Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
BRENDA MATTHEWS
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 961140 February 28, 1997
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF TRANSPORTATION
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
This is an action for personal injuries suffered by a
passenger who slipped and fell while aboard a ferryboat sailing
in navigable waters. The sole question we consider is whether
the trial court erred in ruling that the action is not a maritime
tort to be decided under federal admiralty law.
Just before dawn on December 2, 1993, plaintiff Brenda
Bullock, now Brenda Matthews, drove her motor vehicle aboard the
state-owned ferryboat Williamsburg while it was docked in the
navigable waters of the James River at Jamestown. She boarded to
take breakfast to her boyfriend, the ferryboat's captain.
As the ferryboat neared completion of the 2.2-mile, 17-
minute trip across the James to the dock at Scotland in Surry
County, the plaintiff was injured. She slipped and fell as she
was walking across the boat's deck returning to her vehicle from
her visit with the captain.
Subsequently, she filed a motion for judgment against
defendant Commonwealth of Virginia, Department of Transportation,
seeking recovery in damages. She alleged that she was a paying
passenger aboard the defendant's vessel and that she was injured
as the result of the defendant's employees' negligence in failing
"to keep the deck of the ferry safe for passengers to walk upon."
Responding, the defendant denied the allegations of negligence,
and asserted the plaintiff was guilty of contributory negligence
and assumption of the risk.
At the beginning of a March 1996 jury trial, the plaintiff
asked the trial court to rule that the case would be tried "under
the rules of comparative rather than contributory negligence
under maritime law." The Attorney General, on behalf of the
defendant, took the position that "the rules of admiralty do not
apply to this case" because it "is a garden variety slip-and-fall
case that could have happened as well on land as on sea." After
argument of the motion, the court denied it, ruling that the
court would "follow the regular tort law," not admiralty law.
The trial progressed. The plaintiff sought to establish
that she slipped on residue of a lubricant, which had been
tracked across the boat's steel deck. The evidence showed that
the substance was used by the crew to lubricate the boat's safety
gates installed at each end of the vessel. The defendant
presented evidence that its employees were not negligent and that
the plaintiff did not know what caused her fall.
Among the issues presented to the jury in the court's
instructions were primary and contributory negligence. The jury
found in favor of the defendant, and the court entered judgment
on the verdict. The plaintiff appeals.
The following assignment of error raises the dispositive
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appellate issue: "The trial court erred in applying the doctrine
of contributory negligence to an admiralty case."
The standards of maritime law provide that contributory
negligence is to be considered only in mitigation of damages in a
tort action. Kermarec v. Compagnie Generale Transatlantique, 358
U.S. 625, 629 (1959). Thus, we must decide whether the rights
and liabilities arising from the conduct of which the plaintiff
complains are within the full reach of admiralty jurisdiction and
measurable by the standards of maritime law, or whether the
substantive law of the Commonwealth recognizing contributory
negligence as a complete bar to recovery controls.
To support a cause of action for a maritime tort that falls
within admiralty jurisdiction, a party "must satisfy conditions
both of location and of connection with maritime activity."
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, ___, 115
S.Ct. 1043, 1048 (1995). The alleged negligence must occur on
navigable water and the wrong must bear a significant
relationship to traditional maritime activity. Mizenko v.
Electric Motor and Contracting Co., 244 Va. 152, 156, 419 S.E.2d
637, 640 (1992) (citing East River Steamship Corp. v.
Transamerica Delaval Inc., 476 U.S. 858, 863-64 (1986)).
In the present case, the Attorney General agrees that
defendant's alleged tortious conduct took place on navigable
water, that is, the locus requirement has been satisfied. The
Attorney General contends, however, that the conduct did not bear
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a substantial relationship to traditional maritime activity, that
is, the nexus requirement has not been met.
In order to decide whether an activity has a significant
relationship to a traditional maritime activity, the court should
"determine the potential impact of a given type of incident by
examining its general character." Sisson v. Ruby, 497 U.S. 358,
363 (1990). Accord Mizenko, 244 Va. at 156, 419 S.E.2d at 640.
The jurisdictional inquiry does not turn on the actual effects on
maritime commerce of the particular facts of the incident.
"Rather, a court must assess the general features of the type of
incident involved to determine whether such an incident is likely
to disrupt commercial activity." Sisson, 497 U.S. at 363. The
inquiry should be "whether a tortfeasor's activity, commercial or
noncommercial, on navigable waters is so closely related to
activity traditionally subject to admiralty law that the reasons
for applying special admiralty rules would apply in the case at
hand." Grubart, 513 U.S. at ___, 115 S.Ct. at 1051. See Price
v. Price, 929 F.2d 131, 135-36 (4th Cir. 1991).
Parenthetically, we note that the Attorney General relies on
a four-factor nexus test articulated in Kelly v. Smith, 485 F.2d
520, 525 (5th Cir. 1973). The Supreme Court in Sisson expressly
declined to adopt the Kelly test, 497 U.S. at 366 n.4, and we do
not apply it here.
The general activity that is the basis of the plaintiff's
claim involves maintenance of the vessel's deck and of the safety
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gates on either end of the ferryboat. The plaintiff's evidence
tended to show that the substance utilized to lubricate the
safety gates collected in puddles on the steel deck and that
vehicle tires tracked the lubricant across the deck causing the
hazard that injured her.
We are of opinion that, "given the broad perspective
demanded" by the nexus test, Sisson, 497 U.S. at 367, maintaining
a vessel's equipment and its deck under these circumstances is
substantially related to traditional maritime activity. Indeed,
Sisson expressly holds that "storage and maintenance of a vessel
at a marina on navigable waters" meets the test. Id.
Manifestly, failure to so maintain a vessel properly at the dock
or underway is likely to disrupt the commercial activity central
to the maritime purpose of a ferryboat, that is, transporting
paying passengers safely across navigable water to their
destination.
Consequently, we hold that the trial court erred in
instructing the jury on contributory negligence and in refusing
to allow the case to proceed under the general maritime law of
negligence. Thus, the judgment in favor of the defendant will be
reversed and the case will be remanded for further proceedings
consistent with this opinion.
Reversed and remanded.
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