Callbreath
Callbreath v. United States
Opinion
Lead Opinion
MEMORANDUM *
Edwin Callbreath was a crew member aboard the Cape Intrepid, a government-owned ship docked in Tacoma, Washington, at a port facility adjacent to railroad tracks. Upon returning from a personal errand and a night out, Callbreath attempted to cross the tracks to gain access to the ship and was severely injured. Callbreath sued the government, as ship owner, for negligence under the Jones Act, 46 U.S.C. app. § 688(a), as well as for maintenance and cure. The district court granted the government’s motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part and reverse in part.
The Jones Act grants seamen acting in the course of their employment a claim for personal injury caused by employer negligence. 46 U.S.C. app. § 688(a). The district court granted summary judgment to the government on the ground that Callbreath was not within the scope of his employment when the accident occurred. We disagree. Callbreath adduced evidence that he and other crew members regularly accessed the port facility by crossing the adjacent railroad tracks at a point opposite the ship and that his employer knew or should have known of the use of that…
Dissenting Opinion
Rawlinson, J.
Dissenting.
I respectfully dissent.
Edwin Callbreath was en route to his ship with a female companion when he was injured. It was late evening, and Call-breath was not returning for work purposes. Rather than accessing the ship from the designated entrance, Callbreath elected to cross a railyard by crawling under a train. Unfortunately, the train began to move while Callbreath was underneath.
The majority concludes that Callbreath’s employer “knew or should have known” that crew members regularly used the rail-yard shortcut. From that conclusion, the majority leaps to its holding that a material issue of fact exists regarding whether Callbreath was acting within the scope of his employment. The majority cites the cases of Bountiful Brick Co. v. Giles, 276 U.S. 154, 158-59 , 48 S.Ct. 221 , 72 L.Ed. 507 (1928) and Marceau v. Great Lakes Transit Corp., 146 F.2d 416, 418 (2nd Cir.1945) in support of its holding. However, those cases are easily distinguished. In Bountiful Brick, the employee was found to be in the scope of employment because he was injured while traversing “the only way of access” to his employment. See Bountiful Brick, 276 U.S. at 159 .