Robie v. Southern Marine Construction Company et al

Filing 130

MEMORANDUM OPINION & ORDER: 1) Pltf's Motion to Alter, Amend, or Vacate 127 is denied. For this reason, the Court will not consider the affidavits of Kenneth Robie and Larry Liberatore (Docs. #127-1, 127-2). Signed by Judge David L. Bunning on 4/15/2013.(ECO)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 10-7-DLB-CJS
KENNETH ROBIE

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

SOUTHERN MARINE
CONSTRUCTION COMPANY, ET AL.

DEFENDANT

*****************
On January 17, 2013, the Court entered its Memorandum Opinion & Order granting
Defendant Southern Marine Construction Company’s Motion for Summary Judgment (Doc.
# 125). Plaintiff Kenneth Robie now moves the Court to alter, amend or vacate its Order
pursuant to Federal Rule of Civil Procedure 59(e) because this Court failed to consider
genuine disputes as to issues of material fact and considered an issue sua sponte. (Doc.
# 127). Plaintiff’s motion has been fully briefed (Docs. # 128, 129), and is thus ripe for
consideration. For the reasons set forth below, Plaintiff’s motion is DENIED.
I.

STANDARD OF REVIEW
Rule 59(e) is intended to allow the district court to correct its own errors, sparing the

parties and appellate courts the burden of unnecessary appellate proceedings. Gritton v.
Disponett, 332 F. App’x 232, 238 (6th Cir. 2009). “Rule 59(e) motions serve a limited
purpose and should be granted for one of three reasons: (1) because of an intervening
change in controlling law; (2) because evidence not previously available has become

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available; or (3) because it is necessary to correct a clear error of law or prevent manifest
injustice.” Id. (quoting General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local
No. 957 v. Dayton Newspapers, Inc., 190 F.3d 434, 445 (6th Cir. 1999)). They should not
be granted based on legal arguments or evidence that the movant failed to raise prior to
the original entry of judgment. Dayton Newspapers, Inc., 190 F.3d at 445; Martinez v.
McGraw, No. 3:08-0738, 2010 WL 1493846, at *2 (M.D. Tenn. Apr. 14, 2010).
II.

ANALYSIS
Plaintiff alleges that the Court erred in concluding that there was no evidence that

Southern Marine qua vessel owner breached any Scindia duty. Specifically, Plaintiff
contends that the Court erred in the following ways: (1) by sua sponte raising the issue of
whether the condition of the plywood flooring was the kind of hazard that an expert and
experienced construction company and its workers should have reasonably been expected
to cope with safely during the course of performing its operations; (2) by ignoring evidence
that the condition was the kind of hazard that an expert and experienced construction
company and its workers would not reasonably have been expected to cope with safely
during the course of performing its operations; (3) by ignoring evidence that Plaintiff was
doing vessel-related tasks during the Mountaineer project; (4) by ignoring evidence that
Plaintiff was doing vessel-related tasks during the Lonestar project and at the time of his
injury; (5) by concluding that Southern Marine qua vessel owner provided an alternative
location for Plaintiff to store the welding leads; and (6) by concluding that there is no
evidence that any of the personnel working on the barge were engaged in seafaring work.
Each of these arguments will be addressed in turn.

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1.

The Court did not sua sponte raise the issue of whether the
condition of the plywood flooring was the kind of hazard that an
expert and experienced construction company and its workers
should have reasonably been expected to cope with safely
during the course of performing its operations

In its Memorandum Opinion and Order (“Opinion”), the Court primarily granted
Southern Marine’s request for summary judgment because Plaintiff failed to make his
“additional showing” that the condition of the flooring was such that an expert and
experienced construction company and its workers would not be able by the exercise of
reasonable care to carry on its operations with reasonable safety to persons and property.
(Doc. # 125, at 11-19). This does not mean, though, that the Court raised the issue sua
sponte.
At the outset, the Court notes that Southern Marine raised this issue at multiple
points in its initial motion and reply. For instance, in moving for summary judgment,
Southern Marine generally argued that it did not breach any duty in its vessel capacity and
then asserted as follows:
A vessel-owner is not obligated to provide a vessel that is completely free
from hazards, nor is the vessel-owner strictly liable to harbor-workers for
unseaworthy conditions. To the contrary, Scindia held that a vessel-owner
owes longshoremen and harbor-workers the turn-over duty to exercise
ordinary care under the circumstances to have the vessel and its equipment
in such condition that an expert and experienced longshoreman/harborworker will be able, by the exercise of reasonable care, to carry out their
operations with reasonable safety.
(Doc. # 84, at 16-17) (footnotes omitted). More particularly, in its reply brief Southern
Marine argued that “the evidence establishes that [it] satisfied its duty to turn over the
vessel in its reasonably safe condition” and that “Plaintiff wants to improperly expand the
turn-over duty to create unlimited and continuing liability for any allegedly hazardous
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condition on the barge.” (Doc. # 103, at 15). These arguments were made after Southern
Marine again outlined the applicable standard of care. (Id. at 14).
Setting aside Southern Marine’s briefing, both parties conceded during oral
argument that they were disputing the first responsibility placed on vessel owners by the
turnover duty, i.e., the responsibility of safe condition. This responsibility, of course, is the
responsibility to turn over the ship in such condition that an expert and experienced
employer can carry on operations with reasonable safety to persons and property. Based
upon this concession and undisputed definition, the dispute between the parties must have
been whether the condition of the plywood flooring was such that an expert and
experienced employer could carry on operations with reasonable safety to persons and
property in spite of that condition.
Although the reasons set forth above resolve Plaintiff’s first argument, one related
matter deserves further comment. Because Plaintiff believes the Court raised this issue
sua sponte, Plaintiff attached the affidavits of himself and his expert witness, Larry
Liberatore, and requested the Court to consider them as additional evidence. (Docs. #
127-1, 127-2). These affidavits need not be considered, as the Court has rejected
Plaintiff’s justification in support thereof.
2.

The Court did not ignore evidence that the condition of the
plywood flooring was the kind of hazard that an expert and
experienced construction company and its workers would not
reasonably have been expected to cope with safely during the
course of performing its operations

In addition to the affidavits, Plaintiff points to various testimony already included in
the record that he believes satisfies the “additional showing” necessary to establish a

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breach of the turnover duty. (Doc. # 125, at 19). This includes his own testimony, as well
as that of his expert witness, Larry Liberatore, and one of his supervisors, Jim Davis.
Plaintiff first asserts that Liberatore testified that Southern Marine qua vessel owner
violated three specific OSHA standards. According to Plaintiff, these standards are
important because they establish the standard of care a vessel owner should follow in
turning over its ship. In support of this argument, Plaintiff points to excerpts from the Ninth
Circuit’s decisions in Ollestad v. Greenville S.S. Corp., 738 F.2d 1049 (9th Cir. 1984) and
Subingsubing v. Reardon Smith Line, Ltd., 682 F.2d 779 (9th Cir. 1982), as well as the
Sixth Circuit’s decision in Williams v. J.I. Case Co., No. 91-5706, 1992 WL 111809 (6th Cir.
May 22, 1992) and the United States District Court for the District of Maryland’s decision
in McGann v. Compania De Navegacio Maritima Netumar, 586 F. Supp. 1568 (D. Md.
1984).
In its prior Opinion, the Court acknowledged that Liberatore “testified that the
condition of the basement violated the [OSHA] regulation pertaining to the structural
integrity of walking or working surfaces at construction sites.”1 (Doc. # 125, at 17); (Doc.
# 77-1, at 78-80, 90-92).

However, as pointed out in the Opinion, “Liberatore

acknowledged that his opinion was limited to whether the condition violated an OSHA
regulation; it was not a ‘big picture best practice type of analysis.’” (Doc. # 125, at 17);
(Doc. # 77-1, at 104). Moreover, the Court did not comment on the other two OSHA
standards vaguely referred to by Plaintiff because he only pointed the Court to the portion

1

This regulation provides that "[t]he employer shall determine if the walking/working
surfaces on which its employees are to work have the strength and structural integrity to support
employees safely. Employees shall be allowed to work on those surfaces only when the surfaces
have the requisite strength and structural integrity." 29 C.F.R. § 1926.501(a)(2).

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of testimony in which Liberatore testified that the condition violated the walking/working
surfaces regulation, and he has not more specifically pinpointed that testimony in moving
the Court to alter, amend or vacate.
Besides acknowledging Liberator’s testimony, the Court also referenced almost all
of the cases now relied upon by Plaintiff in “assum[ing], without deciding, that the OSHA
regulations apply to Southern Marine qua vessel owner.”2, 3 (Doc. # 125, at 17 & n.5).
“However, even making that assumption and viewing the evidence in the light most
favorable to Plaintiff”–including Liberator's testimony–the Court concluded that “he has
failed to provide any evidence that Southern Marine qua vessel owner acted unreasonably
under the circumstances presented.” (Doc. # 125, at 17-18).
The Court, then, did not ignore Liberator's testimony, and Plaintiff has failed to
explain how the Court committed a clear error of law. The Court simply does not agree with

2

Admittedly, in referencing Williams, the Court did not repeat the Sixth Circuit’s assertion
that "compliance with safety codes and standards may be probative of a manufacturer's standard
of care." 1992 WL 111809, at *2, n.4 (citation omitted) (internal quotations and brackets omitted).
However, that case was not raised until the oral argument, and it concerns manufacturers–not
vessel owners.
3

Plaintiff failed to cite McGann in briefing either of the summary judgment motions. And
because the District of Maryland reached its decision in McGann on June 15, 1984, the law
announced therein was certainly well-settled while the summary judgment motions were being
briefed. As a result, Plaintiff cannot now rely on McGann to raise an argument he should have
raised in briefing the motions. Martinez, 2010 WL 1493846, at *2. Instead, Plaintiff’s reliance on
McGann can only entitle him to relief under Rule 59(e) if the case demonstrates that the Court's
holding amounted to a clear error of law. See Gritton, 332 F. App'x at 238.
In McGann, the District of Maryland, in analyzing whether the absence of a handhold or grab
on the underside of the escape hatch trunk cover constituted a breach of any Scindia duty, stated
that “the applicable OSHA regulations envision that a solid coaming located near the head of the
ladder can serve as an adequate handhold,” and ultimately determined that there was no breach
because the ship did not violate that regulation. McGann, 586 F. Supp. at 1568, 1571. Plaintiff
argues that this rationale suggests that a violation of that regulation would at least yield an issue
of fact, if not a breach as a matter of law. This argument, of course, fails to even remotely suggest
a clear error of law, especially since McGann is not controlling authority.

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Plaintiff’s assessment of the significance of his testimony, which is an issue proper for
appellate review–not reconsideration.
With respect to Jim Davis, Plaintiff notes that the supervisor testified that he “didn’t
think it was a good idea to put the [welding] leads down [in the basement],” and that he
responded that he “didn’t want no one down [in the basement] walking around by their self”
when prompted that he “had mentioned that [he] said [he] thought it would be too
dangerous to go down there.” (Doc. # 72-1, at 32, 51). According to Plaintiff, this shows
that a Southern Marine supervisor felt that the condition of the plywood flooring was too
dangerous for an experienced harbor worker to cope with safely.4
Although the Court did not identity these portions of testimony in its Opinion, it did
note that Davis testified that Plaintiff was ultimately instructed to store the leads in the gang
box above the deck, and not to go into the basement. (Doc. # 125, at 3); (Doc. # 72-1, at
29-31, 45).

More importantly, Plaintiff’s argument again reflects a fundamental

misunderstanding of the Court’s interpretation of the turnover duty–that a dangerous
condition can be coped with by, among other things, avoiding, removing, or fixing the
condition. (Doc. # 125, at 11-19). As with Liberator's testimony, this is an issue more
proper for appellate review than reconsideration.
Finally, Plaintiff contends that his testimony shows that the condition of the flooring
was such than an expert and experienced construction company would not reasonably

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Plaintiff actually argued that the testimony shows that a Southern Marine supervisor felt
that the condition of the plywood flooring was too dangerous for an experienced longshoreman to
cope with safely, but the Court assumes he meant an experienced harbor worker because the
parties have agreed that Plaintiff was a non-stevedoring harbor worker–not a longshoreman. (Doc.
# 125, at 8 n.2).

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have been expected to cope with safely during the course of performing its operations.5
In support, he notes that he was ordered by Rodney Lemons, another supervisor, to store
the leads down in the basement. (Doc. # 69-1, at 60-61). However, the Court specifically
identified this portion of Plaintiff’s testimony in its Opinion (Doc. # 125, at 3), and reiterates
that Plaintiff’s appropriate vehicle for relief is an appeal.
3.

Plaintiff’s argument that the Court ignored evidence that he was
doing vessel-related tasks during the Mountaineer project is
without merit

Plaintiff next complains that the Court failed to address the testimony indicating that
Rodney Lemons sent him into the basement to tear up portions of the plywood flooring
during the Mountaineer project. (Doc. # 70-1, at 35-39); (Doc. # 71-1, at 20-1). According
to Plaintiff, this tends to show that he was doing vessel-related tasks during that project.
Plaintiff’s argument fails for the same reasons the Court rejected his contention that
Lemons was acting as an agent for Southern Marine qua vessel owner by sending Plaintiff
into the basement to dispose of rusted material during the Mountaineer Project:
First, it ignores that vessel owners may rely on employers to avoid exposing
their employees to unreasonable hazards, which includes remedying such
hazards. Second, even if this Court agreed with Plaintiff's characterization,
it would be counterintuitive to conclude that Lemons instructed Plaintiff to
store construction material in anything other than his construction
superintendent capacity. Lemons' earlier instruction to Plaintiff has no
bearing this analysis, especially since it was given during a previous project.
(Doc. # 125, at 23 n.10). Moreover, even if those reasons are invalid, Plaintiff has provided
no basis for reconsidering the Court’s alternative grounds entering summary judgment as

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Plaintiff actually contended that his testimony shows that the condition of the flooring was
such than expert and experienced stevedore would not reasonably have been expected to cope
with safely during the course of performing its operations, but this case involves a construction
company–not a longshoreman. See supra note 4.

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to the active control duty and the duty to intervene:
With respect to the active control duty, Plaintiff has set forth no evidence that
the basement remained under the active control of Southern Marine qua
vessel owner, or that the hypothetical company actively involved itself in the
construction project. Furthermore, as to the duty to intervene, all of the
evidence herein indicates that the basement was in its complained-of
condition prior to turnover.
(Id. at 24). This argument, then, is without merit.
4.

Plaintiff’s argument that the Court ignored evidence that he was
doing vessel-related tasks during the Lonestar project and at the
time of his injury is without merit

Besides the Mountaineer Project, Plaintiff also points to testimony that shows he was
doing vessel-related tasks during the Lonestar project and at the time of his injury. With
respect to the Lonestar project, he notes testimony indicating that he was sent down to the
basement approximately 15 to 20 times during the month he was injured (Doc. # 69-1, at
53-54), and that one of the reasons for those trips was to plug holes to keep the ship from
leaking. (Doc. # 71-1, at 30-1). As to the time of injury, Plaintiff draws the Court’s attention
to Lemons’ testimony that the construction crew was in the process of cleaning up, and that
during the morning meeting they discussed cleaning up the barge and putting everything
up and getting ready for transport. (Doc # 70-1, at 67). According to Davis’ testimony, this
included picking up the welding leads, straps, and cutting outfits, which were always
gathered and locked away over the weekend and when getting ready to transport a barge.
(Doc. # 72-1, at 34).
As with Liberator's testimony offered to show the dangerousness of the plywood
flooring, the Court simply does not agree with Plaintiff’s assessment of the significance of
this testimony, and thus will not deviate from its conclusion that Plaintiff was storing the
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welding leads pursuant to his construction duties. (Doc. # 125, at 23 & n. 9). Moreover,
as noted in the preceding section, Plaintiff has provided no basis for reconsidering the
Court’s alternative grounds entering summary judgment as to the active control duty and
the duty to intervene. (Id. at 24). This argument is also without merit.
5.

Plaintiff's argument that the Court erred concluding that
Southern Marine qua vessel owner provided an alternative
location for Plaintiff to store the welding leads is without merit

Plaintiff also takes issue with the Court’s statement that “[t]he more appropriate
question, then, is whether the vessel owner provided an alternative location to store the
leads, and the uncontested evidence in this case is that material could have been stored
in the gang box above the deck.” (Doc. # 125, at 18 n.6). According to Plaintiff, there is
no evidence that Southern Marine qua vessel owner provided an alternative location for
Plaintiff to perform his tasks. Stated differently, he argues that the evidence does not
establish that the gang box was placed on the barge by Southern Marine qua vessel owner,
or by Southern Marine in any capacity.
Assuming the Court is correctly reading his argument, Plaintiff is not contesting that
Lemons and Davis testified that Plaintiff was ultimately instructed to store the leads in the
gang box above the deck (Doc. # 125, at 3) (Doc. # 70-1, at 67-68, 76) (Doc. # 72-1, at 2931), but rather that there is no evidence that Southern Marine qua vessel owner placed that
storage device on the barge. While this may be true, it is much ado about nothing.
As reiterated earlier in this Opinion, a dangerous condition can be coped with by,
among other things, avoidance. (Doc. # 125, at 11-19). And the existence of the gang box,
whether provided by Southern Marine qua vessel owner or in some other capacity or even
by some third party, constituted a means of avoiding the basement. Any argument to the
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contrary should be presented to the Sixth Circuit.
6.

Plaintiff's argument that the Court erred in concluding that there
is no evidence that any of the personnel working on the barge
were engaged in seafaring work

Plaintiff next contests the Court’s conclusion that “there is no evidence that any of
the personnel working on the barge were ‘engaged in seafaring work.’” (Doc. # 125, at 23).
In support, he again notes Lemons’ testimony that the construction crew was in the process
of cleaning up, and that during the morning meeting they discussed cleaning up the barge
and putting everything up and getting ready for transport. (Doc # 70-1, at 67). However,
the Court already sufficiently addressed this testimony in rejecting Plaintiff’s argument that
the Court ignored evidence that he was doing vessel-related tasks during the Lonestar
project and at the time of his injury, and thus will not consider it further.
III.

PUBLIC POLICY ARGUMENT
Besides his more specific allegations of error, Plaintiff generally argues that the

Court should vacate its order as a matter of public policy because it penalizes harbor
workers for attempting to mitigate hazards that may arise in their work environment.
However, this Court is bound to adhere to Sixth Circuit precedent, which it has done. This
argument, then, merits no further consideration.
IV.

CONCLUSION
Accordingly, for all of these reasons,
IT IS ORDERED that Plaintiff’s Motion to Alter, Amend, or Vacate (Doc. # 127) is

hereby denied. For this reason, the Court will not consider the affidavits of Kenneth Robie
and Larry Liberatore. (Docs. # 127-1, 127-2).

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This 15th day of April, 2013.

G:\DATA\Opinions\Covington\2010\10-7 Order RE Mt to Reconsider.wpd

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