Weaver et al v. Signal Mountain Cement Co. et al

MOTION for Summary Judgment

E.D. Tenn.March 27, 2017

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE CHATTANOOGA DIVISION ______________________________________________________________________________ MATTHEW WEAVER and SABRINA WEAVER, Plaintiffs, vs. No. 1:16-cv-00015-SKL SIGNAL MOUNTAIN CEMENT COMPANY d/b/a BUZZI UNICEM USA, and SERODINO, INC. Defendants. ______________________________________________________________________________ SERODINO, INC.’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Comes now the Defendant, Serodino, Inc. (“Serodino”), and files this Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Serodino would respectfully show this Court that there is no genuine issue of material fact present and that it is entitled to judgment as a matter of law on the lack of all of the Plaintiffs’ claims against it. The undisputed material facts show that the deck rigging on which the Plaintiff Matthew Weaver slipped was an open and obvious condition, and the sole cause of the Plaintiff Matthew Weaver’s alleged injuries was the fault of the Plaintiff Matthew Weaver in failing to care for his own safety. Therefore, regardless of whether the Plaintiff Matthew Weaver is ultimately determined to be a seaman or a longshoreman, the Plaintiff Matthew Weaver’s claims for negligence under either the general maritime law or the Longshore and Harbor Workers Compensation Act and for unseaworthiness under the general maritime law fail as a matter of law. Because the Plaintiff Matthew Weaver’s claims fail as a matter of law, so too do the Case 1:16-cv-00015-SKL Document 40 Filed 03/27/17 Page 1 of 3 PageID #: 280 - 2 - Plaintiff Sabrina Weaver’s claim for loss of consortium also fail as a matter of law. As support for this motion, Serodino relies on its Brief in Support of this Motion, which is being filed herewith and includes a statement of undisputed material facts. WHEREFORE, the Defendant, Serodino, Inc. respectfully requests that this Court enter an order granting it summary judgment on all of the Plaintiffs’ claims against it herein, including the Plaintiff Matthew Weaver’s claim for negligence under either the general maritime law or the Longshore and Harbor Workers Compensation Act, the Plaintiff Matthew Weaver’s claim for unseaworthiness under the general maritime law, and the Plaintiff Sabrina Weaver’s claim for loss of consortium, and for such other relief to which it may show itself justly entitled. Serodino, Inc. requests oral argument on this motion. Respectfully submitted, BRATTON & O’NEAL, P.C. By_/s/ Elissa Mulrooney Coombs_____________ G. Ray Bratton, TN Bar #7522 Elissa Mulrooney Coombs, TN Bar #22209 Attorneys for the Defendant Serodino, Inc. 675 Oakleaf Office Lane, Suite 200 Memphis, Tennessee 38117-4863 Telephone: (901) 684-6100 Fax: (901) 684-6106 E-mail: raybratton@brattononeal.com E-mail: emm@brattononeal.com Case 1:16-cv-00015-SKL Document 40 Filed 03/27/17 Page 2 of 3 PageID #: 281 - 3 - CERTIFICATE OF SERVICE I hereby certify that on March 27, 2017, I electronically filed the foregoing document with the Clerk of the Court by using the CM/ECF system, which will automatically send a notice of electronic filing to the following: Lee J. Bloomfield, Esq. Godwin, Morris, Laurenzi and Bloomfield, P.C. 50 N. Front Street, Suite 800 Memphis, TN 38103 Gerard M. Siciliano, Esq. Luther-Anderson, PLLP P.O. Box 151 Chattanooga, TN 37401 David M. Flotte, Esq. Marcelle P. Mouledoux, Esq. Salley, Hite, Mercer & Resor, LLC 365 Canal Street, Suite 1710 New Orleans, LA 70130 I further certify that there are no non-CM/ECF participants in this case. _/s/ Elissa Mulrooney Coombs___________ Elissa Mulrooney Coombs F:\data\Serodino\Weaver\Sum.Judg.Motion.doc Case 1:16-cv-00015-SKL Document 40 Filed 03/27/17 Page 3 of 3 PageID #: 282 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE CHATTANOOGA DIVISION ______________________________________________________________________________ MATTHEW WEAVER and SABRINA WEAVER, Plaintiffs, vs. No. 1:16-cv-00015-SKL SIGNAL MOUNTAIN CEMENT COMPANY d/b/a BUZZI UNICEM USA, and SERODINO, INC. Defendants. ______________________________________________________________________________ BRIEF IN SUPPORT OF SERODINO, INC.’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Comes now the Defendant, Serodino, Inc. (“Serodino”), and files this Brief in Support of Its Motion for Summary Judgment. Serodino would respectfully show this Court that this Motion should be granted for the following reasons: STATEMENT OF UNDISPUTED MATERIAL FACTS 1. The Plaintiff Matthew Weaver (“Weaver”) alleges that he sustained an injury on December 25, 2014, on a barge owned by Serodino when he stepped on rigging on the deck of the barge and fell.1 2. Weaver claims that he is a Jones Act seaman and has sued Serodino under the general maritime law for negligence and unseaworthiness.2 1 See the Complaint, ¶ ¶ 4-5. 2 See the Complaint, ¶ ¶ 9, 16-18. Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 1 of 24 PageID #: 283 - 2 - 3. The Plaintiff Sabrina Weaver’s claim herein is solely for loss of consortium.3 4. At the time of the incident, Weaver was not employed by Serodino, but instead was employed by the Defendant Signal Mountain Cement Company d/b/a Buzzi Unicem USA (“Signal Mountain”).4 5. On the day of the incident, Weaver arrived at work at approximately 4:00 am, barge loading began at 4:30 am, and the incident occurred at approximately 6:00 am.5 6. The incident occurred when Weaver was pulling a barge into place to be loaded.6 7. The incident occurred as Weaver was walking backwards, pulling a soft line (or rope) to position the barge for loading, when he stepped on a shackle on the deck of the barge, slipped, and fell to the deck of the barge.7 8. As Weaver fell, he tried to catch himself with his right arm, which resulted in his overextending his right arm and breaking his wrist.8 9. Weaver admitted that it is common for rigging to be present on barge decks, and he has never seen a barge come in for loading that did not have rigging present on the deck.9 10. Weaver admitted not only that he had seen rigging located on the decks of the 3 See the Complaint, ¶ 7. 4 See the Complaint, ¶ 4. 5 See the Deposition of Matthew Weaver (the “Weaver Deposition”), relevant portions of which are attached hereto as Exhibit A and incorporated by reference as if fully set forth, page 172, line 7 – page 173, line 7 and page 184, lines 7-13. 6 See the Weaver Deposition, page 174, lines 19-21. 7 See the Weaver Deposition, page 177, lines 17-19, page 181, lines 2-9, page 181, line 17 – page 182, line 7, page 182, line 22 – page 183, line 16, and page 185, lines 18-22. 8 See the Weaver Deposition, page 183, line 24 – page 184, line 6. 9 See the Weaver Deposition, page 115, lines 5-24. Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 2 of 24 PageID #: 284 - 3 - Serodino barges prior to the incident, but also that he personally had taken photographs of such rigging days before the alleged incident.10 11. One of the photographs that Weaver took prior to the alleged incident is of a shackle lying on the deck of a Serodino barge.11 12. Weaver admitted that it was his responsibility to inspect and clean up his work area and to put items in their proper places.12 13. Weaver admitted that rigging on the barge decks is something that he looks for when he goes out on barges.13 14. Weaver claims that he looked at the deck of the barge prior to the incident, but he did not notice the shackle.14 15. Weaver admitted that he easily could have removed the shackle from his work area by simply scooting the shackle out of the way with his foot.15 16. Weaver was wearing a headlight at the time of the incident.16 17. Weaver admitted that if he had shined his headlight on the shackle, then he would have seen it.17 10 See the Weaver Deposition, page 170, line 1 – page 171, line 8 and Exhibit 29. 11 See the Weaver Deposition, page 171, lines 9-15. 12 See the Weaver Deposition, page 187, line 16 – page 188, line 8. 13 See the Weaver Deposition, page 260, line 17 – page 261, line 3. 14 See the Weaver Deposition, page 186, lines 6-24. 15 See the Weaver Deposition, page 186, line 25 – page 187, line 5. 16 See the Weaver Deposition, page 186, lines 10-11 and page 247, lines 8-16. 17 See the Weaver Deposition, page 247, lines 8-16. Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 3 of 24 PageID #: 285 - 4 - 18. Weaver testified that, “I should have been able to see it if I had shown [sic] [my headlight] on it.”18 19. Weaver admitted that weather was not a factor in the incident and that the deck of the barge was not slick.19 20. Weaver admitted that he did not step in any substance and there was nothing structurally wrong with the barge on which he fell.20 21. Weaver admitted that there is nowhere to store rigging other than on barge decks.21 ARGUMENT & AUTHORITIES I. SUMMARY JUDGMENT PRINCIPLES Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. In order to prevail on a motion for summary judgment, the movant must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party may support the motion with affidavits or by exposing the lack of proof on an issue on which the non-moving party has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). “If the defendant . . . moves for summary judgment . . . based on the lack of proof of a material fact, . . . [t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for 18 See the Weaver Deposition, page 247, lines 15-16. 19 See the Weaver Deposition, page 175, lines 16-22. 20 See the Weaver Deposition, page 245, line 9 – page 246, line 2 and page 246, lines 10-12 and 16-18. 21 See the Weaver Deposition, page 114, line 10 – page 115, line 4. Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 4 of 24 PageID #: 286 - 5 - the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A court should focus on “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. II. AS A MATTER OF LAW, SERODINO IS ENTITLED TO SUMMARY JUDGMENT ON ALL OF THE PLAINTIFFS’ CLAIMS AGAINST IT HEREIN BECAUSE THE DECK RIGGING ON WHICH THE PLAINTIFF MATTHEW WEAVER SLIPPED WAS AN OPEN AND OBVIOUS CONDITION AND THE SOLE CAUSE OF THE INCIDENT WAS THE FAULT OF THE PLAINTIFF MATTHEW WEAVER. One of the issues in this case is whether Weaver is a seaman or a longshoreman. Signal Mountain has filed a motion for summary judgment, arguing that Weaver is a longshoreman covered by the Longshore and Harbor Workers Compensation Act (“LHWCA”). Serodino joins in and adopts Signal Mountain’s summary judgment motion on the status issue. However, regardless of whether Weaver is ultimately determined to be a seaman or a longshoreman, Serodino is entitled to summary judgment on all the Plaintiffs’ claims against it herein. If Weaver is a longshoreman, then his claim for negligence fails as a matter of law, because the deck rigging on which he slipped was an open and obvious condition, barring recover under § 905(b) of the LHWCA. If Weaver is a seaman, then his claims for negligence and unseaworthiness under the general maritime law also fail as a matter of law, because there was no unseaworthy condition or negligence on the part of Serodino, and the sole cause of the incident was the fault of Weaver in failing to care for his own safety. Because Weaver’s claims fail as a matter of law, so too do the Plaintiff Sabrina Weaver’s claim for loss of consortium also fail as a matter of law. A. Under § 905(b) of the LHWCA, a Longshoreman Cannot Recover Against a Vessel Owner for Breach of the Turnover Duty If the Alleged Hazardous Condition Was Open and Obvious. An injured longshoreman may only maintain a negligence action against a vessel owner Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 5 of 24 PageID #: 287 - 6 - through § 905(b) of the LHWCA. Section 905(b) of the LHWCA provides, in pertinent part, as follows: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party. 33 U.S.C. § 905(b). Section 905(b) also provides that, “The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred.” Id. To recover under § 905(b), a longshoreman must establish that such vessel negligence breached one of the three narrow Scindia duties. Gravatt v. The City of New York, 226 F.3d 108, 123-25 (2d Cir. 2000); Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603, 613 (1st Cir, 1996); Grennan v. Crowley Marine Servs., Inc., No. C05-1504, 2006 WL 623847, at *1 (W.D. Wash. Mar. 10, 2006). In the present case, if Weaver is a longshoreman, then Serodino is entitled to judgment as a matter of law on all of Weaver’s claims, because Serodino did not breach any of the three Scindia duties. In 1981, the United States Supreme Court established in Scindia Steam Navigation Co. v. Santos, 451 U.S. 156 (1981), that a shipowner owes longshoremen three duties when it relinquishes control of the vessel to a stevedoring company: (1) a turnover duty, (2) an active control duty, and (3) a duty to intervene. Scindia, 451 U.S. at 167-78. The first of the Scindia duties, the turnover duty, was described by the Supreme Court as follows: [t]his duty extends at least to exercising ordinary care under the circumstances to have the ship and its equipment in such condition that an experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property, and to warning the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 6 of 24 PageID #: 288 - 7 - that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work. The shipowner thus has a duty with respect to the condition of the ship’s gear, equipment, tools, and work space to be used in the stevedoring operations; and if he fails at least to warn the stevedore of hidden danger which would have been known to him in the exercise of reasonable care, he has breached his duty and is liable if his negligence causes injury to a longshoreman. Id. at 167 (citing Fed. Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416, n. 18 (1969)). Second, the active control duty articulated in Scindia was described as the shipowner’s duty to “exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation;” however, this duty arises only when the shipowner retains “active control” of the ship and is only implicated when the shipowner is actively involved in cargo operations and “negligently injures a longshoreman or . . . fails to exercise due care to avoid exposing longshoremen to harm. . . .” Id. at 167. Because Serodino was in no way involved in cargo operations at the time of the incident, the active control duty is not implicated in this case. Finally, the duty to intervene, the third Scindia duty, imposes a duty on a shipowner, once it becomes aware of a defect and of the fact that the stevedore is still operating, to intervene and remedy the defect, if such defect presents an unreasonable risk of harm to the longshoreman. Id. at 175-76. Like the active control duty, there has been no evidence that would implicate the application of the duty to intervene in this case. In the present case, Weaver’s allegations solely relate to the alleged condition of the barge when it was turned over to Signal Mountain. Therefore, although Serodino denies that it was in any way negligent, for Weaver to recover under § 905(b), he must establish a breach of the turnover duty. Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 7 of 24 PageID #: 289 - 8 - Numerous cases have explained the turnover duty. For example, in Bjaranson v. Botlho Shipping Corp., 873 F.2d 1204 (9th Cir. 1989), the Ninth Circuit held that the defendant vessel owner did not breach its turnover duty even though a crane on the vessel blocked the passageway for longshoremen to descend from a hatch cover. The plaintiff longshoreman was injured when he fell off of a coaming ladder while attempting to get off of the hatch cover. The court held: With respect to the turnover duty of safe condition, the Supreme Court in Scindia did not state unequivocally that the ship and its equipment must be in a safe condition. Rather, in preparing the ship for a cargo operation, the vessel must exercise ordinary care in light of the fact that the operation will be conducted by an “expert and experienced” stevedore. This implies that certain dangers that may be hazardous to unskilled persons need not be remedied if an expert and experienced stevedore could safely work around them. . . . [T]he ship must be “in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship’s service or otherwise,” will be able to conduct the cargo operation with safety. The explicit reference to dangers remaining aboard ship indicates that a shipowner may leave unremedied conditions that would otherwise be considered unreasonably dangerous to less skilled persons. This Court recognizes that a reasonable juror could, arguably, find the ladder to be a “hazard.” However, such a general conclusion does not in and of itself end the analysis. More is required, namely, the plaintiff must introduce evidence that the hazard was such that an expert and experienced stevedore would not “be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property.” It is this additional showing that is absent in this case. The burden of proving actionable negligence under the Scindia standard was upon Bjaranson. Rather than establishing negligence under that standard, the evidence in this case supports the conclusion that an expert and experienced stevedore could have safely conducted the cargo operation. The crane could have been moved by simply making a verbal or visual contact with the crane operator. Or, if the operator had been warned not to move the crane, the men, according to the testimony, could have squeezed around the leg of the crane. Furthermore, the crane itself provided an alternative means of descent from the hatch top. From this evidence it is apparent that all that was required to eliminate in its entirety any arguable hazard was movement of the crane. Such circumstances cannot give rise to a breach of the duty of safe condition. Bjaranson, 873 F.2d at 1207-08 (citations omitted). Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 8 of 24 PageID #: 290 - 9 - Part of the turnover duty involves a duty to warn of hidden dangers; however, no such duty to warn exists if the danger is open and obvious. Kirksey v. Tonghai Maritime, 535 F.3d 388, 392 (5th Cir. 2008). In Kirksey, the plaintiff longshoreman was injured when a steel coil fell on him during unloading operations. The district court found that, “the shipowner in this case violated its turnover duty by failing to exercise ordinary care to turn over the ship in a safe condition so as to allow the stevedore to safely perform its work and by failing to warn the stevedore that the vessel had encountered rough seas during the voyage creating a risk of unstable cargo stow.” Id. at 392. On appeal, the Fifth Circuit reversed, finding that because the condition of the tow was an open and obvious danger, the district court had erred in holding that the defendant breached its turnover duty. The plaintiff also argued that the defendant should have warned him that the vessel had encountered rough seas. The Fifth Circuit also rejected this argument and held: If the shipowner had no obligation to warn of an obviously defective stow, it can have no duty to warn of an incident that creates a risk of shifting cargo and an unstable stow. Knowledge that the vessel encountered heavy seas and weather would not be helpful to the stevedore in assessing the risk its longshoremen would face in unloading the vessel when the stevedore has actual knowledge of the conditions in the hold. Id. at 393. The Fifth Circuit went on to hold that if a condition is open and obvious, eliminating the duty of the vessel owner to warn of the condition, then the vessel owner cannot be in breach of the turnover duty in its entirety. The court noted that because the duty to warn is limited to latent defects, “it makes no sense to say that the vessel is nevertheless liable to the longshoremen for breach of the duty to turnover a safe ship based on an obvious defect against which it had no duty to warn.” Id. at 395. The court held, therefore, that if the alleged dangerous condition or defect is open and obvious, there is “no turnover duty to warn against the defect or to correct the unsafe Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 9 of 24 PageID #: 291 - 10 - condition.” Id. at 397. Summary judgment is appropriate in turnover duty cases when the alleged dangerous condition is open and obvious. Jackson v. Egyptian Nav. Co., 364 F.3d 113, 117 (3d Cir. 2004) (granting summary judgment to the vessel owner and holding, “The ship has no duty to warn about an obvious hazard in the work area that a competent stevedore would be expected to discover while properly performing its duties”); Johnson v. Volunteer Barge & Transport, Inc., No. 15-2630, 2016 WL 5115417, at *1 (E.D. La. Sept. 21, 2016) (granting summary judgment to the vessel owner and holding that because the dips or “potholes” in the barge floor were visible to the naked, untrained eye, the unevenness of the barge floor was an open and obvious condition and there was no breach of the turnover duty). Furthermore, the law is clear that if a longshoreman knows or should know of a dangerous condition, then that condition is considered open and obvious. Greenwood v. Societe Francaise DE, 111 F.3d 1239, 1246 (5th Cir. 1997); Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir. 1992) (ruling that a vessel owner “has not breached its duty to turn over a safe vessel if the defect causing the injury is open and obvious and one that the longshoreman should have seen”); see also McCuller v. Nautical Ventures, L.L.C., 434 Fed. Appx. 408, 412 (5th Cir. 2011) (noting that if a longshoreman “was subjectively aware of the dangerous condition, it would have to find that the condition was open and obvious”). Similarly, if a longshoreman has a quick and easy means of avoiding or remedying a dangerous condition, then there is no breach of the turnover duty. Pimental, 965 F.2d at 16 (holding that there was no turnover duty breach because “a reasonable jury could find only that the hazard was open and obvious and that it could have been easily remedied by [the longshoreman]”); Morris v. Compagnie Maritime Des Chargeurs Reunis, S.A., 832 F.2d 67, 71 Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 10 of 24 PageID #: 292 - 11 - (5th Cir. 1987) (holding there was no turnover duty breach because the longshoremen “could have avoided the danger with almost no interruption of their work by using any of the safe ladders ‘all around the ship’ or by using one of the stevedore’s own ladders locked away on the dock”); Tauzier v. East, 183 F. Supp. 3d 768, 783 (E.D. La. 2016) (holding that when a longshoreman “has actual knowledge of the danger and had means of avoiding it, ‘the vessel owner’s turnover duty is not implicated’”). Simply because a longshoreman forgets about a dangerous condition does not change the fact that it is open and obvious. For example, in McSwiggan v. Oulo Shipping Ltd., No. 90- 7001, 1992 WL 70416, at *1 (E.D. Pa. March 31, 1992), the court granted summary judgment and held that the vessel owner had not breached its turnover duty. The court stated: a competent longshoreman who works in an area containing an open and obvious recessed ladder must be able to anticipate the continuing presence of that condition. Simply forgetting the existence or location of the recessed ladder does not render the construction of the ship inherently unsafe. Nor could a reasonable trier of fact make such an inference based on the undisputed facts of this case. McSwiggan, 1992 WL 70416, at *4. The presence of rigging on a barge deck is an open and obvious condition, and there is no turnover duty breach when a longshoreman slips or trips on such rigging. For example, in Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31 (5th Cir. 1997), a sandblaster/painter was running to turn off a compressor when his feet became entangled in an unused mooring line (or rope) lying on the vessel deck, causing him to fall and injure his knee and back. The Fifth Circuit found that the plaintiff was aware that the mooring line was lying on the deck and had repeatedly worked around it. The court also found that the plaintiff could have easily remedied the situation with the exercise of reasonable care for his own safety by simply moving the line out of the way. The court held there was no breach of the turnover duty, because the presence of Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 11 of 24 PageID #: 293 - 12 - the line on the deck was an open and obvious condition that could have easily been remedied by the plaintiff himself or by his co-workers. Manuel, 103 F.3d at 34. Similarly, in Celestine v. Lykes Bros. S.S. Co., Inc., 729 F. Supp. 691 (N.D. Cal. 1989), a longshoreman was injured when he tripped over a spare coil of wire that was laying on the deck of a vessel. Although he claimed to have not noticed the coil, the evidence showed that he had passed by it many times prior to the incident. Additionally, one of the longshoreman’s duties was to inspect the deck for any hazards and either correct them or report them to his supervisor for appropriate action. The longshoreman admitted that correcting the situation would have taken no extra time or effort. Furthermore, the evidence showed that the coil had to be stored on the deck so that it could be readily accessible if needed. The court found that the presence of the coil on the deck was an open and obvious condition as a matter of law and granted summary judgment to the vessel owner, holding that the vessel owner “has no duty to anticipate the action or inaction of a careless stevedore.” Celestine, 729 F. Supp. at 693. Finally, if a condition would be immediately obvious to an experienced longshoreman, then it is open and obvious. For example, in In re Complaint of Wepfer Marine, Inc., 344 F. Supp. 2d 1130, 1137 (W.D. Tenn. Nov. 10, 2004), the plaintiff argued that the defendant vessel owner breached its turnover duty by failing to provide him a safety harness or fall protection. Rejecting this argument, the court stated, “the mere existence of an unsafe condition is not sufficient to establish liability of a vessel owner. An owner does not have an absolute duty to provide longshoremen and harbor workers with a completely safe vessel.” Wepfer, 344 F. Supp. 2d at 1138 (citation omitted). The court continued: in order to survive summary judgment, [the plaintiff] must “show that there was a latent defect . . . that the shipowner knew or should have known of the defect in the exercise of reasonable care, and that the shipowner breached its duty by failing to discover or warn the [subcontractor] of the defect.” In the Court's view, Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 12 of 24 PageID #: 294 - 13 - the alleged lack of a safety harness or other “fall protection” cannot be considered a “latent” defect, as such a condition would be immediately obvious to an expert and experienced stevedore. Id. at 1139. In the present case, Serodino did not breach its turnover duty, because the barge was in a condition that an expert and experienced longshoreman, mindful of the dangers he should reasonably expect to encounter, could safely perform his work. As explained hereinabove, a defendant cannot be held liable for breaching its turnover duty simply because a longshoreman acts unreasonably. Instead, a defendant should be able, and is able under maritime precedent, to rely on the experience of a longshoreman to conduct his longshoreman’s work in a reasonable and experienced manner. Here, Weaver did not act reasonably or in an experienced manner. Instead, he unreasonably walked backwards without shining his headlight in the direction he was walking to check for objects on the deck. He knew that the Serodino barges had rigging on the decks, as he had taken photographs of that rigging days before the incident. He had even taken a photo of a shackle similar to the one on which he stepped, causing his fall. This unreasonable act on the part of Weaver does not equate to the vessel failing to satisfy the turnover duty. Had Weaver been acting as an expert and experienced longshoremen, then he would have inspected the deck before walking on it and removed the shackle on which he stepped simply by scooting it out of the way with his foot. Weaver even admitted that he should have seen the shackle. Furthermore, it was Weaver’s own responsibility to inspect and clean up his work area and to put items in their proper places. Weaver did not inspect and clean up his work area, in violation of his duty to work as an experienced and expert longshoreman. Additionally, the presence of rigging on the deck of a barge is an open and obvious Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 13 of 24 PageID #: 295 - 14 - condition, such that Serodino had no duty to warn and cannot, as a matter of law, be held in breach of the turnover duty. As the court in Kirksey held that when a condition is open and obvious, there is no duty to warn and no turnover duty violation for an unsafe condition, so too should the Court here hold that Serodino had no duty to warn and did not breach the turnover duty, because the presence of the rigging on the deck of the Serodino barge was an open and obvious condition and there was no hidden danger. Similarly, Weaver is like the plaintiffs in Manuel and Celestine, who both tripped on rigging laying on the decks of vessels. Like these plaintiffs, Weaver had worked around the deck rigging before and Weaver had even taken photos of the rigging on a previous occasion. Also like these plaintiffs, Weaver had an easy way to remedy the situation in that he simply could have pushed the shackle out of his way with his foot. Therefore, like the courts in Manuel and Celestine held that there was no turnover duty breach, so too should the Court here hold that Serodino did not breach the turnover duty. Ultimately, because the vessel was in a safe condition for an experienced longshoreman to perform his work, and because the presence of rigging on a barge deck is an open and obvious condition, Serodino did not breach its turnover duty and is entitled to judgment as a matter of law. B. Under the General Maritime Law, a Seaman Cannot Recover Against a Vessel Owner for Negligence If the Sole Cause of the Incident Was the Seaman’s Own Fault. Like any other plaintiff, when a seaman’s own negligence is the sole cause of his injuries, judgment for the defendant is required. Brandon v. Owensboro Harbor Serv., Inc., No. 96-6613, 1998 WL 252763, at *2-3 (6th Cir. May 11, 1998). The law is clear: “A shipowner is not responsible to a seaman whose injuries are caused solely by the seaman’s own negligence.” Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 14 of 24 PageID #: 296 - 15 - Alrayashi v. Rouge Steel Co., 702 F. Supp. 1334, 1337 (E.D. Mich. 1989), aff’d, 889 F.2d 1086 (6th Cir. 1989); see also Mack v. Kellogg Brown & Root, Inc., 941 So. 2d 54 (La. Ct. App. 2006). The Sixth Circuit has ruled that when a seaman’s injuries are solely caused by his own negligence, judgment for the defendant is proper. In Brandon v. Owensboro Harbor Serv., Inc., the plaintiff seaman was an experienced, lead deckhand who was injured while attempting to secure two barges together when his foot was caught and pinned against a kevel on one of the barges. Although there was spilled coal on the deck of the barge on which the plaintiff was working, the evidence showed that the plaintiff had cleared the area around the kevel before beginning his work such that the area around the kevel was sufficiently clear to allow the plaintiff to safely perform his work of tying off the barge. Brandon, 1998 WL 252763, at *1. The evidence showed that the plaintiff had put the eye of the line around the kevel and then thrown the line around the timberhead of the other barge, which was approximately eight feet from where he was standing. He then began checking the line down by wrapping it in figure-eights around the kevel, until he realized that he was near running out of line; therefore, he dropped the line and it immediately fouled on itself. “Apparently, admittedly in violation of a well-known law of the sea and his employer’s deckhand manual, [the plaintiff] was standing in a ‘bight,’ which is a loop in a line, when the line ran out, thereby catching his left foot and drawing it against the kevel.” Id. The court also found that the plaintiff had improperly thrown the line too early, thereby leaving less line at his disposal when it was needed. Id. at *2. The district court found that the plaintiff’s injuries “resulted solely from his own negligence” and, therefore, dismissed the case with prejudice. Id. On appeal, the Sixth Circuit affirmed, holding that the district court correctly found that the plaintiff’s negligence in standing Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 15 of 24 PageID #: 297 - 16 - in the bight of the line as well as throwing the line too early was the sole cause of the plaintiff’s injuries and, therefore, the district court correctly dismissed the case. Id. at *3. The Sixth Circuit in Brandon held that because the defendant was not the seaman’s employer, under the general maritime law, the defendant only owed the seaman a duty of ordinary prudence, whereas the seaman “was required to act as would a reasonable, seasoned, lead deck hand in like circumstances.” Id. The Sixth Circuit affirmed the lower court’s holding that the sole cause of the incident was the seaman’s own negligence; therefore, there could be no recovery for negligence or unseaworthiness under the general maritime law. Id. The Fifth Circuit also has affirmed that a seaman is solely at fault when he trips on rigging that he should have seen and failed to remove. In Oswalt v. Williamson Towing Co., Inc., 357 F. Supp. 304 (N.D. Miss. 1973), aff’d in part, rev’d in part on other grounds, 488 F.2d 51 (1974), a seaman was attempting to disentangle a fouled wire when he stepped backwards onto a metal “cheater” pipe used to tighten ratchets, fell, and injured his back. The incident happened “during hours of darkness.” Oswalt, 357 F. Supp. at 306. The court held, After a careful examination of the evidence and reasonable inferences, we conclude that the sole proximate cause of plaintiff’s injury was his own negligence. We reach this conclusion primarily because of the established and undisputed fact that plaintiff arrived at his work station at least 10 to 15 minutes prior to the accident. Since he had no other duty to perform during this interval, we believe plaintiff had ample opportunity to examine the area at the starboard side of the break coupling where he was to begin removing the rigging. Id. at 308. Finding that the cheater pipe “was readily apparent and plaintiff knew or should have known of its location,” the court held that the sole cause of the incident was the plaintiff’s own negligence and dismissed the plaintiff’s negligence claim against the defendant. Id. the court held, Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 16 of 24 PageID #: 298 - 17 - Within the factual context of the present case, plaintiff knew or should have known of the potential danger of pulling on a tangled wire while objects lay on the deck behind him. It was incumbent upon plaintiff to remove such objects prior to pulling on the wire, or to take such other appropriate action to avoid injury. The cases are legion which hold that an injured seaman may not recover for injuries occasioned solely because of his own negligence. We hold that the sole proximate cause of plaintiff’s accident was his own negligence and his recovery on the issues of negligence and unseaworthiness is accordingly denied. Id. at 309. On appeal, the Fifth Circuit affirmed the lower court’s holding that the plaintiff’s negligence was the sole cause of the incident. Oswalt v. Williamson Towing Co., Inc., 488 F.2d 51, 53 (5th Cir. 1974). Similarly, the First Circuit also has held that summary judgment for the defendant is proper when the evidence shows that the sole cause of a seaman’s injury was the seaman’s own negligence. In Campos v. Marine Transp. Lines, Inc., 780 F.2d 165 (1st Cir. 1986), the plaintiff seaman hit his head on a shelf when he was reaching for a bottle of ketchup from a box on the vessel’s storage room floor. The plaintiff was familiar with the storage room and had retrieved supplies there on other occasions. The evidence showed that the plaintiff bent down under the shelf to obtain the bottle of ketchup and hit his head as he was getting up, which by his own deposition testimony, occurred because he did not remember that his head was beneath the shelf. The district court granted the defendant summary judgment, holding that “by the [plaintiff’s] own admission, he was responsible for his own injuries in that he simply forgot that the shelf was above him when he stood up, a conclusion which any reasonable person would have difficulty questioning.” Campos, 780 F.2d at 165. On appeal, the First Circuit affirmed, finding the issues raised by the plaintiff/appellant seaman to be “meritless and frivolous,” and even awarding double costs to the defendant/appellee. Id. at 166. In Alrayashi v. Rouge Steel Co., 702 F. Supp. 1334, 1337 (E.D. Mich. 1989), aff’d, 889 F.2d 1086 (6th Cir. 1989), the plaintiff seaman was injured while removing canvas runners that Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 17 of 24 PageID #: 299 - 18 - had been taped over the carpet in the galley of the defendant’s vessel to protect the carpet from accumulating dirt. The runners were occasionally removed when they became dirty or when non-seaman passengers were expected aboard the vessel. The plaintiff had personally removed the runners at least 35 times in the year and a half prior to his injury. On the occasion of his injury, the plaintiff was removing the tape securing the runners from underneath the dining room table when he moved upward and struck his back on the table, causing his injury. According to the plaintiff, he believed that he was no longer under the table when he rose up and struck the table. Alrayashi, 702 F. Supp. at 1336-37. The plaintiff sued under the Jones Act, claiming that the defendant vessel owner was negligent because the galley was carpeted rather than having tile floor, and that if it had been tiled, he would have been able to mop the floor to clean it rather than having to remove canvas runners. Id. at 1337. Finding that the sole cause of the incident was the plaintiff’s own lack of due care, the district court granted the defendant’s motion for summary judgment, holding that, “There is no question that plaintiff was provided with a reasonably safe workplace and that but for plaintiff’s failure to check his position under the table prior to moving upward, he would not have been injured.” Id. On appeal, the Sixth Circuit affirmed the district court’s granting of summary judgment. Alrayashi v. Rouge Steel Co., 889 F.2d 1086 (6th Cir. 1989). In the present case, if Weaver is determined to be a seaman, which Serodino disputes, then Serodino is entitled to summary judgment on Weaver’s negligence claim, because the sole cause of Weaver’s alleged injury was his own negligence in failing to observe his surroundings and watch where he was walking. The Plaintiff admitted that he should have seen the shackle and that he easily could have moved it out of his work space. Weaver was simply not acting as a reasonable, seasoned seaman in like circumstances, as the Sixth Circuit in Brandon held was the Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 18 of 24 PageID #: 300 - 19 - standard to which seamen are held. Like the plaintiff in Brandon whose foot injury was caused solely from his own carelessness in standing in the bight of the line and in throwing the line too early, Weaver’s injury here was caused solely from his own carelessness in not watching where he was walking. Similarly, like the plaintiffs in Campos and Alrayashi who were injured solely by their inattention to their surroundings when they raised up and hit their head and back on a shelf and dining room table, here Weaver was injured solely by his inattention to his surroundings when he blindly walked backwards and tripped over rigging that was clearly visible and of which he had previously taken photographs. As the defendants in these cases were held not to be liable for the plaintiff seamen’s carelessness and inattention, so too should Serodino here be granted summary judgment. Furthermore, as set forth in Oswalt and affirmed by the Fifth Circuit, there is no negligence on the part of the vessel owner simply because of the presence of rigging on a vessel’s deck, when the seaman knew or should have known of its presence. Because Weaver knew of rigging on the decks of Serodino barges and had even taken photos of such rigging prior to his incident, Serodino cannot be held liable simply because of the presence of such rigging. Ultimately, a vessel owner is not and cannot be held responsible for carelessness of seamen, and Serodino here should not be held responsible for Weaver’s injuries which were caused solely by his own such carelessness. Therefore, Serodino is entitled to summary judgment on Weaver’s claim for negligence under the general maritime law. C. Under the General Maritime Law, a Seaman Cannot Recover Against a Vessel Owner for Unseaworthiness If the Sole Cause of the Incident Was the Seaman’s Own Fault. Under the general maritime law, a shipowner has a duty to provide a seaworthy vessel to Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 19 of 24 PageID #: 301 - 20 - seamen. The United States Supreme Court has held that, “[u]nseaworthiness is a claim under general maritime law based on the vessel owner’s duty to ensure that the vessel is reasonably fit to be at sea.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001). The United States Supreme Court has further ruled that even though a vessel owner has a duty to provide a seaworthy vessel for her crew, the vessel owner is not obligated “to furnish an accident free ship.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). Rather, the Court described the duty of seaworthiness as follows: The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. Id. Because the shipowner’s liability is not absolute, the injured seaman must establish that there is a defect in the vessel. Hughes v. Conticarriers & Terminals, Inc., 6 F.3d 1195, 1197 (7th Cir. 1993). “A seaman must show that an unsafe condition on the vessel caused his injury; dispensing with the need to prove that some ‘fault’ led to this condition does not dispense with the need to establish that there was one.” Id. (emphasis added). Generally if a plaintiff lacks proof of causation of negligence under the general maritime law, then so too must his unseaworthiness claim fail for lack of proof of causation. Samanski v. Mobile Seafood Co., 258 F.2d 823, 825-36 (5th Cir. 1958). The Fifth Circuit has held, “The rationale behind the doctrine of unseaworthiness is to protect seamen from dangerous conditions beyond their control.” Little v. Green, 428 F.2d 1061, 1067 (5th Cir. 1970). Therefore, when the sole cause of a seaman’s injury is determined to be the negligence of the seaman himself, then there is no causal link to connect any unseaworthiness Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 20 of 24 PageID #: 302 - 21 - and an injury and, therefore, summary judgment is appropriate for the defendant. Brandon, 1998 WL 252763, at *3 (holding, “[B]ecause the district court did not clearly err in finding that [the plaintiff’s] own acts were the sole cause of his injuries, we have no occasion even to reach the question of whether barge 1802 was unseaworthy because the alleged unseaworthiness bore no causal connection to [the plaintiff’s] injuries”); Nichols v. Barwick, 792 F.2d 1520, 1523 (11th Cir. 1986) (holding that when the seaman is the sole cause of his injury, there is no causal link between the injury and unseaworthiness); Oswalt v. Williamson Towing Co., Inc., 357 F. Supp. 304 (N.D. Miss. 1973), aff’d in part, rev’d in part on other grounds, 488 F.2d 51 (1974) (same). In Alrayashi v. Rouge Steel Co., discussed supra Section II.B., involving a seaman who rose up and hit a table while removing canvas runners, the court also held that the “practice of taping canvas over carpeting in order to protect the carpet from dirt is not an action rendering the ship unseaworthy.” Alrayashi, 702 F. Supp. at 1337-38. The court held that there was no unseaworthy condition, as “[n]either the presence of canvas and tape on the floor nor the practice of applying or removing the tape rendered the vessel or the dining room unfit for their intended uses.” Id. at 1338. The court noted that even if there had been unseaworthiness because of the runners, there was still no causal connection between any such condition and the incident, given that the sole cause of the incident was the plaintiff’s own negligence. Id. On appeal, the Sixth Circuit affirmed the district court’s granting of summary judgment. Alrayashi v. Rouge Steel Co., 889 F.2d 1086 (6th Cir. 1989). In the present case, for the same reasons that Weaver is barred from recovery for negligence under the general maritime law, he is also barred from recovery for unseaworthiness under the general maritime law. Serodino denies that there was any unseaworthiness of the barge, because the presence of rigging on the deck of a barge does not make the barge unfit for Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 21 of 24 PageID #: 303 - 22 - its intended purpose. Weaver admitted that there was nothing structurally wrong with the barge and there was no other condition such as a slick deck or foreign substance that would make the barge unfit for its intended purpose. To the contrary, Weaver admitted that there is nowhere else to store rigging than on the decks of the barges. Because rigging is necessary equipment for the towing of barges and because there is nowhere else to store the rigging other than the barge decks, a barge is not unseaworthy or unfit for its intended purpose simply because of the presence of rigging on the deck of the barge. Weaver is not entitled to recover under this theory because the sole cause of his injury was his own negligence in failing to watch where he was walking. Because Weaver’s negligence was the sole cause for his injury, there simply can be no causal link between his injury and any alleged unseaworthiness. Therefore, Serodino is entitled to summary judgment on the Plaintiff’s unseaworthiness claim. D. Loss of Consortium Claims Are Derivative From the Spouse’s Claims. The Sixth Circuit has held, “[A] claim for loss of consortium is derivative in that the claim is dependent upon the defendant’s having committed a legally cognizable tort upon the spouse who suffers bodily injury.” Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 790– 91 (6th Cir. 2007) (citations omitted). Serodino denies that Sabrina Weaver has stated a claim upon which relief can be granted against Serodino. However, because Matthew Weaver’s claims against Serodino fail as a matter of law as discussed hereinabove, so too must Sabrina Weaver’s claim against Serodino for loss of consortium fail as a matter of law. III. CONCLUSION As a matter of law, Weaver cannot recover for negligence under the LHWCA if he is found to be a longshoreman, because the shackle on which he slipped was an open and obvious Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 22 of 24 PageID #: 304 - 23 - condition; therefore, there was no breach of the turnover duty. If Weaver is found to be a seaman, then he cannot recover for either negligence or unseaworthiness under the general maritime law, because the evidence clearly shows that the sole cause of his injuries was his own negligence for which Serodino is not responsible. Furthermore, as a matter of law, the Plaintiff Sabrina Weaver cannot recover for loss of consortium because her claim, if she even has one, is derivative from Weaver’s claims, which fail as a matter of law. Therefore, Serodino is entitled to summary judgment on all of the Plaintiffs’ claims herein, and Serodino’s Motion for Summary Judgment should be granted. WHEREFORE, the Defendant, Serodino, Inc., respectfully requests that this Court grant its Motion for Summary Judgment in its entirety, and for such other relief to which it may show itself justly entitled. Respectfully submitted, BRATTON & O’NEAL, P.C. By_/s/ Elissa Mulrooney Coombs_____________ G. Ray Bratton, TN Bar #7522 Elissa Mulrooney Coombs, TN Bar #22209 Attorneys for the Defendant Serodino, Inc. 675 Oakleaf Office Lane, Suite 200 Memphis, Tennessee 38117-4863 Telephone: (901) 684-6100 Fax: (901) 684-6106 E-mail: raybratton@brattononeal.com E-mail: emm@brattononeal.com Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 23 of 24 PageID #: 305 - 24 - CERTIFICATE OF SERVICE I hereby certify that on March 27, 2017, I electronically filed the foregoing document with the Clerk of the Court by using the CM/ECF system, which will automatically send a notice of electronic filing to the following: Lee J. Bloomfield, Esq. Godwin, Morris, Laurenzi and Bloomfield, P.C. 50 N. Front Street, Suite 800 Memphis, TN 38103 Gerard M. Siciliano, Esq. Luther-Anderson, PLLP P.O. Box 151 Chattanooga, TN 37401 David M. Flotte, Esq. Marcelle P. Mouledoux, Esq. Salley, Hite, Mercer & Resor, LLC 365 Canal Street, Suite 1710 New Orleans, LA 70130 I further certify that there are no non-CM/ECF participants in this case. _/s/ Elissa Mulrooney Coombs___________ Elissa Mulrooney Coombs F:\data\Serodino\Weaver\Sum.Judg.Memo.doc Case 1:16-cv-00015-SKL Document 40-1 Filed 03/27/17 Page 24 of 24 PageID #: 306 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 1 of 25 PageID #: 307 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 2 of 25 PageID #: 308 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 3 of 25 PageID #: 309 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 4 of 25 PageID #: 310 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 5 of 25 PageID #: 311 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 6 of 25 PageID #: 312 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 7 of 25 PageID #: 313 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 8 of 25 PageID #: 314 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 9 of 25 PageID #: 315 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 10 of 25 PageID #: 316 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 11 of 25 PageID #: 317 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 12 of 25 PageID #: 318 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 13 of 25 PageID #: 319 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 14 of 25 PageID #: 320 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 15 of 25 PageID #: 321 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 16 of 25 PageID #: 322 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 17 of 25 PageID #: 323 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 18 of 25 PageID #: 324 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 19 of 25 PageID #: 325 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 20 of 25 PageID #: 326 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 21 of 25 PageID #: 327 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 22 of 25 PageID #: 328 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 23 of 25 PageID #: 329 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 24 of 25 PageID #: 330 Case 1:16-cv-00015-SKL Document 40-2 Filed 03/27/17 Page 25 of 25 PageID #: 331