Burdett v. Matson Navigation Company, Inc.
Filing
157
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT 88 , DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 82 , AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE 144 . Signed by JUDGE ALAN C KAY on 1 /30/2015. MOTION to Strike, doc. 144 is Defendant Matson Navigation Company, Inc.'s Motion to Strike Plaintiff's "Separate Concise Statement of Facts in Support of Plaintiff's Reply to Defendants Opposition to her Motion for Summary Judgment" (doc 139 ) and the new evidence submitted therewith. Written Order follows January 27, 2015 hearing on the above-referenced motions. Minutes of hearing: doc no. 152 (afc)< center>CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CASSANDRA BURDETT,
) Civ. No. 13-00703 ACK-KSC
)
Plaintiff,
)
)
v.
)
)
MATSON NAVIGATION COMPANY, INC., )
)
Defendant.
)
)
ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT,
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN
PART AND DENYING IN PART DEFENDANT’S MOTION TO STRIKE
For the following reasons, the Court hereby GRANTS
Matson’s Motion for Partial Summary Judgment, DENIES Plaintiff’s
Motion for Summary Judgment, and GRANTS IN PART AND DENIES IN
PART Matson’s Motion to Strike.
FACTUAL BACKGROUND1/
This matter arises under admiralty law. Plaintiff
Cassandra Burdett (“Plaintiff”) claims she was injured while
working as a seaman aboard the vessel M/V Manoa. (Compl. ¶ 5.)
Defendant Matson Navigation Company, Inc. (“Matson”) is the owner
and operator of the M/V Manoa. (Doc. No. 10 (Answer) ¶ 3.)
On or about April 26, 2012, while working in the engine
1/
The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
room of the M/V Manoa, Plaintiff was walking up the ladder well
in the lower engine room when a portable air blower weighing
approximately 30 pounds fell over the rail from two levels above
and struck her on the head. (Id. ¶ 5; Pl.’s CSF ¶ 5.)
At the time of the incident, on the level above
Plaintiff, other members of the crew were conducting a piston
overhaul, or removing and replacing a piston using a crane.
(Def.’s CSF in Supp. of Mot., Ex. D (Atwood Depo.) at 47; Pl.’s
CSF in Supp. of Mot., Ex. D (Matthews Depo.) at 26.) Dominic
Matthews, the Junior Engineer on the M/V Manoa, testified that he
was helping to guide the piston down a walkway, and that he moved
the blower out of the way to avoid any of the crewmembers
tripping on it as they were walking backwards guiding the piston.
(Def.’s CSF in Supp. of Mot., Ex. E (Matthews Depo.) at 25-27,
46; Pl.’s CSF in Supp. of Mot., Ex. D at 25-28.) Matthews
testified that ten to twenty seconds later the blower fell over
the rail and struck Plaintiff on the head. (Pl.’s CSF in Supp. of
Mot., Ex. D at 28-29; Pl.’s CSF in Opp’n, Ex. 2.)
PROCEDURAL BACKGROUND
On December 19, 2013, Plaintiff filed her Complaint for
Personal Injury Damages against Matson. (Doc. No. 1.) In her
Complaint, Plaintiff asserts claims for negligence,
unseaworthiness, and maintenance and cure. (Id. ¶¶ 7-11.)
Plaintiff seeks a judgment against Matson in the amount of seven
2
million dollars in compensatory damages, maintenance and cure,
and other fees and costs. (Id. at 4.)
Matson filed its Answer on February 21, 2014. (Doc. No.
10.) On October 16, 2014, Plaintiff filed her Motion for Summary
Judgment, supported by a concise statement of facts and a number
of exhibits. (Doc. No. 82.) On October 22, 2014, Matson filed its
Motion for Partial Summary Judgment, also supported by a concise
statement of facts and several exhibits. (Doc. Nos. 88 & 89.) The
parties filed their memoranda in opposition, both supported by
concise statements of fact, on January 5, 2015. (Doc. Nos. 121,
122, 125, 126.) The parties filed their replies on January 13,
2015.2/ (Doc. Nos. 138, 140.) A hearing on the motions was held
2/
On January 20, 2015, Matson filed its Motion to Strike
Plaintiff’s Concise Statement of Facts in Support of Plaintiff’s
Reply and the New Evidence Submitted Therewith. (Doc. No. 144.)
On January 22, 2015, Plaintiff filed a response to the Motion to
Strike. (Doc. No. 148.) As Matson points out, in addition to her
reply, Plaintiff filed a purported “Concise Statement in Support
of Reply” along with numerous exhibits. The Local Rules neither
contemplate nor allow such filings. Indeed, Local Rule 7.4
expressly states that a reply “must respond only to arguments
raised in the opposition,” and that “[a]ny argument raised for
the first time in the reply shall be disregarded.” Further, Local
Rule 56.1(h) specifically states that “[a]ffidavits or
declarations setting forth facts and/or authenticating exhibits,
as well as exhibits themselves, shall only be attached to the
concise statement. Supplemental affidavits and declarations may
only be submitted with leave of court.” Plaintiff did not seek or
receive permission from the Court to file additional affidavits,
declarations, or exhibits outside of those attached to her
concise statements of facts in support of her motion and in
opposition to Matson’s motion. Thus, Plaintiff’s Concise
Statement of Facts in Support of Reply, as well as the additional
exhibits attached to it, were all filed in clear violation of the
(continued...)
3
on January 27, 2015.
STANDARD
Summary judgment is appropriate when a “movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The central issue is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
2/
(...continued)
Local Rules. It appears, however, that the only exhibits attached
to Plaintiff’s Reply that were not included in her previous
filings are Exhibits 4 and 11, the depositions of Jeffrey Booth
and Captain Thomas Apperson, respectively. Because the other
exhibits attached to Plaintiff’s Reply were previously filed and
provided to Matson, the Court finds no prejudice to Matson in
permitting them to be re-filed. The Motion to Strike is therefore
DENIED as to those exhibits. As to Exhibit 11, the deposition of
Captain Apperson, during the hearing on the instant motions the
Court granted Matson leave to present to the Court any additional
portions of Apperson’s deposition Matson believed were relevant
to rebut Plaintiff’s Exhibit 11. Plaintiff’s counsel did not
object to the Court viewing this additional evidence, and Matson
timely filed the deposition testimony on January 28, 2015. (Doc.
No. 153.) Thus, there is no prejudice to either party in the
Court’s consideration of Plaintiff’s Exhibit 11. The Motion to
Strike is therefore DENIED as to that exhibit. Finally, as to
Exhibit 4, the deposition testimony of Mr. Booth, the Court
GRANTS Matson’s Motion to Strike as to this exhibit. Matson did
not have an opportunity to respond to this new evidence and will
therefore be prejudiced should Plaintiff be permitted to file it
with her Reply. On January 28, 2015, after the hearing on the
instant motions, Plaintiff made a supplemental filing of a
verified transcript of the Booth deposition. (Doc. No. 154.) The
Court will therefore strike that document as well. In sum, the
Court will strike Exhibit 4 to Plaintiff’s Concise Statement of
Facts in Support of Plaintiff’s Reply, along with any portions of
Plaintiff’s Concise Statement of Facts in Support of Plaintiff’s
Reply that rely upon that exhibit. The Court also strikes in its
entirety Plaintiff’s January 28, 2015 filing, (Doc. No. 154.)
Matson’s Motion to Strike is therefore GRANTED IN PART AND DENIED
IN PART.
4
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986).
The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that
burden has been met, the nonmoving party must then come forward
and establish the specific material facts in dispute to survive
summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588 (1986). The Court must draw all
reasonable inferences in favor of the nonmoving party. Id. at
587.
In supporting a factual position, a party must “cit[e]
to particular parts of materials in the record . . . or show[]
that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 585. “[T]he requirement is that there be
no genuine issue of material fact . . . . Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 247–48 (emphasis in original).
5
DISCUSSION
The instant motions both address Plaintiff’s claim of
unseaworthiness; both parties argue that they are entitled to
judgment as a matter of law on Plaintiff’s claim that her
injuries were the result of the M/V Manoa’s unseaworthy
condition. In addition, Plaintiff seeks judgment as a matter of
law that she was not contributorily negligent. The Court
addresses each issue in turn.
I.
Unseaworthiness
The admiralty doctrine of unseaworthiness is a form of
strict liability that requires the owner of a vessel to ensure
that a vessel and its appurtenant equipment and appliances are
“reasonably fit for her intended service.” Usner v. Luckenbach
Overseas Corp ., 400 U.S. 494, 499 (1971); see also Seas Shipping
Co. v. Sieracki, 328 U.S. 85, 90 (1946). “A shipowner has an
absolute duty to furnish a seaworthy ship.” Ribitzki v. Canmar
Reading & Bates, Ltd. P’ship, 111 F.3d 658, 664 (9th Cir. 1997),
as amended on denial of reh’g and reh’g en banc (June 5, 1997),
amended on reh’g en banc sub nom. Ribitzki v. Canmar Reading &
Bates, Ltd., 1997 WL 34580081 (9th Cir. June 5, 1997) (citing
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960)). As
such, “a shipowner’s actual or constructive knowledge of an
unseaworthy condition is not essential to its liability.” Id.
To establish a claim for unseaworthiness, a plaintiff
6
must demonstrate that: “(1) the warranty of seaworthiness
extended to him and his duties; (2) his injury was caused by a
piece of the ship’s equipment or an appurtenant appliance; (3)
the equipment used was not reasonably fit for its intended use;
and (4) the unseaworthy condition proximately caused his
injuries.” Id. at 664-65.
Here, as to the first two prongs of the test, they
appear to be satisfied. Matson does not dispute that Plaintiff
was a seaman at the time she was injured, and thus entitled to
the warranty of seaworthiness. (See Pl.’s CSF in Supp. of Mot.
¶¶ 1,4; Def.’s CSF in Opp’n ¶¶ 1, 4.) The parties likewise do not
appear to dispute that Plaintiff was injured when a portable air
blower fell and hit her on the head, and that the air blower
constituted “a piece of the ship’s equipment or an appurtenant
appliance.” (Pl.’s CSF in Supp. of Mot. ¶ 5; Def.’s CSF in Opp’n
at ¶ 5.)
As to the third prong of the test, Plaintiff argues
that the M/V Manoa was not reasonably fit for its intended use
because Matson “fail[ed] to require the crew to properly secure
equipment aboard the vessel in order to promote safe and
seaworthy conditions.” (Pl.’s Mot. at 7.) Plaintiff asserts that
the placement of the air blower too close to the ladder well and
the failure to properly secure it rendered the vessel
unseaworthy. (Id.) Matson counters that Plaintiff has failed to
7
identify any evidence to support her claim that there was an
unsafe condition or practice on the M/V Manoa. (Def.’s Mot. at
9.) Rather, Matson argues, Plaintiff’s injuries were, at the
most, the possible result of the isolated negligence of a
crewmember and, thus, cannot support a claim for breach of the
warranty of seaworthiness. (Id.)
In order to prevail on a claim for unseaworthiness, the
plaintiff must show that the vessel owner has failed to supply a
vessel or vessel appurtenances that are reasonably fit for their
intended use. Usner, 400 U.S. at 499. Apart from the physical
condition of the vessel, an unsafe method of work can render a
vessel unseaworthy. Id. However, the Supreme Court has stated
that an “isolated, personal negligent act” is not sufficient to
give rise to a claim for unseaworthiness because that would
“subvert the fundamental distinction between unseaworthiness and
negligence.” Id. at 500. Thus, a crewmember’s “single and wholly
unforeseeable” act of negligence is not sufficient to give rise
to liability of the shipowner for unseaworthiness. Id.
Unseaworthiness is a condition which must be established with
more than a single act. Id. at 498, 500.
Here, there is no dispute as to the material facts
relevant to Plaintiff’s unseaworthiness claim. The parties agree
that Plaintiff was working in the engine room at the time of the
accident, that Mr. Matthews moved the air blower out of the way
8
of the crewmembers working above and placed it on the side of the
walkway, and that approximately ten to twenty seconds later the
air blower fell over the side of the walkway, down the ladder
well, and struck Plaintiff on the head. (See Pl.’s CSF in Opp’n
¶ 3; Def.’s CSF in Opp’n ¶¶ 20-23.) The parties do, however,
dispute whether Mr. Matthews’s act of placing the air blower on
the side of the walkway and not tying it down constituted a
single negligent act, or gave rise to a condition of
unseaworthiness on the M/V Manoa. The Court concludes that it was
the former.
In Usner v. Luckenbach Overseas Corp., the United
States Supreme Court addressed the question of whether a
longshoreman injured when a fellow longshoreman lowered a cargo
sling too far and too fast could bring a claim for
unseaworthiness against his employer.3/ The Usner Court answered
in the negative, distinguishing between a “single and wholly
unforeseeable act of negligence” and “the condition of the ship.”
400 U.S. at 500. The Court noted that “[n]either before nor after
[the sling accident] was any difficulty experienced with the
3/
The Usner Court noted the existence of a circuit split on
the issue of whether so-called “instant unseaworthiness”
resulting from an act of negligence on the part of a crewmember
is a basis for recovery under the maritime doctrine of
unseaworthiness. Id. at 497 n.2 (citing, e.g., Tim v. American
President Lines, Ltd., 409 F.2d 385, 390-92 (9th Cir. 1969)
(rejecting “instant unseaworthiness” and requiring that
unseaworthiness be based upon “an existing condition”)).
9
winch, boom, fall, sling, or any other equipment or appurtenance
of the ship or her cargo.” Id. at 495. The Court thus concluded
that it was the “isolated, personal negligent act of the
petitioner’s fellow longshoreman,” rather than a condition of the
ship, that caused the plaintiff’s injuries. Id. at 500. Thus, the
plaintiff could not prevail on a claim for unseaworthiness.
Courts subsequently applying Usner in assessing claims
for unseaworthiness have therefore drawn a distinction between a
single negligent act, and a series of negligent acts “of such a
character or that continue for such a length of time that they
become related to the status of the vessel.” Robinson v. Showa
Kaiun K.K., 451 F.2d 688, 690 (5th Cir. 1971); see also, e.g.,
Ryan v. Pac. Coast Shipping Co., Liberia, 509 F.2d 1054, 1057 n.6
(9th Cir. 1975) (“[A] condition of unseaworthiness must consist
of more than one act and last longer than a few seconds or
minutes.”); Edynak v. Atlantic Shippin Inc. Cie. Chambon Maclovia
S.A., 562 F.2d 215, 224 (3rd Cir. 1977) (“Although the difference
Usner draws between an act and a condition is difficult to apply
in practice, we can make two explanatory observations. First, the
distinction is in part temporal: an act occurs instantaneously,
whereas there must be some period of time during which a
condition exists. Second, a condition necessarily consists of
more than one act.” (internal citations omitted)); Kyzar v. Vale
Do Ri Doce Navegacai, S.A., 464 F.2d 285, 290-91 (5th Cir. 1972)
10
(same).
Here, Plaintiff has produced no evidence of previous
accidents involving portable air blowers either being placed too
close to ladder wells, or causing injury because they are not
tied down.4/ (See generally Pl.’s CSF in Supp. of Mot.; Pl.’s CSF
in Opp’n.) Nor has she identified any evidence suggesting that
crewmembers had a general practice of placing air blowers too
close to ladder wells or failing to tie them down. (Id.) Indeed,
Plaintiff herself admitted in deposition testimony that she is
unaware of any prior incidents involving air blowers. (See Def.’s
CSF in Opp’n, Ex. A (Plaintiff’s Depo.) at 60:2-10.) Thus,
Plaintiff has failed to identify any evidence to suggest that the
accident that caused her injury was anything more than a single,
isolated instance of an unsecured air blower being placed too
close to a ladder well. See Usner, 400, U.S. 495, 500; see also
4/
The Court notes that Plaintiff’s filings on the instant
motions appear to assert that unseaworthiness resulted from both
the placement of the air blower and the fact that it was not tied
down; however, during the hearing Plaintiff’s counsel focused
only on the placement of the air blower. When the Court
questioned Matson’s counsel as to the tie-down issue, he
responded that, because the failure to tie down the air blower
was a single negligent act and there is no evidence of other
similar incidents, it did not give rise to an unseaworthy
condition. Notwithstanding this exchange, during his rebuttal
argument Plaintiff’s counsel again entirely failed to address the
claim regarding the failure to tie down the air blower. It is
unclear to the Court whether Plaintiff is abandoning this theory;
however, even assuming Plaintiff is still asserting an
unseaworthiness claim based upon the failure to tie down the air
blower (in addition to her claim regarding its placement), for
the reasons discussed herein, such a claim must fail.
11
Robinson, 451 F.2d at 690 (“If the negligent act . . . is not
part of any congeries of negligent acts connected to the status
of the vessel or to its loading but is rather an isolated
“instantaneous” act of negligence within an otherwise seaworthy
method of loading on an otherwise seaworthy vessel, then that one
act of negligence . . . will not render the vessel
unseaworthy.”); Ryan, 509 F.2d at 1056 (finding no unseaworthy
condition where the action that caused the plaintiff’s injury
“had not occurred before and did not occur again” and, thus,
could not be said to constitute a condition of the ship).5/
Further, the facts suggest that the air blower was left
5/
Plaintiff quotes Robbins v. Aleutian Queen Seafood, Inc.,
15 F.3d 1089 (9th Cir. 1994) (unpublished mem. disp.), for the
proposition that “liability attaches if an act leaves the vessel
in an unsafe condition subsequently resulting in injury but does
not if the act and resulting injury are simultaneous.” (Pl.’s
Reply at 9 (quoting Robbins, 15 F.3d at 1089). Further, at the
hearing on the instant motions, Plaintiff’s counsel argued that
Robbins, which was issued in 1994, represented a modification of
the unseaworthiness analysis articulated by the Ninth Circuit in
Ryan in 1975. As an initial matter, the Court notes that Robbins
is an unpublished disposition issued prior to January 1, 2007,
which may not be cited as precedent. See Fed. R. Ap. P. 36-3.
Even if Robbins had precedential value, however, it is not
contrary to the Ninth Circuit’s decision in Ryan. Directly after
the language Plaintiff quotes, the Robbins court continued its
analysis by noting that there was no evidence to support a
“factual finding that it was the established practice” of crane
operators on the ship to misuse the crane. 15 F.3d at 1089. Thus,
the Robbins court recognized that, regardless of whether the
injury was instantaneous or happened shortly after the negligent
act, if there is no evidence of an established practice of
negligence (in the form, for example, of prior similar
accidents), there is no condition of unseaworthiness. Id.
Plaintiff’s arguments based on Robbins are therefore
unpersuasive.
12
in place for only approximately ten to twenty seconds after Mr.
Matthews placed it on the side of the walkway, before it fell.
(Def.’s CSF in Opp’n, Ex. C (Matthews Depo.) at 28:8-13; Pl.’s
CSF in Opp’n, Ex. 2 (Matthews Decl.).) Particularly in light of
the fact that no similar accidents had occurred previously, it
defies logic to conclude that the air blower’s placement (and the
fact that it was not tied down) became a condition of the ship
during the mere ten to twenty seconds that it stayed in place
before falling. See, e.g., Ryan, 509 F.2d at 1057 n.6 (“The very
words ‘unseaworthy condition’ suggest that there must be some
period of time during which the condition exists. For example, in
cases involving injuries sustained by a longshoreman when part of
a ship’s cargo has fallen on him, courts have generally refused
to allow recovery if the accident occurred soon after the cargo
was stowed.” (citing cases)); Smith v. Olsen & Ugelstad, 324 F.
Supp. 578 (D. Mich. 1971), affd., 459 F.2d 915 (6th Cir.), cert.
denied, 409 U.S. 1040 (1972) (finding no unseaworthy condition
where the negligent unloading of crates in the ship’s hull left a
crate in an unsteady position for approximately thirty seconds
before it fell and injured the plaintiff).
Mr. Matthews’s act of setting down the unsecured air
blower and the blower’s subsequent fall appear to have both been
part of the same single incident that gave rise to Plaintiff’s
alleged injuries; in other words, Plaintiff’s injuries were the
13
almost immediate consequence of Mr. Matthews’s act. (See Def.’s
CSF in Opp’n, Ex. C at 28:8-13; Pl.’s CSF in Opp’n, Ex. 2.) In
such a circumstance, it cannot be said that the positioning of
the unsecured air blower constituted a condition of the ship. See
Ryan, 509 F.2d at 1057 (“To convert this single negligent act
into an unseaworthy condition is to play a game with words.”).
Unseaworthiness is a condition, and must be established
with more than a single act. Usner, 400 U.S. at 498, 500; Ryan,
509 F.2d at 1057. After a careful review of all of the evidence
properly before it, the Court must conclude that Plaintiff has
failed to demonstrate that her injuries arose from an unseaworthy
condition, rather than a single, isolated negligent act.6/ While
the accident is indeed regrettable, it cannot be said to have
been caused by a condition of the ship or her appurtenances. The
Court therefore DENIES Plaintiff’s Motion for Summary Judgment as
to her unseaworthiness claim, and GRANTS Matson’s Motion for
Partial Summary Judgment.
II.
Contributory Negligence
Plaintiff also seeks judgment as a matter of law that
she was not contributorily negligent in the instant case.
6/
The Court notes that, in so holding, it expresses no
opinion as to whether Mr. Matthews did, in fact, act negligently.
Any such allegations of negligence are not before the Court on
the instant motions. The Court merely concludes that, to the
extent any negligence was involved in Plaintiff’s accident, it
was an isolated incident, and did not constitute a condition of
the ship itself.
14
Maritime law has long applied the rule of comparative fault in a
seaman’s unseaworthiness action against a shipowner. Knight v.
Alaska Trawl Fisheries, Inc., 154 F.3d 1042, 1047 (9th Cir.
1998), as amended (Oct. 14, 1998) (citing Pope & Talbot, Inc. v.
Hawn, 346 U.S. 406, 409 (1953)). Contributory negligence is not a
complete defense to common law admiralty claims, but is a factor
to be taken into consideration in mitigation of damages. Id.
Contributory negligence will mitigate damages when a seaman is
injured if “alternative courses of action are available to the
injured party, and he chooses the unreasonable course.” Simeonoff
v. Hiner, 249 F.3d 883, 888-89 (9th Cir. 2001) (internal
quotation marks and citations omitted); see also Vacuum Oil Co.
v. Smith, 305 U.S. 424, 432-33 (1939) (contributory negligence is
proper if a seaman “knowingly failed to choose an available safe
method of doing his [or her] work”).
In support of her contention that there is no question
of fact as to contributory negligence, Plaintiff points to the
following evidence: (1) the deposition testimony of Vincent
Atwood, chief engineer on the M/V Manoa, that Plaintiff was
“doing exactly what she was supposed to be doing” at the time of
the accident, (Pl.’s CSF in Supp. of Mot., Ex. E (Atwood Depo.)
at 90); (2) Plaintiff’s testimony that Matson only requires
employees to wear hard hats while they are on deck. (Pl.’s CSF in
Supp. of Mot., Ex. B (Plaintiff’s Depo.) at 61); and (3) the
15
statements in Matson’s Personnel Injury and Root Cause Checklist,
which was completed and signed by the captain of the ship,
Captain Apperson. (Pl.’s CSF in Opp’n, Ex. 7.)
Matson counters that Mr. Atwood’s testimony is
insufficient because he was not present at the scene and thus did
not witness the accident, and that Plaintiff cannot rely on her
own self-serving testimony to support a finding that she was not
contributorily negligent. (Def.’s Opp’n at 14-15.) Moreover,
Matson asserts, just because hard hats were not required does not
mean that Plaintiff was not negligent in failing to wear one as
she was climbing out of the engine room while a piston removal
was taking place above her. (Id. at 15-16.)
Although it is an extremely close call, on the record
before it, the Court cannot conclude as a matter of law that
Plaintiff was or was not contributorily negligent. See, e.g.,
Flying Diamond Corp. v. Pennaluna & Co., Inc., 586 F.2d 707, 713
(9th Cir. 1978) (“[Q]uestions of negligence are usually reserved
for the factfinder[.]”). Contributory negligence is measured by
what a reasonable person would have done under similar
circumstances. Simeonoff, 249 F.3d at 889. Here, there is some
evidence indicating that Plaintiff was acting as a reasonable
person would when working in the engine room of a vessel. Mr.
Atwood, after reviewing video footage of the accident, stated
that he did not “come to any conclusions where [he] faulted Ms.
16
Burdett with doing anything inappropriately,” and that she was
“doing exactly what she was supposed to be doing.” (Pl.’s CSF in
Supp. of Mot., Ex. E (Atwood Depo.) at 90.) Moreover, Matson’s
own Personnel Injury and Root Cause Checklist states that the
“operator error” or “human factor” that caused the accident
“would appear to not be on the part of the injured party, but
rather attributed to the crew member that placed the blower too
close to the edge of the platform.” (Pl.’s CSF in Opp’n, Ex. 7 at
2.) It also states that Plaintiff was not required to be wearing
protective equipment at the time of the accident.7/ (Id. at 1.)
On the other hand, as Matson points out, there is some
evidence that a reasonable person in Plaintiff’s circumstance
would have worn a hard had. While the parties do not dispute that
Plaintiff was not required to wear a hard hat while working in
the engine room, Plaintiff did testify that hard hats were
available to her, that she was allowed to use them if she wanted
to, and that she knows that the piston removal process is
“difficult,” requires the use of a “little crane,” and “takes a
number of people.” (Def.’s CSF in Opp’n, Ex. A (Plaintiff’s Depo)
at 61, 63, 89.) Moreover, Captain Apperson testified that, while
the “loss of situational awareness” leading to the air blower
7/
This corroborates Plaintiff’s own deposition testimony
that crewmembers were not required to wear hard hats while
working in the engine room. (See Pl.’s CSF in Supp. of Mot., Ex.
B (Plaintiff’s Depo.) at 61.)
17
falling was not attributable to Plaintiff, “walking underneath
work underway is not good.” (Doc. No. 153 (Apperson Depo.) at 4243.) He also stated that hard hats were available in the engine
room “for use if they want to use a hard[ ]hat. They’re hazardous
jobs,” and that he “would assume it would be up to the
individual” as to whether to wear a hard hat in the engine room.
(Id. at 61-62.) While it appears that Plaintiff was assigned to
do her job in that particular location and, thus, had no choice
but to walk underneath the piston removal work, and although
Captain Apperson’s statements are somewhat vague, they do at
least raise a question of fact as to whether a reasonable person
in Plaintiff’s position would have worn a hard hat.
Specifically, knowing that a difficult process
requiring a small crane was going on above her, there is at least
a question of fact as to whether a reasonable person in
Plaintiff’s position would have worn one of the hard hats that
were admittedly available to her. See Simeonoff, 249 F.3d at 889
(stating that “contributory negligence is proper if a seaman
knowingly failed to choose an available safe method of doing his
or her work” (internal quotation marks and citation omitted));
DuBose v. Matson Nav. Co., 403 F.2d 875, 879 (9th Cir. 1968)
(“When a maritime worker continues to work under conditions known
to be dangerous, he may be found to be contributorily
negligent.”).
18
The Court therefore concludes that there is at least a
question of fact as to whether Plaintiff was contributorily
negligent in failing to wear a hard hat at the time of the
accident. The Court thus DENIES Plaintiff’s Motion for Summary
Judgment to the extent she seeks judgment as to the issue of
contributory negligence.
CONCLUSION
For the foregoing reasons, the Court GRANTS Matson’s
Motion for Partial Summary Judgment, DENIES Plaintiff’s Motion
for Summary Judgment, and GRANTS IN PART AND DENIES IN PART
Matson’s Motion to Strike.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, January 30, 2015
________________________________
Alan C. Kay
Senior United States District Judge
Burdett v. Matson, Civ. No. 13-00703 ACK-KSC, Order Granting Defendant’s
Motion for Partial Summary Judgment, Denying Plaintiff’s Motion for Summary
Judgment, and Granting in Part and Denying in Part Defendant’s Motion to
Strike.
19
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