7.22 THIRD PARTY ACTION UNDER
LONGSHOREMAN'S AND HARBOR WORKERS COMPENSATION ACT — COMPARATIVE NEGLIGENCE Civil Model Jury Charge
(Approved
before 1985)
If
in accordance with the principles of law heretofore given you, you find that
the defendant was negligent and that plaintiff was contributory negligent, you
will apply the following principle of law commonly referred to as the law of
comparative negligence.
In
an action such as this, to recover damages for personal injuries, the fact that
the plaintiff may have been guilty of contributory negligence shall not bar a recovery
but the damages shall be diminished by the jury in proportion to the amount of
negligence attributable to such employee.
This
provision which deals with the effect of the plaintiff's contributory negligence
upon the amount of his/her recovery, states two principles of law:
§ The fact that the plaintiff may have been guilty
of contributory negligence shall not bar a recovery, but
§ if the plaintiff is guilty of contributory
negligence the effect of such contributory negligence is that the damages the
plaintiff is entitled to shall be diminished by you in proportion to the amount
of such contributory negligence.
These
provisions of law are applicable to the facts in this case in the following
manner:
First,
ascertain the amount of damages that the plaintiff would be entitled to without
reference to his/her contributory negligence.
Second,
ascertain the proportion or percentage of such amount of damages which is
attributable to plaintiff's contributory negligence.
Third,
diminish the amount ascertained in the first step by the proportion or
percentage of contributory negligence ascertained in the second step.
The
amount remaining is the amount the plaintiff is entitled to.
Alternate Charge
If
in accordance with the principles of law heretofore given you, you find that
the defendant was negligent and that plaintiff was contributory negligent, you
will apply the following principle of law commonly referred to as the law of
comparative negligence.
In
an action such as this, to recover damages for personal injuries, the fact that
the plaintiff may have been guilty of contributory negligence shall not bar a
recovery but the damages shall be diminished by the jury in proportion to the
amount of negligence attributable to such employee.
This
provision which deals with the effect of the plaintiff's contributory
negligence upon the amount of his/her recovery, states two principles of law:
§ The fact that the plaintiff may have been guilty
of contributory negligence shall not bar a recovery, but
§ if the plaintiff is guilty of contributory
negligence the effect of such contributory negligence is that the damages the
plaintiff is entitled to shall be diminished by you in proportion to the amount
of such contributory negligence.
To
explain how to apply the doctrine of comparative negligence to the facts of
this case, I shall use an illustration.
You
may determine that the amount of the plaintiff's damages for his/her personal
injuries was X dollars and that the percentage or proportion of that amount of
X dollars which is attributable to the plaintiff because of his/her
contributory negligence is 50%. You
would compute what 50% of X dollars is, that is, 50 cents times each of X dollars,
and diminish the amount of X dollars by 50% or 50 cents out of each dollar,
which would leave the amount 50% of X dollars to which the plaintiff would be
entitled in your verdict.
You
may determine that the amount of the plaintiff's damages for his/her personal
injuries was X dollars and that the percentage or proportion of that amount of
X dollars which is attributable to the plaintiff because of his/her
contributory negligence is 10%. You
would compute what 10% of X dollars is, that is, 10 cents times each of X
dollars, and diminish the amount of X dollars by 10% or 10 cents out of each
dollar, which would leave the amount of 90% of X dollars to which the plaintiff
would be entitled in your verdict.
You
may determine that the amount of the plaintiff's damages for his/her personal
injuries was X dollars and that the percentage or proportion of that amount of
X dollars which is attributable to the plaintiff because of his/her
contributory negligence is 90%. You
would compute what 90% of X dollars is, that is, 90 cents times each of X dollars,
and diminish the amount of X dollars by 90% or 90 cents out of each dollar,
which would leave the amount 10% of X dollars to which the plaintiff would be
entitled in your verdict.
Cases:
Reed v. S.S. Yaka, 373 U.S. 410, 10 L.Ed.2d
448, 83 S.Ct. 1349 (1963); United N.Y. & N.J. Pilots Asso. v.
Halecki, 358 U.S. 613, 3 L.Ed.2d 541, 79 S.Ct. 417
(1959); Romero v. International Terminal Operat. Co., 358 U.S.
354, 3 L.Ed.2d 368, 79 S.Ct. 468 (1959); Kermarec v.
Compagnie Generale Transatlantique, 348 U.S. 625, 3 L.Ed.2d
550, 79 S.Ct. 406 (1959); Pope and Talbot, Inc. v. Hawn, 346 U.S.
406, 98 L.Ed. 143, 74 S.Ct. 202 (1953); Caldarola v. Eckert,
332 U.S. 155, 91 L.Ed. 1968, 67 S.Ct. 1569 (1947).
NOTE TO JUDGE
Title 33
(Navigation and Navigable Waters) Chapt. 10, Sec. 901 et seq. of
the U.S. Code, is the Longshoremen's and Harbor Workers' Compensation
Act.
The remedy under
this Act is exclusive and in place of all other liability of such employer to
his/her employee or legal representative.
In addition to the
foregoing remedy, longshoremen and harbor workers may also have a third-party
action against the vessel or its owner grounded on negligence or
unseaworthiness or both. Such an action
may be and generally is brought in a Federal District Court. However, the action under either theory may
also be brought in a state court of the state in whose territorial waters the
injury occurred or where jurisdiction over the parties may be obtained. In such cases the Federal Maritime Law
prevails with the comparative negligence rule applying.
Third-party actions
under the Longshoremen's and Harbor Workers' Compensation Act may be tried in
state courts. See Title 33 U.S.C.A., Sec. 933; Paxos v. Jarka Corp.
314 Pa. 148, 171 A. 468 (Sup. Ct. 1934); Kermarec v. Compagnie
Generale Transatlantique, 348 U.S. 625, 3 L.Ed.2d 550,
79 Sup Ct. 406 (1959).
Compensation is
payable irrespective of fault in respect to disability or death of an employee
if the disability or death results from an injury occurring upon the navigable
waters of the United States (including any dry dock).
