Thomas et al v. Riverfront Limestone, LLC

Filing 78

MEMORANDUM OPINION signed by Senior Judge Thomas B. Russell on 3/21/2018 finding as moot 49 Motion for Summary Judgment and GRANTING 60 Motion for Summary Judgment. The Court will enter a separate Order and Judgment consistent with this Memorandum Opinion. cc: Counsel of Record(MNM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:14-CV-191-TBR-LLK
DAVID S. THOMAS AND
DOROTHY L. HARRIS,

PLAINTIFFS

KENTUCKY ASSOCIATED GENERAL CONTRACTORS,

INTERVENOR PLAINTIFF

v.
RIVERFRONT LIMESTONE, LLC,

DEFENDANT

MEMORANDUM OPINION
This matter comes before the Court on Defendant Riverfront Limestone, LLC’s,
(“Riverfront”), Motion for Summary Judgment, [R. 60]. Plaintiff David S. Thomas and Dorothy
L. Harris, (“Thomas”), responded, [R. 69], and Intervenor Plaintiff Kentucky Associated General
Contractors also responded, [R. 68]. Riverfront replied. [R. 71.] Fully briefed, this matter is now
ripe for adjudication. For the reasons stated herein, Riverfront’s Motion for Summary Judgment,
[R. 60], is GRANTED.
BACKGROUND
On a cold day in December of 2011, David Thomas, a welder and mechanic at Harold
Coffey Construction, was instructed by his supervisor, Mike Hopper, to fix a safety rail on a
barge owned by Riverfront Limestone. [R. 49-2 at 8, 74 (Thomas Depo.); R. 1 at 2 (Complaint).]
The barge in question is a single skin tank barge built in the 1960’s for transporting hazardous
and flammable liquid cargo. [R. 60-2 at 5 (Haynes Report); R. 60-3 at 8 (Smith Report); R. 60-6
at 8 (Coffey Depo.).] It was purchased in 2006 or 2007 by Riverfront and converted into a dock
for unloading cargo from barges, such as coal, lime, and clay. [R. 60-6 at 8; R. 60-4 at 2-3

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(Sanders Depo.); R. 60-5 at 20 (Williams Depo.).]1 The structure is connected to land by two
shore wires and a ramp by which trucks can drive onto the structure. [R. 60-6 at 4.] There is no
electrical, water, or sewage connection to shore. [Id.] Depending on the water level of the river,
the structure is occasionally moved by trackhoe and a cable between a low water ramp and mid
water ramp, a distance of about thirty feet. [R. 71-1 at 2 (Coffey Affidavit); R. 69-1 at 4
(Williams Depo.), 11 (Lynch Depo.), 31 (Sanders Depo.).] Approximately once a year, the
structure is moved by tugboat to a high water ramp approximately 400 feet away from the mid
water ramp. [R. 71-1 at 2.] On one occasion, due to extremely low water conditions, the structure
was dredged by the Army Corps of Engineers approximately 2000 feet to a different location.
[Id. at 2-3.] On the deck is a container and equipment for unloading barges, such as an excavator,
a Caterpillar “Bobcat,” and a diesel powered generator. [R. 60-6 at 3; R. 49-2 at 15; R. 60-2 at
7.] The deck of the structure has a safety cable system on three sides consisting of cables
threaded through stanchion pipes. [R. 49-2 at 18.] It was one of these pipes that Thomas was to
repair on the day of the incident.
Repairing the stanchions of the safety rail system was nothing new to Thomas. He
testified that he previously boarded the structure 75-100 times and repaired the stanchions about
six times. [Id. at 66-67.] On the day of the incident, Thomas pulled up to the bank of the river,
grabbed a tape measure, and walked out on the structure to evaluate the situation. [Id. at 26.] At
the time, no one else was present on deck. [Id. at 30.] Thomas noticed some stanchions that were
lying on the deck with the cables still threaded through them. [Id. at 29.] When Thomas picked
up one of the stanchions to inspect it, his feet became entangled in the cables and he fell
overboard. [Id. at 31.] Thomas testified that the initial shock of the cold water “rendered [him]

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To avoid confusion or an appearance of a decision as to whether it is a barge or a dock, the Court will refer to the
barge/dock at hand as “the structure” hereinafter.

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helpless.” [Id. at 36.] Thomas claims that he remained in the water for approximately ten
minutes. [R. 1 at 2.] During that time, Thomas alleges that “his head went under the water
several times, he ingested river water and diesel fuel, and he suffered hypothermia.” [Id.]
On October 10, 2014, Thomas filed a Complaint against Riverfront under § 905(b) of the
Longshore and Harbor Workers Compensation Act, (“LHWCA”), 33 U.S.C. § 905(b). [Id. at 34.] Riverfront file a Motion for Summary Judgment on July 19, 2017, arguing that Riverfront did
not owe a duty to Thomas. [R. 49-1 at 2 (First Motion for Summary Judgment).] On September
22, 2017, Riverfront filed a second Motion for Summary Judgment on the structure’s status as a
vessel, [R. 60], which the Court addresses in this memorandum.
STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to
the nonmoving party, reveals “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). A genuine dispute of
material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
Court “may not make credibility determinations nor weigh the evidence when determining
whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014) (citing Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil,
188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.’” Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir.
2012) (quoting Anderson, 477 U.S. at 251–52).
As the party moving for summary judgment, the defendant must shoulder the burden of
showing the absence of a genuine dispute of material fact as to at least one essential element of
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the plaintiff’s claims. Fed. R. Civ. P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Assuming the defendant satisfies his or her burden
of production, the plaintiff “must—by deposition, answers to interrogatories, affidavits, and
admissions on file—show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at
726 (citing Celotex Corp., 477 U.S. at 324).
DISCUSSION
Riverfront argues that the structure where Thomas fell into the Mississippi River is not a
vessel under the LHWCA, and, therefore, Thomas’s claim of “negligence of a vessel” must be
dismissed. [R. 60-1 at 2.] Thomas and KAGC respond that the structure is a vessel, and,
therefore, § 905(b) is applicable to the matter at hand. [R. 69 at 17-18; R. 68 at 5.]
A. The LHWCA
Section 905 of the LHWCA states:
In the event of injury to a person covered under this chapter caused by the
negligence of a vessel, then such person, or anyone otherwise entitled to recover
damages by reason thereof, may bring an action against such vessel as a third
party in accordance with the provisions of section 933 of this title, and the
employer shall not be liable to the vessel for such damages directly or indirectly
and any agreements or warranties to the contrary shall be void.
33 U.S.C. § 905 (emphasis added). The LHWCA does not define the term “vessel.”
However, in Stewart v. Dutra Construction Co., the Supreme Court incorporated the
definition of “vessel” provided in the Rules of Construction Act, 1 U.S.C. § 3, to be used
for matters falling under the LHWCA. 543 U.S. 481, 492 (2005). That definition of
“vessel” reads: “The word ‘vessel’ includes every description of watercraft or other
artificial contrivance used, or capable of being used, as a means of transportation on
water.” 1 U.S.C. § 3. In Stewart, the Supreme Court expounded on this definition by
stating that “[s]ection 3 requires only that a watercraft be ‘used, or capable of being used,
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as a means of transportation on water’ to qualify as a vessel. It does not require that a
watercraft be used primarily for that purpose.” 543 U.S. at 495. Furthermore, the Court
stated: “Simply put, a watercraft is not ‘capable of being used’ for maritime transport in
any meaningful sense if it has been permanently moored or otherwise rendered
practically incapable of transportation or movement.” Id. at 494. Eight years later, the
Supreme Court further clarified this definition of “vessel” in Lozman v. City of Riviera
Beach when it stated:
And we must apply this definition in a “practical,” not a “theoretical,” way.
Consequently, in our view a structure does not fall within the scope of this
statutory phrase unless a reasonable observer, looking to . . . physical
characteristics and activities, would consider it designed to a practical degree for
carrying people or things over water.
568 U.S. 115, 121 (2013) (quoting Stewart, 543 U.S. at 496).
B. Motion for Summary Judgment
In its Motion for Summary Judgment, Riverfront argues that although the
structure is occasionally moved between ramps, [R. 71-1 at 2], any movement is
incidental to its use as a dock, [See R. 60-1 at 13]. Thomas and KAGC both respond that
the structure transports equipment used to unload barges between these ramps, and,
therefore, it is a vessel. [See R. 69 at 18; R. 68 at 6.] The Court finds that there is no
genuine dispute over any material fact regarding whether the structure is a “vessel”
pursuant to the LHWCA. Under the definition incorporated in the LHWCA, the structure
at hand is not a “vessel.”
In Stewart, the Supreme Court stated that “[t]he question remains in all cases
whether the watercraft’s use ‘as a means of transportation on water’ is a practical
possibility or merely a theoretical one.” 543 U.S. at 496. This notion was later confirmed

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once again in Lozman. See 568 U.S. at 121 (“And we must apply this definition in a
‘practical,’ not a ‘theoretical,’ way.”). Thomas and KAGC argue that by moving from
ramp to ramp, the structure is currently in use “as a means of transportation on water” in
a practical rather than theoretical way. [R. 69 at 18; R. 68 at 5-6.] However, the question
remains whether this sort of movement is the type of “transportation” meant by the
statute. In rebuking the dissent’s consideration of the size of the cargo carried by a
floating structure, the Court in Lozman stated: “But a transportation function need not
turn on the size of the items in question, and we believe the line between items being
transported from place to place (e.g., cargo) and items that are mere appurtenances is the
one more likely to be relevant.” 568 U.S. at 129. Granted, in the same case, the Court
stated that the consideration of evidence of subjective intent should be eliminated.
However, the Court continued by stating: “But we cannot agree that the need requires
abandonment of all criteria based on ‘purpose.’ . . . And it is why we have looked to the
physical attributes and behavior of the structure, as objective manifestations of any
relevant purpose, and not to the subjective intent of the owner.” 568 U.S. at 128. The
Court continued that “[a] craft whose physical characteristics and activities objectively
evidence a waterborne transportation purpose or function may still be rendered a
nonvessel by later physical alterations.” 568 U.S. at 129.
According to marine practices consultant Tom Smith and marine surveyor Jan
Hayes, the function, or “behavior,” of the structure at issue is to be a dock used as a
platform for loading and unloading cargo from barges. [R. 60-2 at 5; R. 60-3 at 8.]
Riverfront employees Brad Sanders and Phillip Williams both testified that this structure
is used as a dock from which they unload coal, lime, clay, etc.. [R. 60-4 at 2-3; R. 60-5 at

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20.] Although it was originally designed and built in the 1960’s for the transportation of
“hazardous or flammable liquid cargoes,” pumping and piping equipment were since
removed to eliminate the possibility of such transportation. [R. 60-2 at 5; R. 60-3 at 8.]
Further modifications were made to aid in its current use as a dock, such as the
installation of a ramp in its hull to accommodate trucks driving onto the structure. [R. 603 at 8.] According to Tom Smith, “the permanent installation of the ramp and the removal
of deck fittings would make the barge unfit to tow.” [R. 60-3 at 8.] Furthermore, due to
these modifications and the worn thin hull plating, Tom Smith, Jan Hayes, Jerry
Hammond, and Harold P. Coffey all stated that the structure is not fit for general
transportation. [R. 60-3 at 7; R. 60-2 at 6; R. 60-6 at 8.] Specifically—in contrast with the
interpretations of Thomas—Jan Hayes and Jerry Hammond stated in their report: “It
appeared to the undersigned that the above conditions were related to and consist [sic]
with excessively worn and thin plating which would apparently render the vessel
unsuitable for general transportation purposes but would not exclude it from use as a
captive floating dock.” [R. 60-2 at 6.]2 Furthermore, despite Thomas’s assertion that
“[n]othing in the record indicates that the barge was completely incapable of being used
to regularly transport equipment and/or people,” [R. 69 at 20], Tom Smith stated in his
report:
The dock barge is not a barge that is suitable for transportation in any way. It has
been converted to a fixed dock barge. . . . In order to utilize this barge for
transportation of any type of cargo significant modifications would have to be

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Thomas quoted a portion of the report of Jan Hayes and Jerry Hammond that stated: “However, if it becomes
necessary to move the barge to another port or location, we would recommend that the void compartments be
monitored for water and/or leakage during the voyage and that several pumps be placed aboard for dewatering if
necessary.” [R. 60-2 at 8.] But Thomas failed to include the line immediately following that quote, which read:
“This is not a recommendation we would make with a barge in service and which was fit for transportation over
water.” [Id.]

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made. Retired barges are commonly modified to be used as dock barges when
they are no longer suitable for transporting cargo.
[R. 60-3 at 7.]3
Neither plaintiff offers evidence or an expert to counter these statements
presented by Riverfront. Rather, both plaintiffs argue that the movement of the structure
between ramps, with the equipment for unloading barges on board, qualifies as
“transportation” under the LHWCA. [R. 69 at 18; R. 68 at 7.] In Baker v. Director, Office
of Workers’ Compensation Programs, while finding that that an oil platform did not carry
“‘items being transported from place to place (e.g., cargo),’ but only ‘mere
appurtenances,’” the Fifth Circuit determined that the platform was not a vessel because
transporting a crew and material was “incidental to its purpose of serving as an oil field
work platform.” 834 F.3d 542, 547-48 (5th Cir. 2016).4 The platform in Baker is similar
to the structure at hand, in which equipment used for unloading barges remains on the
structure as it moves to a different ramp, but the structure at hand is moved to
accommodate the water level of the river—not to transport cargo from one place to
another. [R. 69-1 at 4 (Williams Depo.), 11 (Lynch Depo.), 31 (Sanders Depo.).] In other
words, the structure transporting this equipment was “incidental” to the structure’s
function as a dock or platform for unloading barges.
Both plaintiffs also point out certain elements of the structure that could imply it
is meant for transportation, including that it has a raked bow, it is not permanently
attached to shore nor connected to onshore utilities, and the structure can be removed
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The Court notes that Thomas claims that the structure was moved “about once per month.” [R. 69 at 2, 3, 18, 20.]
The Court has read the cited statements in support of this assertion, [R. 69-1 at 4 (Williams Depo.), 30-31 (Sanders
Depo.)], but neither stated that the structure was moved “about once per month.”
4
A significant amount of case law concerning this issue originated in the Fifth Circuit. As demonstrated by the cases
cited in the parties’ briefs, the Court is aware of little to no applicable case law detailing this issue in the Sixth
Circuit.

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from shore within one hour. [R. 69 at 19-20; R. 68 at 7.] First, the fact that the structure
can be detached from shore rather quickly is not necessarily dispositive. The Supreme
Court stated in Cook v. Belden that “[t]he permanence of fixation, however, is not the
criterion which governs the maritime status of floating dry docks and similar structures.”
472 F.2d 999, 1001 (5th Cir. 1973); see also Lozman, 568 U.S. at 124 (“a structure may
qualify as a vessel even if attached—but not “permanently” attached—to the land or
ocean floor.”).5 Furthermore, although the structure has a raked bow, it does not have the
accessories of more traditional “seagoing vessels” like the dredge found to be a vessel in
Stewart that had a “captain, crew, navigational lights, ballast tanks, and a crew dining
area” and moved over water “every couple of hours.” 543 U.S. at 484. Moreover, in
Lozman, the Supreme Court emphasized that the basic difference between a case
involving a structure like the dredge in Stewart and one that is more permanently fixed in
place is that the dredge was “regularly used . . . (and designed in part to be used) to
transport workers and equipment over water.” Lozman, 568 U.S. at 125. Although the
structure at hand was originally designed for transportation in the 1960’s, its design was
modified and it is no longer used for that function. Therefore, the structure does not fall
under the definition of “vessel,” and Riverfront’s Motion for Summary Judgment is
GRANTED.
C. Riverfront’s Other Motion for Summary Judgment
Riverfront also moves for summary judgment under the argument that plaintiffs
cannot establish the existence of a duty owed to Thomas by Riverfront. [R. 49-1 at 2.] As
the Court has already granted summary judgment on the grounds that the structure is not
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The Court notes that Cook was published before the “primary purpose test” was overruled in Stewart. However,
that does not lessen the persuasive nature of the Supreme Court’s statement that the “permanence of fixation” is not
necessarily dispositive in this type of analysis.

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a “vessel,” as required under § 905(b), the Court finds that this additional Motion for
Summary Judgment, [R. 49], is MOOT.
CONCLUSION
For the reasons stated herein, Riverfront’s Motion for Summary Judgment, [R.
60], is GRANTED and Riverfront’s other Motion for Summary Judgment, [R. 49], is
MOOT. The Court will enter a separate Order and Judgment consistent with this
Memorandum Opinion.

cc: Counsel of Record

March 21, 2018

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