Henderson v. T&M Boat Rentals, LLC et al, No. 2:2017cv02042 - Document 65 (E.D. La. 2018)
Court Description: ORDER AND REASONS - IT IS ORDERED that Defendants Catlin Indemnity Company; Mr. Spotty L.L.C.; and T&M Boat Rentals, LLC.'s 49 motion for summary judgment be GRANTED IN PART and DENIED IN PART. With respect to Plaintiff Henderson's Jones Act negligence and unseaworthiness claims, the motion for summary judgment is GRANTED. With respect to Plaintiff's claims for maintenance and cure benefits, the motion is DENIED. IT IS FURTHER ORDERED that there be judgment in favor of Defendants and against Plaintiff with respect to Plaintiff's Jones Act negligence and unseaworthiness claims. Signed by Judge Susie Morgan on 8/9/2018. (bwn)
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Henderson v. T&M Boat Rentals, LLC et al Doc. 65 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A LAW REN CE H EN D ERSON , Plain tiff CIVIL ACTION VERSU S N O. 17-2 0 4 2 T&M BOAT REN TALS, LLC, ET AL., D e fe n d an ts SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Before the Court is a m otion for sum m ary judgm ent filed by Defendants Catlin Indem nity Com pany (“Catlin”); Mr. Spotty L.L.C. (“Mr. Spotty”); and T&M Boat Rentals, LLC. (“T&M”). 1 Plaintiff Lawrence Henderson opposes the m otion. 2 For the reasons that follow, the m otion for sum m ary judgm ent is GRAN TED in part an d D EN IED in part. I. FACTU AL & PROCED U RAL BACKGROU N D 3 Plaintiff was em ployed by T&M as a deckhand from May 20 14 until March 20 16. 4 Plaintiff alleges that on Decem ber 27, 20 15, while working on the M/ V ERIN W, a vessel owned by Mr. Spotty, he “was injured when he attem pted to lift a cable which was hanging over the side of a barge . . . in the water.”5 According to his com plaint, Plaintiff sustained “severe bodily injuries, including possible ruptured and/ or herniated lum bar and cervical discs and nerve dam age” as a result of this incident. 6 Plaintiff contends his injuries were 1 R. Doc. 49. R. Doc. 59. 3 Plaintiff filed his original com plaint on March 10 , 20 17. R. Doc. 1. Since his initial filin g, Plaintiff has filed a first, second, and third supplem ental and am ended com plaints. R. Docs. 4, 11, 24. The facts as stated in this section are derived from these filin gs. 4 R. Doc. 1 at ¶¶ V– VII; R. Doc. 49-2 at 124:1– 2. 5 Id. 6 Id. at IX. 2 1 Dockets.Justia.com the direct result of Defendants’ negligence and the unseaworthiness of the M/ V ERIN W. 7 He seeks dam ages for: 1. Past and future m edical expenses; 2. Past and future wage loss or dim inution of earning capacity; 3. Past and future physical an d m ental pain and suffering; 4. Past and future loss of household services; 5. Loss of enjoym ent of life; 8 Plaintiff also seeks to recover m aintenance and cure ben efits. 9 Discovery having been com pleted on J uly 17, 20 18, 10 Defendants tim ely filed the instant m otion for sum m ary judgm ent on J uly 24, 20 18 . 11 In their m otion, Defendants first argue there is no eviden ce on the record, other than Plaintiff’s own testim ony, to support Plaintiff’s allegation that the Decem ber 27, 20 15 accident took place. 12 Alternatively, Defendants argue that, even if Plaintiff did sustain in juries on Decem ber 27, 20 15, Plaintiff’s accident was not the result of Defendants’ negligence or the unseaworthiness of the M/ V ERIN W. 13 II. SU MMARY J U D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”14 “An issue is m aterial if its resolution could affect the outcom e of the action.”15 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing 7 Id. at VIII. Id. at X. 9 Id. at XII. 10 R. Doc. 37 at 8 . 11 R. Docs. 49, 37 at 8 . 12 R. Doc. 49-1 at 1. 13 Id. at 1– 2. 14 F ED . R. CIV. P. 56; see also Celotex, 477 U.S. at 322– 23. 15 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 8 2 the evidence.”16 All reasonable inferences are drawn in favor of the non-m oving party. 17 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 18 “[A] party seeking sum m ary judgm ent always bears the in itial responsibility of inform ing the district court of the basis for its m otion, and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.” To satisfy Rule 56’s burden of production, the m oving party m ust do one of two things: “the m oving party m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “the m oving party m ay dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .” If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 19 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to 16 Delta & Pine Land Co. v . N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 17 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 18 Hibernia N at. Bank v . Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citin g Am oco Prod. Co. v. Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 19 Celotex, 477 U.S. at 322– 24. 3 establish an essential elem ent of the non-m ovant’s claim . 20 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 21 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”22 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent eviden ce. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”23 III. LAW AN D AN ALYSIS As the m oving party, it is Defendants’ burden to establish the absence of any genuine issues of m aterial fact and that they are entitled to judgm ent as a m atter of law. In their m otion for sum m ary judgm ent, Defendants first argue Plaintiff will not be able to establish the alleged accident caused his injuries because, other than his own “selfserving” testim ony, Plaintiff has no evidence that the Decem ber 27, 20 15 accident actually occurred. 24 Alternatively, Defendants subm it, even if Plaintiff was injured while working aboard the M/ V ERIN W on Decem ber 27, 20 15, his injuries were not caused by 20 Id. at 331– 32 (Bren nan, J ., dissentin g). id. at 332. 22 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 23 Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 24 R. Doc. 49-1 at 1. 21 See 4 Defendants’ negligence or the vessel’s unseaworthiness. 25 The Court considers each argum ent in turn. A. Pla in tiffs o w n s w o rn s tate m e n t th at an accid e n t h e s u ffe re d w h ile w o rkin g o n th e M/ V ERIN W cau s e d h is in ju rie s is s u fficie n t in th is cas e to d e fe at D e fe n d an ts ’ s u m m ary ju d gm e n t m o tio n To m aintain a claim under the J ones Act, a plaintiff m ust prove not only that his em ployer’s negligen ce caused his in jury, but also that he was injured while acting “in the course of his em ploym ent.”26 Thus, it is axiom atic that, at trial, Plaintiff would bear the burden of proving he suffered an injury Decem ber 27, 20 15. In a J ones Act case, “[t]he jury is entitled to m ake perm issible inferences from unexplained events.”27 A party seeking sum m ary judgm ent, however, m ay rely upon the com plete absence of proof of an essential elem ent of the other party’s cause. 28 “[T]he m ovant m ay discharge his burden by dem onstrating that if the case went to trial there would be no com petent evidence to support a judgm ent for his opponent.”29 In support of their argum ent that Plaintiff has no com petent sum m ary judgm ent eviden ce to support his allegation that he actually suffered an injury on Decem ber 27, 20 15, Defendants point out that Plaintiff’s only eviden ce the incident occurred is his own “self-serving, uncorroborated [sworn testim ony],” which, according to Defendants, does not create a genuine issue of fact for trial. Defendants also point to affirm ative evidence on the record they contend refutes Plaintiff’s assertion that he was injured on Decem ber 27, 20 15. Defendants point out that, 25 Id. at 1– 2. Schillage v. Tidew ater Crew ing Ltd., No. 93– 2710 , 1995 WL 72768 , at *3 (E.D. La. 1995) (citing 46 U.S.C. § 688 ). 27 Id. (citing Johnson v. United States, 333 U.S. 46, 49 (1948)). 28 Fontenot v. Upjohn Co., 78 0 F.2d 1190 , 1196 (5th Cir. 1986). 29 Id. (quoting 10 A C. M ILLER , A. W RIGHT, M. KANE , F EDERAL P RACTICE AND P ROCEDURE : CIVIL 2d § 2727 at 130 (1983)). 26 5 despite allegedly suffering an injury on Decem ber 27, 20 15, Plaintiff did not seek m edical treatm ent for this alleged injury until March 3, 20 16, after he allegedly reinjured his back having tripped on a tree stum p. Defendants challenge Plaintiff’s assertion that he did not seek m edical care independently for his Decem ber 27, 20 15 injury because Plaintiff believed he could not afford it, noting that just five days before the alleged incident, Plaintiff sought m edical treatm ent at the Teche Regional Medical Center for an unrelated on-the-job in jury and that Plaintiff was not required to pay the costs associated with that treatm ent. Finally, Defendants offer sworn statem ents from Plaintiff’s co-workers, William Butler, Kirk Dardar, J ude Aucoin, and Scott Guilbeaux, each of whom denies the accident occurred. 30 In his sworn statem ent, Aucoin testifies that if som eone were injured on the vessel, protocol dictated that, as the land captain, he be notified of the injury. 31 Aucoin indicated he was never inform ed of Plaintiff’s injury, either by Plaintiff or any other crew m em ber. 32 He testified further that none of the captains aboard the vessel reported that Plaintiff was “having problem s from a physical standpoint perform ing the duties of his job.”33 Sim ilarly, Dardar testified he was on the vessel the day Plaintiff’s alleged injury took place, but that “[Plaintiff] never reported [the incident] to [him ].”34 Dardar contends Plaintiff continued to work alongside him for “a num ber of other days” after the alleged incident with no indication Plaintiff had been injured. 35 Butler in his sworn statem ent explained 30 R. Docs. 49-3, 49-4, 49-5, 64-2. R. Doc. 49-3 at 12:1– 15; see also R. Doc. 59-4 at 10 :1– 3 (“If the incidence . . . [had] happened, I would have stopped everything an d called J udge [Aucoin] an d got [Plaintiff] picked up and sent to the doctor.”). 32 R. Doc. 49-3 at 12:1– 5. 33 Id. at 12:13– 14. 34 R. Doc. 49-5 at 9:23– 10 :3. 35 Id. at 11:1– 22. 31 6 Plaintiff told him he was injured when he fell out of bed. 36 According to Butler, he visited Plaintiff on-shore and that when “[Butler] was leaving, [Plaintiff] was out there throwing a little kid in the air” and that, from Butler’s perspective, Plaintiff “didn’t look hurt.”37 Finally, Guilbeaux, who served as captain aboard the M/ V ERIN W on Decem ber 27, 20 15 and who was on duty at the tim e the incident took place, testified Plaintiff never reported any injury to him and that “[a]s captain and supervisor of [Plaintiff] from Decem ber 23, 20 15 to Decem ber 29, 20 15, [he] observed [Plaintiff] perform ing deckhan d work without difficulty and at no tim e did he appear to be injured.”38 Guilbeaux testified further that Plaintiff told him “he would file a lawsuit against T &M Boat Rentals, LLC if [Plaintiff were] ever fired from his em ploym ent, in an attem pt to recover m oney for an accident that did not occur.”39 Notably, Plaintiff was term inated from his em ploym ent with T&M in March of 20 16. 40 Having offered significant evidence to support their argum ent that the incident Plaintiff alleges never actually took place, Defendants have borne their initial sum m ary judgm ent burden. Thus, to defeat Defendants’ sum m ary judgm ent m otion, Plaintiff m ust direct the Court’s attention to som ething in the pleadings or other eviden ce in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed rem ain for trial. 41 36 R. Doc. 49-4 at 8:8– 23. Id. at 10 :19– 20 . 38 R. Doc. 64-2 at ¶¶ 7– 9. 39 Id. at ¶ 12. 40 R. Doc. 49-2 at 112:24– 116:23. 41 Celotex, 477 U.S. at 322– 24. 37 7 Plaintiff points to his own deposition testim ony, wherein he explains he was injured on Decem ber 27, 20 15 when he attem pted to pull a cable from the water. 42 Plaintiff testified that, because the cable was partly in the water, he: had to stoop down with a spike pole and pull a line out the water. And when I get it half up, because there’s no way you can bring it all the way up like this, so I had to get down, grab the eye of the cable, and pull it up. And as I was pulling up, pop, pop, pop. 43 He testified further that he reported his accident to T&M em ployees im m ediately and that, once ashore, he inform ed Aucoin of his injury. 44 He also subm its he “kept telling [Aucoin he] needed to go to the doctor,” but that he “[n]ever got sent to the doctor,” despite “ask[ing] three tim es.”45 Plaintiff contends that his testim ony “regarding the facts and circum stances of his accident is unrefuted,” and that, at the very least, his sworn statem ent is sufficient to create a genuine issue of m aterial fact. Plaintiff argues further that “[n]one of the witnesses put forward by the defendants can attest that Mr. Henderson did not have an accident; they were not present at the tim e the accident occurred, an d m ay be biased against [him ].”46 The issue before the Court, therefore, is whether Plaintiff’s own deposition testim ony is sufficient to overcom e Defendants’ m otion for sum m ary judgm ent, in light of the evidence Defendants offer to refute Plaintiff’s allegation. Defendants contend that when the m oving party provides the court with “overwhelm ing docum entary evidence” supporting its version of events over the nonm oving party’s, “[the non-m oving] party’s uncorroborated self-serving testim ony cannot 42 R. Doc. 59-2 at 187:1– 25. R. Doc. 49-2 at 99:1– 5. 44 Id. at 112:24– 116:23. 45 Id. at 95:12– 19. 46 R. Doc. 59 at 10 . 43 8 prevent sum m ary judgm ent.”47 Defendants cite Vinew ood Capital, LLC v. Dar Al-Maal Al-Islam i Trust in support of their assertion. 48 In Vinew ood, the parties disputed the term s of a business deal, m ost of which had been reduced to writin g. 49 According to the plaintiff, in addition to their written agreem ent, the defendant also had verbally com m itted to m aking $ 10 0 m illion in real estate investm ents. 50 The defendant m oved for sum m ary judgm ent on plaintiff’s claim , offering several pieces of evidence indicating no such verbal agreem ent existed. As the Fifth Circuit detailed: [T]he record is replete with docum entary evidence, m uch of it produced by principals of [the plaintiff], that proposes a business relationship with defendants with no m ention of the alleged oral agreem ent. In fact, correspondence sent by the plaintiff im m ediately after the Geneva m eeting describes an agreem ent giving DMI full discretion to accept or reject any particular project generated by plaintiff. The Financing MOU echoes those term s describing DMI’s right of first refusal on all real estate investm ents [the plaintiff] presents, specifically stating that DMI would “have no obligation whatsoever to participate or becom e involved in such transactions.” Neither the Settlem ent Agreem ent nor the Special Purpose Mudaraba Agreem ent contain any provision obligating DMI to participate in any real estate investm ents offered by [the plaintiff]. In addition, even if we assum e that an oral agreem ent was form ed in Geneva, the release language in the Settlem ent Agreem ent and the m erger clauses in the Settlem ent Agreem ent and the Mudaraba Agreem ent would negate that agreem ent. Months later, after the parties m et in London in Decem ber 20 0 4, Conrad continued to describe DMI’s obligation to fund proposed projects as optional. 51 In opposition to the defendant’s sum m ary judgm ent evidence, the plaintiff offered the “uncorroborated[,] self-serving testim ony” of its officer, who reiterated the plaintiff’s allegation that the defendant had verbally pledged $ 10 0 m illion in investm ents. The Fifth Circuit affirm ed the district court’s grant of sum m ary judgm ent in favor of the defendants, 47 R. Doc. 49-1 at 6. 541 F. App’x 443, 447 (5th Cir. 20 13). 49 Id. 50 Id. 51 Id. at 448. 48 9 concluding the officer’s “self-serving testim ony is belied by the parties’ contem poraneous written com m unications and written agreem ents and is therefore in sufficient to create an issue of fact.”52 In this case, the eviden ce Defendants offer to contradict Plaintiff’s assertions is not so overwhelm ing that Plaintiff’s sworn testim ony fails to create a genuine issue of fact. Unlike the evidence in this case, the evidence in Vinew ood directly contradicted the plaintiff’s allegations. In the instant m atter, however, the evidence Defendants offer is only circum stantial an d at best shows there were no witnesses to Plaintiff’s accident, an accident he conten ds he reported but which was ignored. Because the Court m ay not m ake credibility determ inations at the sum m ary judgm ent stage and Defendants’ eviden ce is not so overwhelm ing as to warrant sum m ary judgm ent, the Court concludes Plaintiff has created a genuine issue of m aterial fact with respect to whether his Decem ber 27, 20 15 injury occurred as he has testified. As the Fifth Circuit explained in C.R. Pittm an Construction Com pany , Inc. v. N ational Fire Insurance Com pany of Hartland, “[a] party’s own testim ony is often ‘selfserving,’ but we do not exclude it as incom petent for that reason alone. . . . If all “selfserving” testim ony were excluded from trials, they would be short in deed.”53 Rather, “an affidavit based on personal knowledge and containing factual assertions suffices to create a fact issue, even if the affidavit is arguably self-serving.”54 52 Id. 453 F. App’x 439, 443 (5th Cir. 20 11) (citing Rushing v. Kan. City S. Ry ., 18 5 F.3d 496, 513 (5th Cir. 1999), superseded by FED.R.EVID. 10 3(a) on other grounds as recognized in Mathis v. Exxon Corp., 30 2 F.3d 448, 459 n . 16 (5th Cir.20 0 2) (“[M]erely claim in g that the evidence is self-servin g does not m ean we cannot consider it or that it is insufficient. Much evidence is self-serving and, to an extent, conclusional.”)). 54 Id. 53 10 In this case, Plaintiff’s testim ony stem s from his personal knowledge of the incident. Although it is arguably self-servin g and the evidence Defendants offer puts Plaintiff’s credibility into question, at the sum m ary judgm ent stage the Court m ay not m ake credibility determ inations, weigh evidence, or resolve factual disputes. 55 “[S]o long as the eviden ce in the record is such that a reasonable jury drawing all inferences in favor of the nonm oving party could arrive at a verdict in that party’s favor, the court must deny the m otion.”56 The Court’s only task at this stage is to assess whether “a genuine issue of m aterial fact” rem ain s for resolution at trial. 57 As a result, the Court will not grant Defendants sum m ary judgm ent based on their argum ent that Plaintiff was not injured on the M/ V ERIN W while working as a J ones Act seam an on Decem ber 27, 20 15. Because the issue of whether Plaintiff was actually injured on Decem ber 27, 20 15 rem ains for trial, the Court will deny Defendants’ m otion for sum m ary judgm ent to the extent it seeks dism issal of Plaintiff’s claim for m aintenance and cure benefits. In their reply, Defendants agree that, in the event the Court concludes Plaintiff has m et his burden of proving he was injured on Decem ber 27, 20 15, dism issal of this claim is prem ature. 58 “Maintenance and cure is an obligation im posed upon a shipowner to provide for a seam an who becom es ill or injured during his service to the ship.”59 To receive m aintenance and cure, a plaintiff m ust prove (1) his em ploym ent as a seam an ; (2) that his illness or injury “occurred, was aggravated or m anifested itself while in the ship’s 55 MAN Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 478 – 79 (5th Cir. 20 0 6) (citing Reev es v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 (20 0 0 )). 56 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). 57 Celotex Corp., 477 U.S. at 322– 23; W allace v. Tex. Tech. Univ., 80 F.3d 10 42, 10 46– 47 (5th Cir. 1996). 58 R. Doc. 64 at 7 (“Defendants’ Motion acknowledges that if the Court finds a genuin e issue of fact exists as to whether or not Plaintiff was in jured on Decem ber 27, 20 15, but determ ines that there is insufficient evidence to carry his burden of provin g negligence or unseaworthiness, his m ain tenance and cure claim would survive.”). 59 Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 20 0 2). 11 service,” (3) the wages to which he m ay be entitled; and (4) “the expenditures or liability incurred by him for m edicines, nursing care, board and lodging.”60 “When there are conflicting diagnoses and prognoses from various physicians, there is a question of fact to be determ ined by the trier of fact as to a plaintiff’s entitlem ent to m aintenance and cure benefits.”61 Because Plaintiff has offered sufficient evidence that he was injured while in the service of the M/ V ERIN W, the only elem ent of Plaintiff’s m aintenance an d cure claim Defendants challenge, sum m ary judgm ent on this claim is not appropriate at this tim e. B. D e fe n d an ts are e n title d to s u m m ary ju d gm e n t o n Plain tiff’s n e glige n ce a n d u n s e aw o rth in e s s claim s Defendants argue in the alternative that, even if Plaintiff has offered sufficient eviden ce to create a disputed issue of fact as to whether the incident occurred, he is unable to bear his burden of dem onstrating Defen dants’ negligence or the unseaworthiness of the M/ V ERIN W contributed in any way to Plaintiff’s injury. Thus, Defendants contend, they are entitled to sum m ary judgm ent on these claim s. 1. N e glige n ce The J ones Act provides a seam an a cause of action for injuries he sustained as a result of his em ployer’s negligence. 62 To establish causation under the J ones Act, a plaintiff bears a “featherweight” burden of proof. 63 Thus, a seam an m ay recover under the J ones Act if his em ployer’s negligence contributed to his injury, even in the slightest degree. 64 Although the burden of proving causation is slight, a J ones Act plaintiff m ust nevertheless offer som e evidence of his em ployer’s negligence to prevail at trial. 60 Sm ith v. Fla. Marine Tran sporters, Inc., No. 10 -8 89, 20 11 WL 258 0 625, at *2 (E.D. La. J une 29, 20 11). v . L & M Botruc Rental, Inc., 924 F. Supp. 2d 728 , 734 (E.D. La. 20 13). 62 Gautreaux v. Scurlock Marine, Inc., 10 7 F.3d 331, 335 (5th Cir. 1997). 63 Gavagan v. United States, 955 F.2d 10 16, 10 19 (5th Cir. 1992). 64 Gautreaux, 10 7 F.3d at 335; see also In re Cooper/ T. Sm ith, 929 F.2d 10 73, 10 76-77 (5th Cir. 1991) (citin g Landry v. Oceanic Contractors, Inc., 731 F.2d 299, 30 2 (5th Cir. 1984) (““Under the J ones Act, a defendant 61 Sny der 12 In this case, Plaintiff testified that on Decem ber 27, 20 15, he was working a hitch as a deckhand when he injured his back while attem pting to pull a cable that was partially in the water. 65 In support of their sum m ary judgm ent m otion, Defendants subm it “[t]here is no evidence . . . the cable presented an unsafe condition or that T&M knew or should have known about it.”66 In opposition, Plaintiff m erely points to his own testim ony that he did not place the cable in the water, and that his injuries, therefore, were caused by the incom peten ce of a fellow crewm em ber. 67 It is undisputed that “[t]he tool that Plaintiff was provided to accom plish the wirepulling task was the right tool for the job.”68 It is also undisputed that “[t]he wire that Plaintiff was attem pting to lift at the tim e of the [i]ncident weighed approxim ately 40 to 50 pounds,”69 and that lifting the wire was a “one m an job.”70 Further, Plaintiff testified he was provided with adequate training on how to perform this particular task. 71 Plaintiff also testified there was nothing wrong with the vessel and it was a clean and safe working environm ent, 72 and he did not blam e any of his fellow crewm em bers for the accident. 73 Finally, in his deposition, Plaintiff testified he had “no idea” why his accident occurred. 74 Based on the record currently before the Court, there is no eviden ce of Defendants’ negligence. Plaintiff cannot point to: (1) a violation of som e regulation; (2) evidence that m ust bear the responsibility for any negligence, however slight, that played a part in producin g the plaintiff’s injury.”)). 65 R. Doc. 49-2 at 98:23– 99:9. 66 R. Doc. 49-1 at 9. 67 R. Doc. 59-2 at 186:17– 187:20 . 68 R. Doc. 49-8 at ¶ 17; R. Doc. 59-8 at ¶ 17. 69 R. Doc. 49-8 at ¶ 18; R. Doc. 59-8 at ¶ 18. 70 R. Doc. 49-8 at ¶ 15; R. Doc. 59-8 at ¶ 15. The Court notes Plaintiff disputes this fact, in part, but only “insofar as it speaks to the job of lifting the cable under norm al circum stances.” Id. 71 R. Doc. 49-2 at 95:20 – 96:3; 179:25– 180 :2. 72 Id. at 179:19-20 . 73 Id. at 178:12-179:1. 74 Id. at 178:1-11. 13 there had been other injuries resulting from crewm em bers attem pting to lift a cable out of the water; or (3) expert testim ony that the subm erged cable presented an unsafe condition. 75 Because Plaintiff has wholly failed to offer any evidence to show that the partially subm erged cable constituted an unsafe condition, the Court will grant sum m ary judgm ent as to Plaintiff’s negligence claim . 2. U n s e aw o rth in e s s To prevail on an unseaworthiness claim , a plaintiff m ust first show the vessel was unseaworthy. A vessel’s unseaworthiness m ay arise from several circum stances, including defective gear, appurtenances in disrepair, an unfit crew, an im proper m ethod of loading cargo, or an insufficient num ber of workers assigned to a task. 76 Once the plaintiff dem onstrates the vessel’s unseaworthiness, he m ust also show that the “unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result of a reasonably probable consequence of the unseaworthiness.”77 Defendants again argue Plaintiff has no evidence the cable being left partially in the water rendered the M/ V ERIN W unseaworthy, let alone eviden ce that a back injury is a reasonably probable consequen ce of lifting a subm erged cable. Like his negligence claim , Plaintiff offers nothing beyond his conclusory assertion that the cable being 75 See Thom as v. Hercules Offshore Servs., LLC, 713 F. App’x 382, 386 (5th Cir. 20 18 ) (citin g Jussila v. M/ T La. Brim stone, 691 F.2d 217 (5th Cir. 198 2) (affirm ing the den ial of a m otion for directed verdict because the seam an and the shipowner provided expert witn ess testim ony regarding whether a m etal rim that arose vertically from the deck constituted an unsafe condition, which dem onstrated that reasonable m inds could differ as to the shipowner’s negligence)) (“The district court ruled that there was n o evidence of Hercules’s negligence because Thom as could point to no: (1) violation of a Coast Guard regulation; (2) evidence that there had been other incidents of trippin g over the raised doorsill; or (3) expert testim ony that the raised doorsill was an unsafe con dition.3 We agree. Because Thom as wholly failed to offer any evidence to show that the raised doorsill constituted an un safe condition, the district court properly granted sum m ary judgm ent as to the negligen ce claim brought under the J ones Act.”). 76 Usner v. Luckenbach Overseas Corp., 40 0 U.S. 494, 499 (1971). 77 Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 198 8). 14 partially in the water creates an unseaworthy condition. As a result, the Court concludes Plaintiff has failed to create a genuine issue of fact with respect to whether the partially subm erged wire ren dered the vessel unseaworthy. Defendants are entitled to sum m ary judgm ent on this claim . Accordingly; CON CLU SION IT IS ORD ERED that Defendants Catlin Indem nity Com pan y; Mr. Spotty L.L.C.; and T&M Boat Rentals, LLC.’s m otion for sum m ary judgm ent be GRAN TED IN PART and D EN IED IN PART. 78 With respect to Plaintiff Henderson’s J ones Act negligence and unseaworthiness claim s, the m otion for sum m ary judgm ent is GRAN TED . With respect to Plaintiff’s claim s for m aintenance and cure benefits, the m otion is D EN IED . IT IS FU RTH ER ORD ERED that there be judgm ent in favor of Defendants and against Plaintiff with respect to Plaintiff’s J ones Act negligence and unseaworthiness claim s. N e w Orle a n s , Lo u is ian a, th is 9 th d ay o f Au gu s t, 2 0 18 . ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 78 R. Doc. 49. 15
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