UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 99-60534 USDC No. 1:97-CV-259-BrR Summary Calendar _________________

CHARLES MORK,

Plaintiff-Appellee, versus

INGALLS SHIPBUILDING, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi

February 23, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Ingalls Shipbuilding, Inc. (“Ingalls”) appeals the district court’s denial of its motion for

judgment as a matter of law or for a new trial. Finding a legally sufficient evidentiary basis to support

the jury verdict, we affirm.

Plaintiff-appellee Charles Mork (“Mork”), an employee of Lockheed Martin, sued Ingalls for injuries he sustained while monitoring the delivery of eight Lockheed Martin VLS modules to Ingalls

pursuant to a Navy contract. Mork was struck by a gantry crane when he crossed the track in front

of the crane while it was transporting the eighth VLS module from a truck to the VLS stand. As a

result of the accident, Mork suffered injuries to his foot.

At trial, Ingalls moved for a judgment as a matter of law (“JML”) under Federal Rule of Civil

Procedure 50 both at the conclusion of Mork’s case and at the end of the jury trial. The jury

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. returned a verdict for the plaintiff, finding Mork 65% at fault and Ingalls 35% at fault. After the trial

court denied Ingalls’ JML motion and entered judgment in favor of Mork, Ingalls renewed its motion

for JML or, in the alternative, for a new trial. The district court denied that motion, finding that

sufficient evidence existed such that reasonable jurors could differ as to whether Ingalls had satisfied

its duty of reasonable care owed to Mork. On appeal, Ingalls only challenges the court’s denial of

judgment as a matter of law.

We review the denial of a motion for JML de novo, applying the same standard as the district

court. See Nichols v. Lewis Grocer,

(5th Cir. 1998). “A JML is appropriate if

the ‘facts and inferences point so strongly and overwhelmingly in favor of one party that a reasonable

jury could not have concluded’ as the jury did.” Reeves v. Sanderson Plumbing Products, Inc.,

(5th Cir. 1999) (internal citation omitted). Applying this standard here, we should

reverse the district court only if there is no sufficient evidentiary basis for finding that Ingalls breached

its duty of care to Mork. See

On appeal, Ingalls contends that the district court erred in denying its motion for JML because

the evidence demonstrated that Ingalls satisfied its duty to Mork to “make the work site reasonably

safe o r warn.” Under Mississippi law, a premises owner owes an invitee the duty to “keep the

premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or

peril that is not in plain and open view.” Little v. Bell,

(Miss. 1998). In Hoffman

v. Planters Gin Co., Inc.,

(Miss. 1978), however, the Mississippi Supreme Court

created an exception to the duty typically owed invitees: “[T]he premises owner is liable for injury

proximately caused by his affirmative or active negligence in the operation or control of a business

which subjects either licensee or invitee to unusual danger, or increases the hazard to him, when his

presence is known . . . .”

. Where the “Hoffman exception” applies, the standard of care

becomes that of ordinary and reasonable care. See

We agree with the district court that the facts of this case place it within the Hoffman

exception, and that the court was correct in submitting the issue of liability to the jury under that

-2- theory. See Saucier v. Biloxi Regional Med. Ctr.,

(Miss. 1998) (“To fall

within the Hoffman exception, there must be evidence that the landowner (1) was aware of the

licensee’s presence on the premises, and (2) engaged in affirmative or active negligence in the control

or operation of activities on the premises.”) It is uncontested that Ingalls was aware that Mork was

on the premises at the time of the accident. Additionally, an Ingalls employee—the gant y crane r

operator—was actively operating the crane at the time of the accident. See Davis v. Illinois Central

Railroad Co.,

(5th Cir. 1991) (concluding that metal blades that revolve on an

auger constitute active hazards while conditions upon the premises are passive hazards).1

Having determined that the Hoffman exception applies, the issue becomes whether Ingalls

satisfied its duty of ordinary and reasonable care. Reasonable care requires Ingalls to exercise “that

degree of care and prudence that a person of normal intelligence would exercise under the same or

similar circumstances.” See Tate v. Southern Jitney Jungle Co.,

(Miss. 1995)

(citing General Tire & Rubber co. v. Darnell,

(Miss. 1969). The question here

is whether Ingalls exercised reasonable care when moving the gantry crane down the tracks so as to

prevent injury to those on the premises.

Ingalls clearly did have safety equipment—including yellow lines around the crane tracks,

warning bells, and flashing lights—in place to warn workers of the movement of the gantry crane. The

testimony presented at trial also indicates that Ingalls had a policy of sending a rigger out both to

signal the gantry crane operator to start moving and to clear any employees off of the crane tracks.

However, while several employees testified that this equipment was functioning at the time of the

accident, others testified that they could not recall hearing warning bells or seeing flashing lights at

that time. More significantly, Mork’s fellow employee testified that no Ingalls rigger cleared workers

1 Ingalls’ argument that it did not subject Mork to “unusual danger or increased hazard” because Mork both had actual knowledge of and was warned about the danger of the crane, is without merit. Under Hoffman, the “premises owner is liable for injury proximately caused by his affirmative or active negligence in the operation or control of a business which subjects either licensee or invitee to unusual danger” See Hoffman,

. It is the negligence in operation or warning—not the mere existence of a potentially dangerous object—that subjects the licensee or invitee to unusual danger. See id.; see also Little,

.

-3- off of the tracks prior to the crane’s operat ion. Additionally, there was disputed testimony as to

whether the crane operator engaged the crane prior to receiving a signal from the rigger. Whether

or not the facts indicate negligence on the part of the crane operator or inadequate warnings were

questions for the jury. See Mississippi Power & Light Co. v. Lumpkin,

(Miss.

1998). The evidence presented provided a legally sufficient basis for a reasonable jury to find

that Ingalls did not satisfy its duty of care owed Mork.2 Accordingly, the judgment of the district

court is AFFIRMED.

2 Testimony that Mork (1) paused on the tracks to light a cigarette and (2) had actual knowledge through prior work experience of the dangers and operation of the crane does not negate Ingalls’ liability. See Mississippi Power & Light Co. v. Lumpkin,

(Miss. 1998) (finding the duty of the defendant to exercise reasonable care is not “obviated by the failure of the injured party or another to exercise such care unless it is determined by the factfinder that the latter’s conduct was the sole proximate cause of the injury”). As made clear by its apportionment of fault, the jury did not conclude that Mork’s actions were the sole proximate cause of his injury.

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