A plaintiff may not be found negligent simply because the plaintiff, upon the request or direction of the defendant, worked at a dangerous job, or in a dangerous place, or under dangerous conditions.
Comments to Jury Instructions
Use this instruction only where the plaintiff's compliance with an employer's request or direction is an issue. Under the "primary duty" doctrine, "a seaman‑employee may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment." California Home Brands, Inc. v. Ferreira, 871 F.2d 830, 836 (9th Cir.1989).
The primary duty rule is not applicable "where a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated." See Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 907 (9th Cir.1994).
A seaman who follows a supervisor's urgent call to the crew for help cannot be found contributorily negligent. Simenoff v. Hiner, 249 F.3d 883, 890-91 (9th Cir.2001).
BS&J NOTE: There is no assumption of risk under the Jones Act or General Maritime law, and such an instruction should always be requested.
