Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Dec. 5, 1997.
Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding
Before: WRIGHT, REAVLEY, and KLEINFELD, Circuit Judges.
Honorable Thomas M. Reavley, Senior United States Circuit Judge for the United States Court of Appeals, Fifth Circuit, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Connor Ross claims that he broke his nose when he slipped and fell in a bathroom with a leaky toilet, while working on board the F/v Melanie He sued the vessel and vessel owner, alleging a cause of action under the Jones Act, 46 U.S.C. app. 698, and other causes of action. The district court granted a summary judgment in favor of defendants. We reverse.
Under modern summary judgment practice "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). However, "[t]he quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence, and even the slightest negligence is sufficient to sustain a finding of liability." Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir.1993).
Defendants claim that Ross was injured when he started a fist fight in a bar, and offered substantial evidence in support of this explanation of Ross's injury. However, Ross countered with evidence, which in our view, sufficiently raised issues of material fact as to the cause of his injury and whether defendants were negligent under the slight Jones Act standard. Prior to the court's ruling, Ross offered his sworn deposition testimony that the toilet had a bad seal and there was always water on the floor of the bathroom. He stated that this condition was well known to all on the boat, and that the floor of the bathroom was a smooth, waxed vinyl.
While there was evidence to the contrary, both participants in the fight, Ross and Kelly Long, testified that Long hit Ross one time in the jaw, not the nose. Again, this evidence was submitted to the district court prior to summary judgment ruling Defendants offered an expert opinion that "[o]n a more probable than not basis," Ross's injury was sustained in the fight rather than the alleged bathroom fall. We conclude, based on the evidence in the record, that a rational jury might find otherwise, thus making summary judgment inappropriate.
There remains the question whether Ross offered any evidence, prior to the summary judgment, that he did in fact slip and fall on the vessel, He had offered an affidavit to this effect, but as the district court noted in its order, the affidavit was unsigned. However, Ross did allege in his complaint that he was severely injured in the performance of his duties on board the vessel "when he was urinating into a leaky toilet and slipped on the water and fell on an adjacent counter, breaking his nose." The complaint asserts that defendants "failed to provide plaintiff with a safe place to work," and "failed to provide an adequate toilet for the crew." It also asserts that his injuries "were proximately caused by the unseaworthiness of defendant vessel." The complaint was verified, ending with a notarized jurat stating that "I am the plaintiff in the above-entitled case. I have read the foregoing Complaint and know the contents and believe them to be true." At least as to where Ross broke his nose, we can presume that allegations in the complaint are within his personal knowledge. A verified complaint may be used as an opposing affidavit if it sets forth specific facts and is based on personal knowledge. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir.1995); McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir.1987). Again, we conclude that the complaint, together with the other evidence discussed above, raised a material issue of fact as to whether the injury occurred on the vessel or during the fight.
REVERSED and REMANDED.