DIANE SHAFFER, Individually, and as Executrix of the Estate of Edward Shaffer, Deceased Appellant
A.W. CHESTERTON CO., et al. Defendants And UNITED STATES STEEL CORPORATION Appellee
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 16CV190343
CHARLES P. STERN and GIBBS C. HENDERSON, Attorneys at Law,
P. GRUNDA, Attorney at Law, for Appellant.
I. MICHALS, MATTHEW M. MENDOZA, JENNIFER WHITT, and LINDSEY
E. SACHER, Attorneys at Law, for Appellee.
DECISION AND JOURNAL ENTRY
S. CALLAHAN PRESIDING JUDGE
Appellant, Diane Shaffer, individually and as the executrix
of the estate of Edward Shaffer, appeals from the judgment of
the Lorain County Common Pleas Court granting summary
judgment in favor of Appellee, United States Steel
Corporation, as to the federal claims. For the reasons set
forth below, this Court reverses.
Between 1960 and 1961, Mr. Shaffer served as a merchant
marine employed by the Pittsburgh Steamship Division of
United States Steel Corporation. Mr. Shaffer worked on
various vessels owned and operated by United States Steel
Corporation ("U.S. Steel") that sailed on the Great
Lakes. Mr. Shaffer mainly worked in the engine room and the
boiler room of the vessels. His job duties included, but were
not limited to, repairing, removing, replacing, and cleaning
up thermal insulation materials on pipes; removing and
replacing packing and gasket materials on steam wenches and
valves; and removing and cleaning cement off old bricks and
sealing the cleaned bricks in the boiler. Mr. Shaffer alleged
that he was exposed to asbestos while working on U.S.
Steel's ships. In 2016, Mr. Shaffer was diagnosed with
The Shaffers filed a complaint against twenty-three entities
alleging state claims of asbestos-related personal injury,
products liability, intentional tort, and loss of consortium.
The complaint also set forth federal claims under the Jones
Act and unseaworthiness under general maritime law against
only some of the parties. The complaint was amended three
times to add and remove parties and to modify the claims.
U.S. Steel filed a motion for summary judgment based upon the
third amended complaint addressing the federal claims. The
Shaffers filed a brief in opposition to U.S. Steel's
summary judgment motion, and U.S. Steel filed a reply brief.
After conducting an oral hearing, the trial court granted
summary judgment in favor of U.S. Steel on the federal
claims, but did not include Civ.R. 54(B) certification on the
order. Other parties and claims remained pending in the case.
The Shaffers filed a motion for reconsideration arguing that
the trial court improperly granted summary judgment on
grounds not argued by U.S. Steel and the trial court
incorrectly applied state law to federal claims. U.S. Steel
opposed the motion for reconsideration arguing that the
Shaffers had a meaningful opportunity to respond. The trial
court denied the motion for reconsideration.
Mr. Shaffer died on June 29, 2018, while the case was still
pending. Mrs. Shaffer was appointed as the executrix of Mr.
Shaffer's estate, and the complaint was amended a fourth
time to reflect the appropriate plaintiff, to remove
defendants, and to add a wrongful death claim.
Thereafter, Mrs. Shaffer requested, and the trial court
issued, an order adding Civ.R. 54(B) certification to the
judgment in favor of U.S. Steel as to the Shaffers'
federal claims. Mrs. Shaffer, on behalf of herself and Mr.
Shaffer's estate, has timely appealed, asserting three
assignments of error.
OF ERROR NO. 1
TRIAL COURT ERRED BY APPLYING OHIO STATE LAW, RATHER THAN
FEDERAL MARITIME LAW, TO [THE SHAFFERS'] JONES ACT AND
UNSEAWORTHINESS CLAIMS IN ASSESSING THE SUFFICIENCY OF [THE
SHAFFERS'] CAUSATION EVIDENCE.
In the first assignment of error, Mrs. Shaffer argues that
the trial court incorrectly concluded "that Ohio
substantive law * * * appl[ied] and that [the Ohio Supreme
Court's holding in] Schwartz [v. Honeywell Internal,
Inc., 153 Ohio St.3d 175, 2018-Ohio-474] is
controlling" as to the federal maritime claims of
unseaworthiness and the Jones Act. This Court agrees.
This Court reviews an order granting summary judgment de
novo. See Bonacorsi v. Wheeling & Lake Erie Ry
Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24,
citing Doe v. Shaffer, 90 Ohio St.3d 388, 390
(2000). When a trial court elects to reconsider its
interlocutory summary judgment ruling, this Court applies the
same standard of review that is applicable to review a
summary judgment decision. Carter v. Gerbec, 9th
Dist. Summit No. 27712, 2016-Ohio-4666, ¶ 39, quoting
Hull v. Astro Shapes, Inc., 7th Dist. Mahoning No.
10 MA 26, 2011-Ohio-1656, ¶ 28, quoting Klocinski v.
Am. States Ins. Co., 6th Dist. Lucas No. L-03-1353,
2004-Ohio-6657, ¶ 12. Accordingly, we apply a de novo
review to the trial court's reconsideration decision of
its grant of summary judgment. Carter at ¶ 39.
Summary judgment is proper under Civ.R. 56(C) when: (1) no
genuine issue as to any material fact exists; (2) the party
moving for summary judgment is entitled to judgment as a
matter of law; and (3) viewing the evidence most strongly in
favor of the nonmoving party, reasonable minds can only reach
one conclusion, and that conclusion is adverse to the
nonmoving party. Civ.R. 56(C); Temple v. Wean United,
Inc., 50 Ohio St.2d 317, 327 (1977).
Summary judgment consists of a burden-shifting framework. The
movant bears the initial burden of demonstrating the absence
of genuine issues of material fact concerning the essential
elements of the nonmoving party's case. Dresher v.
Burt, 75 Ohio St.3d 280, 292 (1996). Specifically, the
moving party must support the motion by pointing to some
evidence in the record of the type listed in Civ.R. 56(C).
Id. at 292-293. Once the moving party satisfies this
burden, the nonmoving party has a "reciprocal
burden" to "'set forth specific facts showing
that there is a genuine issue for trial.'"
Id. at 293, quoting Civ.R. 56(E).
Federal law permits a plaintiff to file a Jones Act claim and
an unseaworthiness claim in either state or federal court.
See 28 U.S.C. 1333(1); Garrett v.
Moore-McCormack Co., Inc., 317 U.S. 239, 245 (1942)
("[S]tate courts have concurrent jurisdiction with the
federal courts to try actions either under the Merchant
Marine Act or in personam[.]"); Powell v. Offshore
Navigation, Inc., 644 F.2d 1063, 1066 (5th Cir.1981)
(unseaworthiness is an in personam claim that may be filed in
state or federal court).
The Jones Act, which incorporates the Federal Employers'
Liability Act, supersedes all state laws as to the liability
for vessel owners for injuries to seamen and requires uniform
application of federal law. Lindgren v. United
States, 281 U.S. 38, 46-47 (1930). Thus, the United
States Supreme Court has "held that the Jones Act is to
have uniform application throughout the country unaffected by
'local views of common law rules.'"
Garrett at 244, quoting Panama RR. Co. v.
Johnson, 264 U.S. 375, 392 (1924).
Similarly, an unseaworthiness claim is governed by federal
maritime law as to all substantive matters, but applies state
law as to procedural matters. Lloyd v. Victory Carriers,
Inc., 402 Pa. 484, 486, 167 A.2d 689 (1960); Pope
& Talbot, Inc. v. Hawn, 346 U.S. 406, 409-410
(1953). See Jones v. Erie RR. Co., 106 Ohio St. 408,
412 (1922) ("The substantive law relates to rights and
duties which give rise to a cause of action.
'Procedure' is the machinery for carrying on the
suit."). However, the state procedural law will not be
applied if it interferes with the parties' substantive
rights. Lloyd at 486.
It has been recognized that state law may be applied to
federal maritime cases when there is no admiralty law on
point. Byrd v. Byrd, 657 F.2d 615, 617 (4th
Cir.1981). Also, state law may be used to supplement federal
maritime law, but only when there are no conflicts between
the two systems of law and the need for uniformity does not
bar the state action. See Pope & Talbot at
409-410; Powell, 644 F.2d at 1066, fn. 5; Am.
Dredging Co. v. Miller, 510 U.S. 443, 447 (1994).
Accordingly, "[w]hen a state court hears an admiralty
case, that court occupies essentially the same position
occupied by a federal court sitting in diversity: the state
court must apply substantive federal maritime law but follow
state procedure." Maritime Overseas Corp. v.
Ellis, 971 S.W.2d 402, 406 (Tex.1998) (Texas Supreme
Court applied federal law to Jones Act claim filed in state
court). See Brown v. L.A. Wells Constr. Co., 143
Ohio St. 580, 586 (1944) (Ohio Supreme Court held that it was
"bound to follow the decisions of the Supreme Court of
the United States with reference to [the] application and
construction" of a Jones Act claim filed in state
court.); Garrett, 317 U.S. at 240, 245 (Jones Act
claim filed in Pennsylvania state court required application
of federal substantive law). See also Kermarec v.
Compagnie Generale Transatlantie , 358 U.S. 625, 627-628
(1959) (recognizing admiralty law applies to unseaworthiness
and negligence claims filed in state court); Am. Dredging
Co. at 456 (state court must apply uniform federal laws
to Jones Act claims); Lloyd at 486 (recognizing an
unseaworthiness claim filed in Pennsylvania state court is
governed by federal maritime law as to substantive matters).
Thus, in this matter, the state trial court was bound to
apply substantive federal maritime law as to both the Jones
Act claim and the unseaworthiness claim.
U.S. Steel argues that the trial court's application of
the Schwartz substantial factor test" was
irrelevant because "the substantial factor test for
causation is appropriately applied in maritime cases."
U.S. Steel is essentially arguing that the Ohio law
supplemented and did not contradict the federal maritime law.
Based upon our analysis in assignments of error two and three
below, the Ohio law relied upon by the trial court did not
supplement, but instead contradicted the federal maritime
law. Accordingly, the trial court erred in granting summary
judgment by applying Ohio law to the Jones Act and
In the alternative, U.S. Steel asserts that Mrs. Shaffer is
precluded from asserting as error the trial court's
reliance upon Ohio law because the Shaffers invited the error
when they cited Ohio law in their brief opposing summary
judgment. "The invited-error doctrine is a well-settled
principle of law under which' [a] party will not be
permitted to take advantage of an error which he himself
invited or induced.'" (Alteration sic.) Wojcik
v. Pratt, 9th Dist. Summit No. 25609, 2011-Ohio-5012,
¶ 10, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford
Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20
(1986), paragraph one of the syllabus.
In response to U.S. Steel's request to exclude the expert
testimony of Dr. Maddox, the Shaffers cited a number of
federal court cases and one case from Ohio, Schwartz v.
Honeywell Internal, Inc., 8th Dist. Cuyahoga No. 103377,
2016-Ohio-3175. While the Shaffers cited an Ohio case, at no
point did the Shaffers argue to the trial court that Ohio law
governed as to this issue to the exclusion of federal law.
Rather, the Shaffers cited to this one Ohio case as
supplemental support to the federal law. As the Shaffers'
citation to one Ohio case did not advocate for the
application of Ohio law over federal law, they were not
"'"actively responsible" for the trial
court's error'" in applying state
law.See State v. Copeland, 9th Dist. Summit No. 27009,