U.S. Fifth Circuit Defines "In The Course of Employment" for Jones Act Cases

By Philip C. Brickman

The U.S. Fifth Circuit Court of Appeals recently clarified the meaning of the phrase “acting in the course of employment” when considering whether an employer is liable for the negligent acts or omissions of its employee that causes injury to a co-employee in tort cases filed under the Jones Act.  In Beech v. Hercules Drilling Company, the Fifth Circuit dealt with an unfortunate situation onboard a jack-up drilling rig owned by Hercules Drilling Company (Hercules).  Keith Beech (Beech) was a crane operator working onboard the jack-up rig owned by Hercules.  Michael Cosenza (Cosenza) worked as a driller onboard the same rig.  Cosenza accidently brought a firearm onboard the rig, which was a violation of the Hercules policy prohibiting weapons on its rigs.  Both Cosenza and Beech were aware of the company policy against firearms.  Cosenza did not discover that he had brought the firearm until he found out one evening while doing his laundry.  Even though he discovered that he had the firearm, Cosenza did not report it and kept it hidden in his locker.  His failure to report that the firearm was onboard the rig was also a violation of company policy. 

One evening, Cosenza was assigned to work a night shift and was the only crewman on duty.  That night he was supposed to monitor the rig’s generator, check certain equipment and report any suspicious activity.  For these duties, Hercules encouraged him to stay in the break room, watching television and talking with fellow crewmembers. Cosenza could watch television and monitor the generator at the same time because if there were generator problems, the television would turn off. 

Beech was not on duty that evening, but was subject to being called to duty at any time.  Both men were watching television in the break room and also talking about firearms.  Cosenza then left the break room and went to his locker to retrieve his firearm because he thought that Beech might be interested in purchasing one. Upon returning Cosenza showed the firearm to Beech.  As Cosenza sat back down, his arm bumped a part of the couch, somehow causing the firearm to accidently discharge and kill Beech.

Beech’s wife filed a wrongful death action against Hercules under the Jones Act. After a bench trial in the Eastern District of Louisiana, the district court granted judgment in favor of Mrs. Beech for a substantial sum of money.  Hercules appealed, arguing that neither Beech nor Cosenza was acting in course of their employment at the time of the accident, therefore, the judgment in favor of Mrs. Beech must be reversed.

After addressing an issue regarding the appropriate standard of review on appeal, the Fifth Circuit then proceeded to the course of employment question.  The Court acknowledged that the basis for the Jones Act was to create a negligence cause of action for seamen against their employers.  The Court also noted that the Jones Act extends the protections of the Federal Employers Liability Act (FELA) to seaman and thus, FELA case law applies to Jones Act cases.  Further, the Jones Act should be liberally construed to accomplish its purposes to provide for the welfare of seaman. Despite the liberal construction of the Jones Act, the Fifth Circuit cited to the U.S. Supreme Court and noted that liberal construction does not mean that FELA or the Jones Act should be construed as workers compensation statutes, as neither statute makes the employer the insurer of safety of their employees on duty. The basis for liability under the Jones Act and FELA is negligence, not merely the fact that an injury occurred. 

Under the FELA and the Jones Act, an employer may vicariously be liable for its employee’s negligence under the doctrine of respondeat superior so long as the negligence occurred in the course of employment.  In Beech, the question the Fifth Circuit Court of Appeals addressed is the meaning of the phrase “in the course of employment” and specifically whether Cosenza and Beech were acting in the course of their employment when Cosenza accidently shot Beech. In order to hold an employer vicariously liable under the Jones Act for one employee’s injury caused by the negligence of a co-employee, a plaintiff must show that both employees were acting in the course of their employment at the time of the accident.  The district court also concluded that Cosenza was acting in the course of the employment because sitting down on the couch and watching television were part of his duties. The district court also concluded that Beech was acting in the course and scope of his employment because he was onboard the vessel and subject to the call of duty at the time he was shot.  Therefore, when the accidental shooting occurred while he and Beech were talking, both men were in the course and scope of their employment. On Appeal, Hercules argued that because Cosenza’s decision to show off the firearm did not further Hercules’ business interests, Hercules cannot be liable under the doctrine of respondeat superior. Because the negligent act was not related to his job duties, he was not acting in the course and scope of his employment at the time of the accident. More importantly, Hercules argued that if this particular factual scenario did not bring a seaman outside of the course and scope of his employment, no scenario could and the Jones Act would effectively place employers under a strict liability scheme.

For the course of employment issue, the Fifth Circuit primarily focused on two opinions, Stoot v. D&D Catering Serv., Inc. and Baker v. Baltimore & Ohio R.R. Co. In Stoot, a cook and another seaman onboard a vessel got into an argument that resulted in the cook slashing off several of the seaman’s fingers. The Fifth Circuit had previously held in Stoot that the employer was not liable for the cook’s actions because his tortuous conduct was not in furtherance of the employer’s business (i.e. cutting off a co-employee’s fingers). In Baker, one railroad worker accidentally shot a co-worker when a pistol fell out of the worker’s pocket. The Sixth Circuit held the employer liable because the course of employment includes not only actual service, but also those things necessarily incident thereto.

In Beech, the Fifth Circuit ultimately held that the test for whether a Jones Act employee was acting within the course and scope of his employment is whether his actions at the time of the injury were in furtherance of his employer’s business interests. Further, whether the underlying tortious conduct was negligent or intentional does not affect the applicable test. Therefore, Cosenza was not acting within the course and scope of his employment when he accidentally shot Beech.  In fact, Cosenza was had violated two Hercules company policies with respect to having firearms onboard vessels.  While it is true that not every violation of a safety policy automatically casts an employee outside of the course of employment that does not mean that no violation of safety policy could ever take an employee out of the course and scope of his employment.  The safety policy violation in this case is not dispositive of the course and scope of employment issue, but it is relevant because it gives some guidance regarding how one employee’s conduct furthers the companies business interests.

Here, Cosenza left the break room to retrieve a loaded firearm when he was supposed to be monitoring the generator and watching suspicious behavior.  His own suspicious behavior took him outside of the course and scope of his own employment.  The Court also noted that if Cosenza’s behavior with regard to the firearm did not take him out of the course and scope of employment, it is unclear as to what could have done that.  The Fifth Circuit therefore avoided the situation where a claim for negligence under the Jones Act was treated as strict liability.  The Court again noted that neither the Jones Act, nor FELA makes an employer the insurer of the safety of its employees while they are on duty, but rather only for negligent acts and/or omissions. The Fifth Circuit held that Cosenza was outside the course of his employment at the time of the accident and reversed the district court’s judgment in favor of Beech and rendered judgment in favor of Hercules. 

In this case, the Fifth Circuit clearly sets out the definition of how a Jones Act seaman is considered within in the course his employment in order to recover from his employer for injuries caused by a co-worker’s negligence.  Both parties must have been involved in an activity where they were undertaking some action in furtherance of the employer’s business interests.  It does not matter as to whether the conduct was intentional or unintentional.  The Fifth Circuit also rejected the broader argument that things incidental to an employee’s job duties is also within the course of employment. In other words, an employee cannot be liable for the negligence of its employee where the employee acts entirely of his own impulse, for his own amusement, and for no purpose of or benefit to the employer. In Beech, the Fifth Circuit narrowed the definition of course of employment for injuries that occurred on the job as a result of the negligence of co-workers under the Jones Act, thereby avoiding situations that could lead to the Jones Act being utilized as a workers compensation statute using a strict liability theory of recovery.

Please contact Phil Brickman at 504-523-2600 or pbrickman@frvf-law.com for further details on the issue raised in this article.  

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.