When is the Employer Responsible for Actions of the Employee?

Last month the Fifth Circuit Court of Appeals rendered its decision in Beech v. Hercules Drilling Company and reversed the ruling of the District Court which had held Hercules responsible for the negligent act of its employee which had resulted in the death of a co-worker.

Keith Beech (“Beech”) was a crane operator working aboard a jack-up drilling rig that his employer, Hercules, owned.  Michael Cosenza (Cosenza”) worked as a driller aboard the same vessel.  When Cosenza came aboard, he accidentally brought a firearm with him, which violated Hercules’ policy prohibiting weapons on the vessel.  Cosenza and Beech were both aware of Hercules’ policy against firearms.  After discovering the firearm in some of his laundry, Cosenza did not tell anyone that he had inadvertently brought it aboard.  Instead, he kept it hidden in his locker on the rig.  This failure to report the firearm constituted an additional violation of Hercules’ safety policy.

Cosenza was assigned to work a night shift and was the only crewman on duty.  Cosenza’s duties that night were to monitor the rig’s generator, to check certain equipment, and to report any suspicious activity or problems.  Hercules encouraged Cosenza to stay in the break room while he performed these duties, watching television and commiserating with fellow crew members.  Cosenza could simultaneously watch television and monitor the generator because if something were to go wrong with the generator, the television would turn off.

Beech was not on duty, but was aboard the vessel and subject to the call of duty.  Both men were in the rig’s television room watching television and chatting.  Beech mentioned that he was thinking about purchasing a small firearm, and Cosenza, thinking Beech might be interested in seeing his firearm, left the break room and went to his locker to retrieve it.  Upon returning, Cosenza showed the firearm to Beech, who inspected it but did not handle it.   As Cosenza sat back down in the TV room his arm bumped a part of the couch, and the firearm accidentally discharged, mortally wounding Beech.

Mrs. Beech subsequently brought a wrongful death action against Hercules under the Jones Act.  After a bench trial, the district court granted judgment in favor of Mrs. Beech, individually, in the amount of $876,997.00 and as tutrix, guardian of her minor child, in the amount of $317,332.00, for a total recovery of $1,194,329.00.  Hercules argued on appeal that Beech and Cosenza were not acting in the course of their employment at the time of the accident and that the district court’s judgment in favor of Mrs. Beech must, for that reason, be reversed.

Beech had sued Hercules under the Jones Act which allows seamen injured in the course of their employment to sue their employer for its negligent acts that cause the injury.  Because seamen historically are considered “wards of the court,” the Jones Act was written so as to provide for the welfare of seamen.  The Act has resulted in broader employer liability than would have been possible under the common law or state law, meaning that while the employer is not the insurer of the safety of the seaman, the slightest negligence on the part of the employer is sufficient for a finding of liability on its part.

One of the principals of law that applies in the Jones Act is that an employer may be vicariously liable for its employee’s negligence under the doctrine of respondeat superior, so long as the negligence occurred in the course of employment.  To succeed, the injured employee must show that both he and the employee who caused the harm were acting in the course of their employment at the time of the accident.  Here, the district court concluded that Beech was acting in the course and scope of his employment because he was aboard the vessel and subject to the call of duty at the time he was shot.  Hercules argued on appeal that because Cosenza’s decision to show off his firearm did not further Hercules’ business interests, and because it was in no way related to his job duties, he was not acting within the course and scope of his employment at the time of the accident.

After analyzing prior decisions from federal courts across the country, the Fifth Circuit held that regardless of whether the underlying injurious conduct was negligent or intentional, 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 the furtherance of his employer’s business interests.

Applying this standard, the court found that when Cosenza left the break room to retrieve a loaded firearm when he was supposed to be monitoring the generator and watching out for suspicious behavior took him outside the course and scope of his employment.  The court observed that Cosenza’s conduct was clearly contrary to Hercules’ business interests, thus exculpating Hercules of responsibility and that to hold otherwise would impose strict liability upon Jones Act employers.

Will Bland
As a Member at Mouledoux, Bland, Legrand & Brackett, Will Bland regularly represents the interests of vessel operators, both brown water and offshore, oilfield operators, and their insurers in matters involving personal injury, collisions, sinkings, products liability, toxic torts, and contractual disputes. His practice areas include maritime personal injury defense, maritime collision and property damage insurance coverage, contractual indemnity, longshore matters and general litigation. Will can be contacted at (504) 595-3000 or via e-mail at wbland@mblb.com.
Will Bland