973 Mattivi arrived for his day's work at Pier 2 of the Army Base in Brooklyn, New York, and was assigned to plank over a section of metal drums stowed along hatch number five of South African's ship, the S.A. HUGUENOT. Working with two other carpenters, by 9:30 A.M. he completed a substantial area of the planking and began to run a catwalk down the middle. At that point, their work was interrupted by three men. One of the men (who Mattivi thought was dressed in a uniform) watched the other two men raise a rubber hose up from a barge docked alongside the HUGUENOT, run it over the planking, and drop it down into the hold of hatch number five. In the act of laying the hose, these men spilled some drops of oil on the planking. In Mattivi's words: "Then when they coupled [the hose], [spilled a] couple drops of oil, then I turn to the man, the uniform man I say, `Look, you see this', he said, `Yes, don't worry about it, we take care of it' then I turn around and do my work." (App. 41-42). Mattivi never ascertained the identity of the three men or who their employers were.
Around 11:00 A.M. Mattivi decided to go get a fresh supply of nails. As he was walking on the planking he slipped off the platform and fell three or four feet to the metal deck below. Mattivi testified: "I went to get nails and I walk a couple of — I slip on my left foot on the oil and I drop my right foot on the hose and I fell down on my left side on the deck". (App. 44). One of the other carpenters helped Mattivi to his feet and led him to an area on the deck where he could sit down. Mattivi testified that he did not see any hose or oil as he was walking just before the fall, and that he did not know what caused him to slip. (App. 58-63, 73, 76-77). He never returned to hatch number five that day and never made a complaint to any sailors or to anyone else. He did mention the fall to his foreman, Frank Zovich, who told him to "take it easy" (Deposition of January 30, 1975, at 30-31) for the rest of the day. Mattivi did that, working at hatches number two and three handing down lumber to other carpenters until the 9:00 P.M. quitting time.
Mattivi sued South African pursuant to the recently amended LHWCA, 33 U.S.C. § 905 et seq., for the personal injuries he allegedly suffered as a result of his fall. South African impleaded the Manhattan Oil Transport Corporation (Manhattan), as well as the International Terminal Operating Company, Inc., Texaco, Inc., NJEMC, and the Colgate-Palmolive Company. The trial was split, and the issue of liability was tried before Judge Nickerson and a jury on November 28 and 29, 1978. Mattivi was the
The jury returned with a verdict in favor of Mattivi. South African immediately renewed its motion to set the verdict aside, stating that despite the "somewhat conflicting and difficult" strand of LHWCA cases in this Circuit, it was hard to believe that "any court could find that the evidence is sufficient as a matter of law to make a finding of negligence on the part of the ship owner in this case". (Supp.App. 6). After a brief oral argument, Judge Nickerson ruled from the bench:
Judge Nickerson also granted a new trial in the alternative because he was "very disturbed" by the inconsistencies between Mattivi's testimony at his depositions and at trial and by the fact Mattivi signed his
Mattivi is now arguing on appeal that there was sufficient evidence in the record to support the verdict of the jury and that it was error for the trial court to grant judgment n. o. v. merely because it drew different conclusions from the facts than those fairly drawn by the jury. South African argues that the plaintiff's failure to prove the presence of a dangerous condition, notice, or causation gave the trial court no choice but to set the verdict aside. In holding the trial court properly granted judgment n. o. v., we are led to consider what the standard for finding sufficiency of evidence is in post-1972 LHWCA cases.
In the Second Circuit, the guiding principle trial courts apply when deciding whether to grant judgment n. o. v. for insufficiency of evidence is "whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached." Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970).
See also Traupman v. American Dredging Co., 470 F.2d 736 (2d Cir. 1972) and Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969). Thus, when deciding whether to grant a judgment n. o. v., the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence
This Court has repeatedly attempted to clear up the confusion left in the wake of the 1972 amendments to the LHWCA, and no purpose would be served by another discussion of the intent and effect of those amendments.
Principles are by their very nature skeletal, and require the flesh and blood of cases to come to life. The elements of the above stated principle have been duly elucidated by cases handed down in this Circuit during the last decade. As for the element of a dangerous condition, we turn to Rice v. Atlantic Gulf & Pacific Co., 484 F.2d 1318, 1321 (2d Cir. 1973):
Since this language was spoken in reference to a Jones Act plaintiff who "shoulders a lighter burden [for establishing negligence] then his counterpart on land would carry", McMillan v. Marine Sulphur Shipping Corp., 607 F.2d 1034, 1039 (1979), citing Gilmore & Black, Admiralty, §§ 6-35, 6-36 (2d ed. 1975), it is a fortiori applicable to the claim of a LHWCA plaintiff governed by a heavier land-based burden of proof. In Mattivi's case, there was no proof indicating that a couple drops of oil allegedly spilled at 9:30 A.M. on a wooden platform constituted a dangerous condition, or even that the drops still existed at 11:00 A.M. when the fall occurred.
There are numerous cases explicating the degree of notice that will render a shipowner liable. One of the most recent is Canizzo v. Farrell Lines, Inc., 579 F.2d 682 (2d Cir.) cert. denied, 439 U.S. 929, 99 S.Ct. 316, 58 L.Ed.2d 322 (1978), which held that a shipowner cannot be held liable for physical injuries invitees suffer due to non-obvious dangerous conditions unless the shipowner knows or should have known of the condition. Ruffino v. Scinda Steam Navigation Co., 559 F.2d 861 (2d Cir. 1977), held that a shipowner cannot be ruled liable for a dangerous condition created by an independent contractor unless the shipowner has actual or constructive knowledge the condition exists. Giglio v. Farrell Lines, Inc., 613 F.2d 429 (2 Cir. 1980), recently applied the standard
As for the element of causation, this Court recently endorsed the following statement of the burden carried by LHWCA plaintiffs for showing negligence:
In the instant case, Mattivi failed to show that any negligence on the part of South African caused his injury. Mattivi was not employed by South African or the oil barges, and South African was not responsible for the carpentry work performed by Mattivi and his co-workers. There was no proof of who was actually responsible for spilling the oil. Mattivi himself merely speculated that it was oil he had slipped on since he did not see the hose or oil before he fell and did not investigate the cause of the fall afterwards. There is simply no evidence of any negligence on South African's part, much less evidence of negligence that proximately caused Mattivi's fall. In short, the entire case against South African depended on Mattivi's guessing rather than his knowing.
Given this factual and legal background, it is understandable that the trial judge had serious doubts as to the merits of Mattivi's case. Despite these misgivings, however, he very properly reserved decision on South African's motion for a directed verdict and allowed the case to go to the jury. When the jury returned a verdict in favor of Mattivi, the trial judge was confronted with a motion for judgment n. o. v. Without weighing the evidence, passing on the credibility of the witness, or substituting its judgment for that of the jury, the trial court looked at the evidence in a light most favorable to Mattivi and correctly concluded that given the complete absence of substantial evidence supporting the verdict the jury's finding could only have been the result of sheer surmise and conjecture.
In summary, "there is simply no basis for finding fault on the part of the ship ... compatible with Congress' direction that recovery against the ships may be had only on proof of negligence pursuant to land-based standards". McMillan, supra, at 1039. The trial court's application of the standard for ruling on the sufficiency of evidence in LHWCA cases was entirely proper. The entry of judgment n. o. v. in favor of South African is affirmed.
This Circuit agrees. See Fratta v. Grace Line, Inc., 139 F.2d 743, 744 (2d Cir. 1943) and Lindeman v. Textron, Inc., 229 F.2d 273, 276 (2d Cir. 1956). But see Gratian v. General Dynamics, Inc., 587 F.2d 121, 122 (2d Cir., 1978) and Ianuzzi v. South African Marine Corp., 510 F.2d 950 (2d Cir. 1975) for examples of exceptional situations where a directed verdict is appropriate.