[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Washington County Superior Court. (WC 08-415). Associate Justice Jeffrey A. Lanphear.
For Plaintiff: Merlyn P. O'Keefe, Esq.
For Defendant: Martin K. DeMagistris, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
This case is a federal maritime action  in which Jody King, the plaintiff, raised claims for maintenance and cure; negligence under the federal Jones Act, as codified in 46 U.S.C. § 30104; and " breach of the warranty of seaworthiness."  On June 1, 2011, after a trial in Washington County Superior Court in which plaintiff prevailed on his claim for maintenance and cure, but not on his claims for negligence and breach of the warranty of seaworthiness, the trial justice denied the motion for a new trial filed by the defendant, Huntress, Inc., with respect to the claim for maintenance and cure and granted the motion for a new trial filed by the plaintiff with respect to the claims for negligence
and breach of the warranty of seaworthiness. The defendant appeals that decision, contending that the trial justice erred in: (1) denying the defendant's motion for a new trial on the claim of maintenance and cure because the trial justice, sua sponte, gave what the defendant considers to be an improper instruction to the jury with respect to " unearned wages; " (2) granting the plaintiff a new trial on the issues of negligence under the Jones Act and breach of the warranty of seaworthiness because, in the defendant's view, the trial justice " overlooked" and " misconstrued" testimony, resulting in a decision which was " clearly wrong; " and (3) applying Rhode Island's prejudgment interest statute, as codified in G.L. 1956 § 9-21-10, as opposed to the principles of general federal maritime law pertaining to prejudgment interest.
For the reasons set forth in this opinion, we vacate the trial justice's denial of defendant's motion for a new trial with respect to the claim for maintenance and cure. We likewise vacate the trial justice's grant of plaintiff's motion for a new trial on the claims of negligence under the Jones Act and breach of the warranty of seaworthiness. Additionally, we conclude that the trial justice's reliance upon Rhode Island's prejudgment interest statute was in error.
Facts and Travel
On May 29, 2008, plaintiff filed a complaint in Washington County Superior Court, against defendant; the allegations in the complaint related to the injuries sustained by plaintiff in an accident which took place on May 31, 2006 on board a commercial fishing vessel owned by the defendant corporation. The complaint contained a claim for maintenance and cure  (Count One); a claim for negligence under the federal Jones Act (Count Two); and a claim for breach of the " warranty of seaworthiness" (Count Three). In due course a trial was held over seven days in November of 2010. We summarize below the salient aspects of what transpired at that trial.
The Testimony at Trial
The Plaintiff's Witnesses
i. The Testimony of Plaintiff
The plaintiff testified at trial that he worked as a " [d]eckhand" on a commercial
fishing vessel named Persistence; he added that he received payment for his first " fishing trip" on the Persistence on March 12, 2005 and on several subsequent trips until his last trip on April 3, 2006. It was his testimony that during that time period he went on multiple fishing trips and earned approximately $54,000. When asked how he " would * * * know who was going on * * * the next trip," it was Mr. King's testimony that he would do " boat duty to follow the trip that [he] just finished and Kyle [Goodwin] would make the list out and determine who was going on that trip and who was going to stay on shore."
According to Mr. King's testimony, on May 31, 2006, he arrived at the Persistence for " boat duty" (because the vessel was in between fishing trips), and he was assigned painting duty. He stated that he was assigned to paint the " coaming,"  which was located " in between the second and third floor hatch; " Mr. King further explained that the coaming was on the ceiling of the " fish hold deck" and on the floor of the room above (the " packing room" ). It was his testimony that he placed a " stepladder" on the " cement floor of the fish hold; " he added that he " didn't believe [the stepladder] was on a slant." He indicated in this testimony that, as he reached the second rung of the stepladder, it " seemed to come out from underneath [him] and [he] fell" to his left. When asked if he knew why the stepladder came out from underneath him, he responded: " No. I do not." It was also his testimony that, after he fell, but on the same day as the fall, he noticed that the stepladder had " two deep gouges or cuts" on the " bottom rung."
Mr. King testified that after the fall he experienced pain in his left arm from his " wrist all the way to [his] shoulder," but he said that he " attempted to continue to finish [his work that] day." He added that he had never seen a stepladder " lashed" or " blocked" on the Persistence and that he had never observed a " spotter" being employed. According to his testimony, he was ultimately diagnosed with a " large rotator cuff tear" in his left shoulder. He further testified that he underwent two surgeries on his left shoulder to repair the rotator cuff. When asked at trial about his expenses, his testimony indicated that the cost of his mortgage and utilities was approximately $37 per day, while his expenses for food were approximately $15 per day. He acknowledged that defendant had made payments to him for " maintenance" and had also paid him what he characterized as an " advance," but he added that those payments stopped in February of 2008. The plaintiff contends that the maintenance payments should not have been halted because, as Dr. Gary Perlmutter testified at his deposition, plaintiff did not reach his " maximum medical end result" until March 9, 2010. Albert Sabello, a " vocational rehabilitation counselor," testified
at trial that, due to the injury to plaintiff's left arm, he would not be able to return to work as an offshore fisherman; he stated that the duties of a fisherman were " beyond [plaintiff's] physical ability for lifting, using manual motor coordination, [and] dexterity."
On cross-examination, plaintiff testified that, after he positioned the stepladder on the day of the accident, it was " as level as it could possibly be," but he acknowledged that the floor of the fish hold was " pretty rutted" and had a " tiny * * * bow." He further testified that, if one of the other individuals working on the Persistence that day saw something wrong with the placement of his stepladder, that person " should have said something" to him.
ii. The Testimony of Christopher Weisensee
Christopher Weisensee testified that he was a " [d]eckhand" working on the Persistence on the day that plaintiff fell. He further stated that the vessel was tied up at the dock on that day; and, when he was then asked if the vessel moved back and forth when tied to the dock, he responded: " Not noticeably usually." It was Mr. Weisensee's testimony that the captain made the decision as to who would go on each fishing trip; he stated that the captain " picks who he feels deserves to go." It was his further testimony that the composition of the crew was not the same from trip to trip.
Mr. Weisensee testified that he was working with plaintiff in the fish hold on the day of plaintiff's fall. He stated that he was about twenty feet away from plaintiff and that he saw him place the stepladder on a " slant" because the fish hold was not " completely straight in all areas." At trial, he claimed that he had not seen plaintiff climb the stepladder or fall from it; he explained that, although he had said in his deposition that plaintiff was on the second step of the stepladder when he fell, he had merely " assumed" that plaintiff was on the second step " based on how much time it took at the time." During cross-examination, he clarified the latter statement by testifying that " two or three" seconds elapsed between the moment when he " glanced" over and saw plaintiff setting up his stepladder and the eventual fall. According to Mr. Weisensee's testimony, plaintiff fell to his left.
Mr. Weisensee also stated that setting up the stepladder on a slant was " not smart." However, he explained that he did not say anything to plaintiff about the slanted stepladder--not because he did not " care," but rather because he did not know that plaintiff was going to " climb up and hurt himself." He then acknowledged that in his deposition he had stated:
" We're in harm's way all the time. Somebody's doing something stupid, they're just being stupid. I don't really care. It's not my problem. Go hurt yourself. I don't care. It's not my problem."
On cross-examination at trial, Mr. Weisensee testified that, when he saw plaintiff setting up the stepladder on a slant, he thought that plaintiff would use his own judgment and not climb a slanted stepladder.
iii. The Testimony of David Reposa
David Reposa testified that he was working on the Persistence as a " deckhand" on the day in question; he added that the vessel was " [t]ied to the dock." According to his testimony, Mr. Reposa was above plaintiff on the " mid-deck," about fifteen to twenty feet away from plaintiff at the time of the fall. His testimony indicated that he could see Mr. King through an open central hatch. He testified that he was painting, and he added
that there was " sufficient ventilation" so that there were not any " dangerous vapors." He further stated that the paint was not making his eyes " red and glossy." However, plaintiff's counsel confronted him with his deposition testimony, in which he had stated that the paint vapors were " kind of" making his eyes red and glossy. It was further his testimony that, when plaintiff fell, he was carrying " his paint brush and his container in his hands * * * ." He testified that plaintiff climbed to the third step and that the stepladder toppled to the right, while plaintiff fell to the left.
iv. The Testimony of Allan Feldman
Allan Feldman testified that he was an " emeritus professor" at Brown University, having worked in the Economics Department since 1971. He testified at trial with respect to plaintiff's economic loss. In his testimony he explained that he projected lost income for plaintiff as a fisherman at $54,500 per year for the four and a half years between plaintiff's injury and the trial. It was his further testimony that that resulted in his calculating the " total lost earnings over the period starting in the year 2006, the date of the accident, through the [date of the trial]" to be $254,166. He further testified that he calculated plaintiff's potential earnings " from the end of the current year until the end of [plaintiff's] work life expectancy" to be " $642,836."
v. The Testimony of Grant Parker
Grant Parker, a " sea captain" with thirty-five years of experience, who was qualified as an expert, testified that a stepladder was an " inherently unsafe" item to use on a vessel; he added that " a platform ladder" or " a vertical ladder" should have been used. He further indicated in his testimony that the specific stepladder used by plaintiff on the day of his fall should have been " taken out of service" (i.e., removed from the vessel) because there were " cuts in the bottom rung." In the course of his testimony, Captain Parker opined that every employee on a vessel has a responsibility to maintain a safe work environment; he stated that the " reasonable prudent seaman" is obligated to " alert [another seaman] that he's standing in harm's way and to remove the hazard or alert the seaman that he's then standing in harm's way and not allow that unsafe act to continue." He added that crew members should be instructed " about the safe working procedure." Finally, when asked whether or not he had " an opinion to a reasonable degree of certainty whether the fishing vessel Persistence was a reasonably safe place to work as it lay at the dock on May 31, 2006," he responded as follows: " I would have to say none [sic] due to the ladder condition and the disposition of the seaman not willing to stand and alert his fellow seaman that there's an unsafe condition."
Captain Parker acknowledged on cross-examination that a vessel tied to a dock, as the Persistence was when plaintiff fell, is very stable.
The Defendant's Witnesses
i. The Testimony of Glenn Goodwin
Glenn Goodwin testified that he was " a part owner and the captain of the fishing vessel Persistence; " he added that he was a captain full-time from 1986 to 1994 and thereafter continued to captain the vessel on a part-time basis. He testified that stepladders were used " all the time just to let us do overhead activities, wires being run and painting and all * * * ." When asked whether, " based on [his] experience as a captain on a fishing vessel and the fishing vessel Persistence for 25 years [he]
believe[d] that * * * a crewman on a vessel [who] would not come to the aid of a fellow crewman intentionally ha[d] a place on * * * [that] vessel," he responded in the negative. However, when asked if he were to see " someone in the process of setting up a ladder and [he] glanced over and while they were setting it up [he] saw it slanted, would you * * * warn them before * * * you knew they were getting on the ladder," he replied as follows: " When they were setting the ladder up I don't know if I would warn them at that point." Captain Goodwin added that he possibly would not do so because he " wouldn't be really convinced that that was where [the ladder] was going to be used."
ii. The Testimony of David Webb and JoAnn Greene
David Webb testified that he was working as a " deckhand" on the Persistence on May 31, 2006. It was his testimony that on that date the fish hold was " dry; " he added that he was working in the " forward section" of the fish hold on that day and was not " affected" by the paint fumes. He further stated that the vessel was " stationary." It was his further testimony that he had " [m]any times" used the same stepladder that Mr. King was using on May 31, 2006.
JoAnn Greene, a " bookkeeper" for defendant, testified that plaintiff went on " sixty-two and a half percent" of the Persistence's fishing trips from 2005 to 2006; she added that, in the over twenty years that she had worked for defendant, only one crewman (as contrasted with " captains or engineers" ) had worked beyond the age of fifty.
The Jury Instructions, Closing Arguments, and Verdict
In the course of instructing the jury with respect to the count for maintenance and cure (Count One), the trial justice stated:
" If Mr. King is entitled to maintenance and cure, then you should also award him unearned wages from the date of Mr. King's injury until the end of the period for which * * * Huntress agreed he would work, that is, when he was serving the ship."
After the jury instructions had been given, but before closing arguments, defense counsel raised an issue concerning the trial justice's instruction on unearned wages; at sidebar, he addressed the trial justice as follows:
" On the wages you mentioned that he's entitled to maintenance and cure and he's entitled to unearned wages. I'm afraid the jury is -- unearned wages and lost wages, unearned wages I think from [plaintiff counsel's] posture -- instructions relate to unearned wages for the trip in which Mr. King, if he was on a fishing trip, so there's no unearned wages."
The exchange at sidebar continued as follows:
" [The Court]: Well, this may be. I don't know what he's going to argue. He is entitled to unearned wages but unearned wages in this context is not lost wages which is what Dr. Perlmutter testified to which is unearned wages until the end of the trip, for instance, until the end of his expected employment. I believe that was the instruction I gave. Unearned is different from the other.
" [Defense Counsel]: Understood, I don't want that. I believe the jury may have been confused, unearned wages will be lost wages because he's not entitled to be employed, simply was not employed.
" * * *
" [Plaintiff Counsel]: Well, actually relative to medical costs the Court will give a new instruction, I think we agreed on that, relative to unearned wages.
" [The Court]: I'm inclined to do that already, instruct on unearned wages differentiating them from lost wages. The Court is inclined to overrule. Do you wish to be heard?
" [Plaintiff Counsel]: No, your Honor.
" [The Court]: Objection is overruled."
In spite of the trial justice's suggestion in the course of the just-quoted colloquy that he was going to instruct the jury with respect to the difference between lost wages and unearned wages, no such instruction was ever given, even though the trial justice did in fact give some supplemental instructions to the jury.
At the conclusion of closing arguments, defense counsel lodged an objection to that portion of plaintiff counsel's closing argument which dealt with the unearned wages issue. The following exchange took place:
" [Defense Counsel]: I think [plaintiff counsel] knows exactly what I'm going to mention, the fishing wages, the unearned wages during the fishing season is absolutely not the law of admiralty as applies to this case, and there was no fishing season. This is black letter law and this is why I mentioned before I would ask for a Court instruction that --
" [The Court]: On what? On what he said?
" [Defense Counsel]: That he's entitled to unearned wages to the following fishing season.
" [The Court]: That wasn't my instruction. Are you saying that's [plaintiff counsel's] instruction on the law? I told them not to listen to anybody but the Court on the law. How do you like that?
" [Defense Counsel]: I would say --
" [The Court]: The instructions.
" [Defense Counsel]: It's a factual issue. I'm very confident it was a factual issue.
" [The Court]: Well, if it was a factual issue it doesn't relate to the instructions at all. Anything else?
" [Defense Counsel]: No, that's it. Thanks." 
After the jury was sent to deliberate, in the course of discussing the jury instructions and interrogatories with counsel, the trial justice stated that " negligence does not carry with it prejudgment interest in most jurisdictions that I'm aware of. We're only talking about the computations of ...