Luwisch v. American Marine Corporation, No. 2:2017cv03241 - Document 52 (E.D. La. 2018)
Court Description: ORDER AND REASONS - IT IS ORDERED that Defendant American Marine Corporation's (Rec. Doc. 31 ) Motion for Partial Summary Judgment on the issues of Jones Act negligence and unseaworthiness is hereby DENIED. Signed by Judge Susie Morgan on 6/18/2018. (sa)
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Luwisch v. American Marine Corporation Doc. 52 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A H EN RY LU W ISCH , Plain tiff CIVIL ACTION VERSU S N O. 17-3 2 4 1 AMERICAN MARIN E CORPORATION , D e fe n d an t SECTION : “E” ( 5 ) ORD ER AN D REAS ON S Plaintiff Henry Luwisch filed a com plaint in this Court seeking dam ages and m aintenance and cure benefits for injuries allegedly sustained while working for Defendant Am erican Marine Corporation aboard the M/ V AMERICAN CHALLENGER. 1 Defendant filed a m otion for partial sum m ary judgm ent on the issues of J ones Act negligence and unseaworthiness. 2 Plaintiff opposes the m otion. 3 Defendant filed a reply m em orandum . 4 For the reasons that follow, the m otion is D EN IED . BACKGROU N D In Luwisch’s com plaint, he alleges that on Novem ber 2, 20 14, while perform ing an inspection of the upper deck of the M/ V AMERICAN CHALLENGER, he tripped on an im properly stowed rope an d/ or board and fell approxim ately ten feet to the deck below. 5 As a result of the fall, Luwisch alleges he sustained injuries to his right shoulder and arm , neck, and head. 6 Luwisch brings claim s of J ones Act negligence, unseaworthiness, and m aintenance and cure. 7 1 R. Doc. 1. R. Doc. 31. 3 R. Doc. 34. 4 R. Doc. 40 . 5 R. Doc. 1 at 2. 6 R. Doc. 3. 7 R. Doc. 3-4. Defendant filed a separate m otion for partial sum m ary judgm ent on the issue of Luwisch’s claim for m aintenance and cure. R. Doc. 13. 2 1 Dockets.Justia.com These are the undisputed facts. Plaintiff Henry Luwisch worked for Defendant Am erican Marine Corporation (“AMC”) as a chief engineer, and was assigned to the M/ V AMERICAN CHALLENGER, an oceangoing tug. 8 On the m orning of Novem ber 2, 20 14, Luwisch and the other two m em bers of the vessel’s crew were preparing to m ove a 4-inch towing line from the dock to the top deck of the vessel, where another large woven rope and som e wooden pallet boards were already being stored. 9 The top deck of the vessel is accessible from the second deck via a rung ladder. 10 The top deck of the vessel has handrails that border the deck, but there is an open space in the handrail at the top of ladder. 11 A safety chain suspends across the ladder access opening. 12 Before the crew began m oving the 4-inch towing line, Luwisch clim bed up the ladder to the top deck to m ake certain there was sufficient room to store the additional line. 13 When Luwisch reached the top deck, he noticed the older rope was stored on the deck in such a way that it presented an obstacle to som eone entering or exiting the ladder. 14 Luwisch had to step over the rope to walk on the top deck. 15 After three to five m inutes, Luwisch decided to return to the second deck. 16 He walked back to the ladder and unhooked the safety chain, but, before stepping down, he noticed a wire sticking out of a junction box adjacent to the top of the ladder. 17 Luwisch briefly looked at the junction 8 R. Dc. 31-2 at ¶ 1. R. Doc. 34-1 at ¶ 1. R. Doc. 31-2 at ¶ 3, 10 . R. Doc. 34-1 at ¶ 1, 10 . 10 R. Doc. 31-2 at ¶ 8. R. Doc. 34-1 at ¶ 8. 11 R. Doc. 31-2 at ¶ 9. R. Doc. 34-1 at ¶ 9. 12 R. Doc. 31-2 at ¶ 9. R. Doc. 34-1 at ¶ 9 13 R. Doc. 31-2 at ¶ 18. R. Doc. 34-1 at ¶ 18. 14 R. Doc. 31-2 at ¶ 13. R. Doc. 34-1 at ¶ 13. 15 R. Doc. 31-2 at ¶ 13. R. Doc. 34-1 at ¶ 13. 16 R. Doc. 31-2 at ¶ 19; R. Doc. 31-2 at ¶ 19. 17 R. Doc. 31-2 at ¶ 20 . R. Doc. 34-1 at ¶ 20 . 9 2 box, then turned to face the ladder. 18 He then tripped on the rope and/ or boards an d fell through the opening at the top of the ladder to the second deck below. 19 Although the facts regarding the incident are largely undisputed, the parties dispute whether the m anner in which the rope and/ or boards was stored on the top deck of the vessel constituted negligen ce, or whether the m anner of storage rendered the M/ V AMERICAN CHALLENGER unseaworthy. On May 15, 20 18, AMC filed its m otion for partial sum m ary judgm ent. 20 With regard to Luwisch’s negligence claim , AMC contends that Luwisch is the sole cause of his own injuries, because “plaintiff could have exercised his unm itigated authority to stop the job until the ropes and/ or equipm ent on the top deck were m oved to elim inate any possible hazards.”21 AMC also contends the rope and boards were an open and obvious condition of the vessel, relieving it of liability. As to Luwisch’s unseaworthiness claim , AMC asserts Luwisch has subm itted no eviden ce to suggest the storage of the rope constituted an unseaworthy condition. 22 Luwisch tim ely filed his opposition on May 22, 20 18 . 23 LEGAL 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.”24 “An issue is m aterial if its resolution could affect the outcom e of the action.”25 18 R. Doc. 31-2 at ¶ 22. R. Doc. 34-1 at ¶ 22. R. Doc. 31-2 at ¶ 22. R. Doc. 34-1 at ¶ 22. 20 R. Doc. 31. 21 R. Doc. 31 at 31. 22 Id. at 14. 23 R. Doc. 34. 24 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 25 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 19 3 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”26 All reasonable inferences are drawn in favor of the nonm oving party. 27 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm 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. 28 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 29 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 nonm 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. 30 If the dispositive issue is one on which the nonm 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 eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonmovant’s claim . 31 When proceeding under the first option, if the 26 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8 ); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 27 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 28 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 29 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 30 Celotex, 477 U.S. at 322– 24. 31 Id. at 331– 32 (Brennan , J ., dissenting); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex Corp. v. Catrett, 477 U.S. 317, 322– 24 (1986), and requirin g the m ovants to subm it affirm ative evidence to negate an essential 4 nonm oving party cannot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 32 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”33 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 34 If the m ovant m eets this burden, “the burden of production shifts [back again] to the nonm oving party, who m ust either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional eviden ce showing the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”35 “Sum m ary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”36 elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the nonm ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citing J ustice Bren nan’s dissent in Celotex, and requiring the m ovant to m ake an affirm ative presentation to n egate the non m ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision , the m ajority and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 32 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 28 8 – 89 (198 0 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 33 Celotex, 477 U.S. at 332– 33. 34 Id. 35 Celotex, 477 U.S. at 332– 33, 333 n.3. 36 Id.; see also First N ational Bank of Arizona, 391 U.S at 289. 5 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. 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 evidence supports the 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.’”37 LAW AN D AN ALYSIS The J ones Act provides a seam an with a cause of action against his em ployer for injuries sustained as a result of his em ployer’s negligen ce. 38 A seam an m ay recover dam ages under the J ones Act if his em ployer’s negligence was the legal cause, in whole or in part, of his injury. 39 At trial, Luwisch m ust establish that AMC had a duty to provide him a reasonably safe place to work, AMC breached that duty, and AMC’s negligen ce caused his injuries. Luwisch bears a “featherweight” burden of proof to establish causation for a J ones Act negligence claim and need only show that his em ployer contributed to his injuries “in the slightest degree.” 40 Indepen dent from a J ones Act claim , a seam an m ay claim his injuries were caused by the unseaworthiness of a vessel under general m aritim e law. A vessel is deem ed unseaworthy if a condition of the vessel presents an unreasonable risk of harm to the seam an. 41 The two elem ents of an unseaworthiness claim are: (1) the vessel or the vessel’s equipm ent was not “reasonably suited for the purpose or use for which they were intended,” and (2) the “unseaworthy condition played a substantial part in bringing about 37 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) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 38 Gautreaux v. Scurlock Marine, Inc., 10 7 F.3d 331, 335 (5th Cir. 1997). 39 Id. 40 Gavagan v. United States, 955 F.2d 10 16, 10 19 (5th Cir. 1992). 41 Park v. Stockhill Boat Rentals, Inc., 492 F.3d 60 0 , 60 4 (5th Cir. 20 0 7). 6 or actually causing the injury and that the injury was either a direct result or a reasonably probable consequen ce of the unseaworthiness.” 42 A vessel owner’s duty to prevent unseaworthy conditions is absolute, continuin g, and nondelegable, and lack of knowledge or of opportunity to correct such conditions does not m itigate the owner’s duty. 43 At trial, Luwisch will bear the burden of proving: (1) the unseaworthy condition existed, and (2) the unseaworthy condition of the M/ V AMERICAN CHALLENGER was the proxim ate cause of his injuries. AMC argues it is entitled to judgm ent as a m atter of law on Luwisch’s J ones Act negligence claim and his unseaworthiness claim . 44 Rule 56 states, “The court shall grant sum m ary judgm ent if the m ovant shows that there is no genuine dispute as to any m aterial fact an d the m ovant is entitled to judgm ent as a m atter of law.” 45 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the evidence.” 46 All reasonable inferen ces are drawn in favor of the non-m oving party. 47 “The use of sum m ary judgm ent is rarely appropriate in n egligence . . . cases, even where the m aterial facts are not disputed.” 48 As the Fifth Circuit has explained: Because of the peculiarly elusive nature of the term “negligen ce” and the necessity that the trier of facts pass upon the reasonableness of the conduct 42 Johnson v. Offshore Exp., Inc., 8 45 F.2d 1347, 1354 (5th Cir. 198 8). This is a “proxim ate cause” standard. Id. 43 Allen v. Seacoast Products, Inc., 623 F.2d 355 (5th Cir. 1980 ). 44 The Court notes that the cases upon which AMC relies do not address n egligen ce or unseaworthiness claim s at sum m ary judgm ent. See, e.g., Gavagan v. United States, 955 F.2d 10 16 (5th Cir. 1992); Jackson v. OMI Corp., 2465 F.3d 525 (5th Cir. 20 0 1); Muham m ad v. Diam ond Offshore Co., 20 0 2-0 172 (La. App. 3 Cir. 7/ 10 / 0 2), 822 So. 2d 869. 45 F ED . R. CIV. P. 56(a). 46 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.20 0 8 ); see also Reeves v . Sanderson Plum bing, Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 47 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir.1994). 48 Davidson v. Stanady ne, Inc., 718 F.2d 1334, 1338– 39 (5th Cir. 1983) (citing M arsden v. Patane, 380 F.2d 489, 491 (5th Cir. 1967); Gross v. Southern Railw ay Co., 414 F.2d 292, 296 (5th Cir. 1969); Croley v. Matson N avigation Co., 434 F.2d 73, 75 (5th Cir. 1970 ); King v. Avtech Aviation, Inc., 655 F.2d 77, 78 (5th Cir. 1981); 10 A Wright, Miller & Kane, Federal Practice and Procedure § 2729 at 195 (1983)). 7 in all the circum stances in determ ining whether it constitutes negligence, it is the rare personal injury case which can be disposed of by sum m ary judgm ent, even where the historical facts are concededly undisputed. 49 Thus, a court will grant sum m ary judgm ent in a negligence case only in “rare circum stances.” 50 This reasoning is particularly applicable to J ones Act cases. “Because of the policy of providing an expansive rem edy for seam en, subm ission of J ones Act claim s to a [factfinder] requires a very low evidentiary threshold; even m arginal claim s are properly left for [factfinder] determ ination.” 51 “Sum m ary judgm ent is rarely granted in m aritim e negligence cases because the issue of whether a defendant acted reasonably is ordinarily a question for the trier of fact.” 52 In this case, the sum m ary judgm ent record suggests a factfinder could reasonably find that AMC was n egligent, and that AMC’s negligent actions or inactions contributed to Luwisch’s injuries “in the slightest degree.”53 In his deposition, Luwisch testified that the rope was a tripping danger: “it’s not supposed to be in the walkway, that’s for sure . . . it is definitely a big hazard in front of a walkway.”54 The photographs attached to AMC’s m otion corroborated Luwisch’s account, clearly showing that the rope obstructed the path from the ladder to the top deck. 55 AMC seem s to concede this point its discussion of the 49 Gauk v. Meleski, 346 F.2d 433, 437 (5th Cir. 1965). Davidson, 718 F.2d at 1339 & n.8 (“In tort actions in which determ inations of a less “elusive nature,” such as the existence of an agency relationship, waiver, or whether a plaintiff is in a class protected by a statute, are dispositive, sum m ary judgm ent m ay m ore often be appropriate.” (citing 10 A Wright, § 2729 at 197– 20 1)); see also Keating v. Jones Developm ent of Mo., Inc., 398 F.2d 10 11, 10 15 (5th Cir. 1968) (“Negligence is a seldom enclave for trial judge finality. Negligence is a com posite of the experiences of the average m an and is thus usually confined to jury evaluation .”). 51 Leonard v. Exxon Corp., 581 F.2d 522, 524 (5th Cir. 1978) (citing Barrios v. La. Construction Materials Co., 465 F.2d 1157, 1162 (5th Cir. 1972)). 52 Schoenfeldt v. Schoenfeldt, No. 13-5468, 20 14 WL 1910 80 8 , at *3 (W.D. Wash. May 13, 20 14) (citing Christensen v . Georgia– Pacific Corp., 279 F.3d 80 7, 8 13 (9th Cir. 20 0 2)). 53 Gavagan, 955 F.2d at 10 19. 54 R. Doc. 31-3 at 16. 55 R. Doc. 31 at 4. 50 8 “open an d obvious” condition of the rope, asserting, “clim bing on [the] top deck an d im m ediately noticing rope in the walkway of the deck was on obvious hazard even to an ordinary laym an.”56 Based on the record, the Court finds a reasonable factfinder could infer that the placem ent of the rope and/ or boards on the top deck was negligent, and that this placem ent caused Luwisch to trip and fall to the second deck of the vessel. 57 Further, m uch of AMC’s argum ent relies on the proposition that Luwisch was prim arily at fault for his own injuries. 58 Like negligence generally, determ inations of com parative fault are better left to the factfinder at trial. 59 With respect to Luwisch’s unseaworthiness claim , the parties agree that the rope was stored on the top deck in a m anner that created a tripping hazard. However, it is disputed whether storing the rope and/ or boards in this m anner m ade the M/ V AMERICAN CHALLENGER unfit for the vessels’ inten ded purpose. Courts have found that im properly wound or stored rope m ay constitute an unseaworthy condition. 60 This inquiry is fact intensive and requires the jury to balance m any factors—for exam ple, how long the rope had been stored in this m anner, and whether access to the top deck was necessary for operating the ship in accordance with its intended use. Further, should the jury find the failure to properly store the rope and/ or boards was unreasonable, the jury m ust then determ ine whether the im proper storage of the rope and/ or boards “played a 56 R. Doc. 31 at 13. The Court notes that Defendant’s argum ent that the condition of the rope was “open and obvious” is unavailing, as Plaintiff’s negligence claim is not based on a failure-to-warn theory. Cf. Patterson v. Allseas USA, Inc., 20 0 5 WL 1350 594 (5th Cir. 20 0 5). 57 See Leonard, 581 F.2d at 524. 58 Com parative fault is applicable to J ones Act n egligence cases. See Gautreaux, 10 7 F.3d at 339. 59 See Mott v. Pearl River N avigation, 20 0 4 WL 1615593 (E.D. La. J uly 16, 20 0 4) (“Even if all of the defendant’s assertions are accepted they do not provide a basis for sum m ary judgm ent, but instead are argum ents to the finder of fact for the assessm ent of com parative fault.”). 60 See, e.g., Turn er v. N iagara Frontier Transp. Auth., 748 F. Supp. 80 , 84 (W.D.N.Y. 1990 ) (“In the present case, the alleged circum stances of unseaworthiness—im properly coiled rope, un guarded open hatch, lack of lightin g—were not one-tim e acts of a n egligent em ployee, but conditions of the ship”). 9 substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequen ce of the unseaworthiness.” 61 “[C]ausation under this definition is still a fact-intensive inquiry, and sum m ary judgm ent is sim ilarly inappropriate at this tim e.”62 Accordingly; CON CLU SION For the foregoing reasons, IT IS ORD ERED that Defendant Am erican Marine Corporation’s m otion for partial sum m ary judgm ent on the issues of J ones Act negligence and unseaworthiness 63 is hereby D EN IED . N e w Orle a n s , Lo u is ian a, th is 18 th d ay o f Ju n e , 2 0 18 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 61 Mitchell v. Traw ler Racer, Inc., 362 U.S. 539, 550 (1960 ). This is a “proxim ate cause” standard. Alverez v. J. Ray McDerm ott & Co., 674 F.2d 10 37, 10 42– 44 (5th Cir. 1982). 62 In re Crew boats, Inc., 20 0 3 WL 210 188 58 , at *2. 63 R. Doc. 31. 10
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