Summary
In Moore, the plaintiff injured his hand in the course of his regular duties aboard a vessel when he used a cathead to pull a net from the water and his left hand was pulled into the winch drum.
Summary of this case from Thomas v. Nelson Marine Service, Inc.Opinion
No. 99-804-CB-M
February 21, 2001
ORDER
This matter comes before this Court on Defendant's "Motion For Partial Summary Judgment" (Doc. 18), Plaintiff's "Opposition To Motion For Summary Judgment" (Doc. 21), and "Defendant's Reply To Plaintiff's Opposition To Motion For Summary Judgment" (Doc. 22).
With a remaining separate claim for maintenance and cure. (Doc. 1).
I. Background
On September 2, 1999, Plaintiff, Larry Moore, filed a Complaint against Defendant, Iron Will, Inc., alleging negligence and unseaworthiness under the Jones Act, 46 U.S.C. § 688 et seq., and/or general maritime law, for an injury he incurred on May 13, 1999, while on board the F/V EUNICE LEMAY. Defendant contends that "there is no dispute as to any material fact and it is entitled to judgment as a matter of law under the Jones Act and the general maritime law because neither the alleged negligence of [the Defendant] . . . nor the alleged unseaworthy condition of the F/V EUNICE LEMAY was a legal cause of Plaintiff's injury." (Doc. 18). In contrast, the Plaintiff claims however, that "there are material facts and undiscovered facts that make summary judgment both premature and inappropriate" and that there are genuine issues of fact based on the Affidavit of Larry Moore. (Doc. 21). Defendants counter that their motion for summary judgment is not premature, and that the Plaintiff's response shows he has failed to meet his burden of showing that there is a genuine issue for trial. (Doc. 22). This Court agrees and finds as follows.B. Findings of Fact
In April of 1999, the Plaintiff was employed as a deckhand by the Defendant. On May 13, 1999, the Plaintiff was assigned to, and was working on, the Defendant's shrimp trawler F/V EUNICE LEMAY. While the vessel was in navigation, engaged in shrimping operations in the navigable waters of the Gulf of Mexico, and while the Plaintiff was performing or attempting to perform his assigned chores, he suffered injuries to his left hand. Specifically, Plaintiff's left hand was injured when, in the course of his normal duties, he used the cathead to pull a net from the water, and his hand was pulled into the winch drum.
Defendant owned, operated, and controlled this vessel in navigation and employed Plaintiff and assigned him to serve as a seaman and member of the crew of that vessel for which he earned wages of approximately $3,000 per month. (Doc. 1 at 1). The vessel's crew consisted of the Captain and owner William Sessions, III, ("Sessions") and deckhand Jobie Nelson and George Malone.
Plaintiff was an experienced deckhand and had worked with winches and used catheads to pull in nets many times before being hired to serve on this vessel — it was something he did "all the time" on his previous jobs. See Plaintiff's Dep. at 47. In addition to this prior experience, during the three weeks the Plaintiff worked on the vessel in question before the accident, he had used the cathead to lift nets out of the water (the same job he was performing when he was injured) "approximately every six hours." Id. at 50.
The winch on the vessel has two catheads which are additional drums mounted to the rear of the primary drums of the winch. The catheads do not have cables or ropes wrapped on them unless they are being used — when turned on, the cathead rotates and a rope (here attached to a net) is wrapped by a crew member onto the cathead to enable the crew to use the pulling power of the winch when lifting a net.
At the time of the accident, the Plaintiff was taking "wraps" (turns of a rope) off of the cathead and he had turned on the cathead to lift the nets and the rope started "backlashing" (winding back on the cathead).Id. at 53. Because of this, the Plaintiff started taking wraps off — you "just take the rope and lift it off" Id. at 51. This was a task the Plaintiff performed regularly, as backlashing and taking wraps off the cathead as a response was a common occurrence. Id. at 53. Plaintiff does not know how his left hand became caught in the feed line to the cathead. Id. at 54. About five second elapsed from when his left hand started getting pulled into the feed line to when his injury occurred and that he cannot remember what he did with his right hand at that time. Id. at 65. Plaintiff "more or less blacked out" and when his left hand was being pulled, he only remembers yelling out for help. Id. at 65-67. Indeed, Plaintiff does not claim that any equipment on the vessel was broken or that any member of the crew did anything to cause his injury. Id. at 62-63.
II. Discussion A. Summary Judgment Standard of Review Pursuant to FEDERAL RULE OF CIVIL PROCEDURE 56(c), summary judgment shall be granted:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
A factual dispute is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing [substantive] law" Id; accord, Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992), cert. denied, 507 U.S. 911 (1993).
The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial." See Clark v. Coats Clark. Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its burden, the burden shifts to the non-movant to "come forward with specific facts showing that there is a genuine issue for trial" Id; and, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted). "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party. See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as whole." See Tipton, 965 F.2d at 998. "[T]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 999; Anderson, 477 U.S. at 255; and, Matsushita, 475 U.S. at 587.
If the non-moving party fails to make "a sufficient showing on an essential element of its case with respect to which she has the burden of proof," the moving party is entitled to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." See Matsushita, 475 U.S. at 587 (quotation marks and citation omitted). The function of the court is not to "weigh the evidence and determine the truth of the matter but to determine whether there is an issue for trial." See Anderson, 477 U.S. at 249. Thus, because the non-movant bears the "burden of coming forward with sufficient evidence on each element that must be proved[,]" if "a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case[,]" RULE 56(c) mandates that summary judgment be entered against the non-movant. See Early v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990) (emphasis in original) (citation omitted); and, Celotex, 477 U.S. at 322.
B. Application
At the outset, Plaintiff's argument that this motion for partial summary judgment is "premature," is without merit. A summary judgment determination is appropriate at this time, in accordance with the RULE 16(b) scheduling deadlines which set forth the timeframe of a case and with which the Defendant has complied, as motions for summary judgment were due to be filed no later than August 9, 2000. Here, Defendant filed the timely motion for partial summary judgment on August 9, 2000. Additionally, if Plaintiff truly desired additional depositions or other information to support his claims, he should have taken the necessary steps to obtain such materials within the RULE 16(b) discovery schedule.
Plaintiff acknowledges that there is no evidence currently in the record on how to design and place the control handle where it is more accessible to the person operating the cathead winch; however, the Plaintiff contends that two crew members' depositions have not been taken and the Plaintiff has not visited the vessel in question with a mechanical engineer and/or naval expert. (Doc. 21 at 2). However, this Court does not find persuasive the Plaintiff's promise of undiscovered facts and possible reports from unnamed and unidentified experts and future depositions of crewman which do not create a triable fact issue and are not before this Court on this summary judgment determination. If Plaintiff so intended to obtain information from these sources, he should have done so before this time.
Moreover, as to Plaintiff's claims for negligence under the Jones Act and general maritime law of unseaworthiness, for the failure of the Defendant to provide him with a reasonably accessible means to turn off a winch, this Court finds as follows. Specifically, Plaintiff's first claim is for negligence under the Jones Act, which provides a remedy to a seaman who suffers personal injuries in the course of his employment if the evidence shows that he personal injuries incurred were proximately caused by the negligence of his employer. See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 334 (5th Cir. 1997). The duty of care owed by the employer under the Jones Act is one of ordinary prudence under the reasonable person standard. Id. However, a seaman is also obligated to act with ordinary prudence under the circumstances (including the Plaintiff's own experience, training, and education) and to act as a reasonable seaman under like-circumstances to protect himself. Id. at 339. Here, Plaintiff is due no recovery under the Jones Act because the Defendant was not negligent and a seaman cannot recover for injury resulting solely from his own act of negligence. See Holmes v. Mississippi Shipping Co., 301 F.2d 474 (5th Cir. 1962). Notably, Plaintiff's hand was injured through his own fault and not because of any negligence of the vessel or the crew.
Negligence is the failure to use reasonable care or that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing to do something that are reasonably careful person would do under like circumstances.
Plaintiff has repeatedly stated that he assigns absolutely no fault to any member of the crew. Indeed, Plaintiff testified that he could have taken wraps off the cathead without putting his left hand near the feed line and that he was using only his right hand to take the wraps off.See Plaintiff's Dep. at 61-62 and 64. Additionally, Plaintiff testified that he could have turned the cathead off before taking the wraps off, and, that if he had done that, he would not have been injured. Id. at 56, 99.
Additionally, all the vessel's equipment was functioning properly and the Defendant did not have a duty to foresee his injury or a duty to devise/install a switch he could have used to turn off the cathead. Defendant was not required to furnish the Plaintiff with a place to work which was absolutely safe because the Defendant's duty was only to exercise reasonable and ordinary care to provide a reasonably safe place for the Plaintiff to perform the work he was performing at the time of the accident. See Reynolds v. Atlantic Coast Line R.R., 36 So.2d 102,aff'd 336 U.S. 207 (1949); Toledo Sty. L. W.R. Co. v. Allen, 276 U.S. 165, 169 (1928); and, Brady v. Southern Ry., 320 U.S. 476 (1943). However, Plaintiff claims that the Defendant was negligent and that the vessel in question was unseaworthy because it did not provide a "reasonably accessible" means of shutting off the winch. (Doc. 19 at 6). This is the only alleged fault the Plaintiff assigns to the Defendant. Id. Despite this claim, Plaintiff himself also testified that he had never seen anyone become caught in a cathead the way he was and Captain Sessions testified that such an accident had not ever happened on the vessel and that he was not aware of any person ever being injured as the Plaintiff had in all the time he has been familiar with the vessel. See Plaintiff's Dep. at 96; and, Sessions' Dep. at 13-16, 25, 39-40, 50. In light of these facts, there exists no evidence whatsoever that a reasonably careful person would have devised and installed this switch referred to by the Plaintiff — indeed there exists no evidence at all that the Plaintiff's situation was reasonably foreseeable or that such a switch is even feasible, available, or would have made any difference in these circumstances.
In support of his claim, Plaintiff testified that he believes that a reasonably accessible means would be to have a foot switch or some other switch to turn off the winch but that he has never seen such a switch and no one has ever told him of such a switch being on any commercial shrimping vessel. See Plaintiff's's Dep. at 72-73, 97, 99.
Captain Sessions testified that he does not know of, nor has he ever seen any way to place the control handle (handle that turns the catheads on and off (known as the "PTO" valve)) where it is in a more accessible position to the operator. See Sessions Dep. at 37-38.
Indeed, the evidence in the record suggests the contrary. First, Plaintiff testified he had never seen anyone injured in the way he was and that he had never even heard of a switch like the one he suggests, being used on a commercial shrimping vessel. Second, there exists no evidence that shows that the Defendant had a duty to devise and install such a switch. Third, there is no evidence in the record that shows any other shrimp trawler in the world has such a switch.
Moreover, Defendant provided the Plaintiff with a reasonably safe place to work as evidence by the fact that Plaintiff had done the same job with the same equipment "every six hours," for three weeks without incident, and because no similar accident had ever occurred on the vessel. Additionally, before the accident, the Plaintiff knew he could get his left hand caught in the cathead if he got his hand too close because this was an open and obvious danger of which he was well aware based on his years of experience as a deckhand and three weeks work on this particular vessel performing this very task. Plaintiff's claim that lack of access to the control handle by the cathead user presents an unreasonably safe workplace to the user fails when viewed in light of the facts and the Plaintiff's experience which reveals that he knew of the danger. As such, this Court finds Plaintiff's contentions unpersuasive.
Plaintiff testified that before the accident, he knew there was a danger that his hand could get caught in the cathead if he got his hand too close. See Plaintiff's Dep. at 99-100. See e.g., Main v. Myers, 665 F.2d 57 (4th Cir. 1981).
Plaintiff argues the control handle, a piece of vessel equipment, did not permit the Plaintiff to use an unguarded winch in reasonable safety and that only a control handle that is accessible to someone who is being pulled into the winch provides the reasonable safety required by the Jones Act.
Further, Plaintiff's unseaworthiness claim also fails for similar reasons. Plaintiff argues a Jones Act employer has a duty to provide a vessel and her appurtenances reasonably fit for their intended purpose and this non-delegable duty to provide a seaworthy vessel is not conditioned on notice or negligence — whether the owner knew or should have known does not effect the determination of liability under this standard because the vessel owners' duties are not conditioned on notice or fault. Id. (citing Clay v. Warrior Gulf Navigation Co., 842 F.2d 1250 (11th Cir. 1988); and, Deakle v. John E. Graham Sons, 756 F.2d 821 (11th Cir. 1985), reh'g denied, (en banc), 763 F.2d 419 (11th Cir. 1985)). Plaintiff contends that whether Sessions or the Plaintiff ever saw or heard of an injury of this type or whether Sessions ever saw any alternative manner to place the control handle where it is in a more accessible position to the operator are irrelevant to the unseaworthiness inquiry. (Doc. 21 at 3). Plaintiff's state the question instead is was the control handle reasonably designed and positioned to permit a user of the cathead winch who found himself in peril to access and use the handle to stop the winch. Id. at 3-4. Plaintiff is incorrect.
Additionally, Plaintiff also erroneously contends the Defendant was negligent because Captain Sessions failed to train him to use the cathead and/or warn him of the danger associated with the "unguarded" cathead. Id. at 6. However, this assertion has little merit because the Plaintiff was an experienced deckhand who was admittedly trained in the use of the cathead as well as aware of its danger. See Plaintiff's Dep. at 47, 99-100. This was an open and obvious danger of which the Plaintiff was filly aware and Defendant had no duty to wam the Plaintiff about. See e.g., Mann v. Myers, 665 F.2d 57 (4th Cir. 1981). Further, the Plaintiff was well trained in the use of a cathead before being hired by the Defendant and he had a great deal of on-the-job training with the winch/cathead in question during the three weeks before the accident.See Plaintiff's Dep. at 50. As such, there is no evidence that the Plaintiff was not properly trained or warned and the affirmative evidence shows the contrary.
Notably, Plaintiff's testimony makes clear that the vessel, including her winch, were reasonably fit for its intended purpose and that the crew of the vessel were reasonably competent and adequate. The vessel's equipment was in good working order. Plaintiff performed the same job he was doing when injured, without incident, numerous times before the accident with the same equipment in the same condition. A vessel is not required to have the best of appliances and equipment, but only such gear as is reasonably proper and suitable for its intended use. The vessel in question did have such gear. Additionally, a vessel is not unseaworthy and a seaman cannot recover against it or its owner for injuries sustained, if that person's injuries are caused solely by his own negligence. See Holmes, 301 F.2d 474. Here, Plaintiff is solely responsible for his own injuries for the same reasons stated herein as to the Plaintiff's negligence claim.
Plaintiff testified that the winch and cathead were no different at the time of the accident that it was during these times he used it to do the same job during the three weeks prior to the accident. See Plaintiff's Dep. at 50. Plaintiff also testified that the winch was not broken and it was functioning properly when his accident occurred. Id. at 51.
Plaintiff unpersuasively argues that the testimony from Sessions and the Plaintiff that they had never seen an alternative means to shut off the winch, alone, does not mean that an alternative was neither available nor feasible. (Doc. 21 at 1). Plaintiff claims also that Sessions' experience as a vessel owner, Captain, and operator, does not qualify him to render what amounts to expert testimony on whether the lever in question created a dangerous workplace or was unfit for its intended purpose. Id. This Court finds that his testimony is persuasive based on the years of experience he has had on such a vessel. Indeed, even the Plaintiff acknowledged that there is no evidence in the record on how one could design and/or place the control handle where it would be more accessible to someone operating a cathead winch. Id.
In sum, Plaintiff has failed to meet his burden of showing there is a genuine issue for trial in that: 1) he concedes that no member of the vessel's crew other than himself acted negligently; 2) he does not dispute that his sole negligence was the reason his hand became entangled in the feed line to the cathead; and, 3) he concedes the equipment was functioning properly. (Doc. 22 at 1-2). As such, it appears is that the only contention remaining is that the Defendant is liable for not repositioning the control handle of the winch/cathead to a place where he could have reached it after his left hand was caught. (Doc. 21 at 2). However, again, this argument fails to create a genuine issue for trial because: 1) there is no evidence whatsoever that an alternative design placing the control handle closer to the cathead is feasible; 2) Sessions testified he does not know of nor has ever seen a way to place the control handle in a more accessible position to the operator; 3) there is no evidence in the record that the present location of the control handle creates an unreasonably dangerous workplace or that the alternative design as suggested by Plaintiff is feasible; and, 4) the Plaintiff's work environment was reasonably safe. The undisputed evidence shows that Defendant provided a reasonably safe work environment and no competent evidence to the contrary exists so that the Plaintiff's accident was not reasonably foreseeable.
Plaintiff testified he has never seen anyone get tangled in a cathead like he did. See Plaintiff's Dep. at 96. Sessions testified that such an incident had never occurred on the vessel and that he is not aware of any person on any vessel ever being injured in this way. See Sessions Dep. at 39-40, 50.
Also, there is no evidence in the record that the position of the control valve was the proximate cause of Plaintiff's injury. Indeed, Plaintiff's deposition testimony reveals that the control handle could not be the proximate cause because the Plaintiff made no attempt to reach for the handle. (Doc. 22 at 3-4). Plaintiff testified that he blacked out when his left hand became entangled and that he does not even remember letting go of the rope he was holding with his right hand or making any attempt to reach the control handle. Id. at 4 (citing Plaintiff's Dep. at 65-67).
Thus, Plaintiff has failed to designate specific facts to show there is a genuine issue for trial. See Van T. Junkins and Associates v. U.S. Industries. Inc., 736 F.2d 656 (11th Cir. 1984); and, Lambert v. Independent Life and Accident Ins. Co., 994 F. Supp. 1385, 1387 (M.D. Ala. 1998). For example, Plaintiff himself has acknowledged that there is no evidence in the record on how to design and place the control handle where it is more accessible to a person operating a cathead winch. (Doc. 21 at 2). Moreover, Plaintiff's own testimony makes clear that the vessel and her winch were reasonably fit for its intended purpose and that the crew of the vessel were reasonably competent and adequate. See Plaintiff's Dep. at 62-63. Thus, there is no evidence that the Defendant was negligent or that the vessel was unseaworthy.
III. Conclusion
In light of the foregoing, this Court finds and it is hereby ORDERED that the Defendant's motion for partial summary judgment is due to be GRANTED on behalf of the Defendant and against the Plaintiff.