Walls v. Crounse Corporation

Filing 26

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 3/8/2017 denying 19 Motion for Summary Judgment. In accordance with the Courts most recent scheduling order [DN 18], a telephonic final pretrial conference shall be held April 18, 2017 at 12:00 p.m. Central time. The Court shall place the call to counsel. All other pretrial deadlines shall remain in effect. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:15-CV-00058-TBR
ANTHONY WALLS

PLAINTIFF

v.
CROUNSE CORPORATION

DEFENDANT

Memorandum Opinion and Order
This matter is before the Court upon Defendant Crounse Corporation’s
motion for summary judgment.

[DN 19.]

20], and Crounse replied, [DN 21].
file a sur-reply, which he did.
for adjudication.

Plaintiff Anthony Walls responded, [DN

Additionally, the Court granted Walls leave to

[DN 24; DN 25]. Fully briefed, this matter is ripe

For the following reasons, Crounse’s motion for summary

judgment [DN 19] is DENIED.
I. Facts and Procedural History
While onboard the M/V LESLIE M. NEAL, Plaintiff Anthony Walls fell down a
flight of stairs and fractured his right ankle.

Walls, a crewmember, had just

finished soogeying, or mopping, the vessel’s second deck.

[DN 19-2 at 9.]

After

spraying the deck down with a water hose to rinse off the excess soap, Walls
collected his mop and brush in the soogey bucket and began to walk down a set of
steps to a lower level.

[Id. at 10-11.]

He testified during his deposition that the

bucket was “too full” of the soapy solution, and that some of the solution had sloshed
out of the bucket. [Id. at 15-16.]

He believes that he stepped in the solution

immediately before he slipped and fell.

[Id. at 16.] As he reached out for the

handrail, Walls’ right foot slipped, and he fell down the entire flight of stairs,
landing on the bottom deck and fracturing his ankle in the process.

[Id. at 11-12.]

Walls had not yet placed his foot onto the first step when he slipped. [Id. at 11.]
There were no witnesses to Walls’ fall.

[Id. at 9.]

The parties dispute the cause of Walls’ accident.

Walls claims that

Crounse’s vessels, including the M/V LESLIE M. NEAL, only have non-skid surfaces
on the lower deck, and that there was no non-skid surfacing on the landing from
which he fell. See, e.g., [DN 20-1 at 25-26.]

However, Captain Dale Kendall

testified that Crounse’s policy is to have non-skid paint at the top and bottom of
every stairwell, and that non-skid was in fact present.

[DN 19-5 at 2.]

Additionally, Walls claims that he was wearing Chuck Taylor tennis shoes when the
accident occurred because Crounse failed to provide him with the sooging boots he
had requested on multiple occasions.

[Id. at 17-20.]

Walls admits, though, that

Crounse required crewmembers to have one pair of work boots. [Id. at 20.]

Walls

did not wear his work boots when he soogeyed because he didn’t want to get them
wet.

[Id.]
Walls brought suit against Defendant Crounse Corporation, the owner of the

M/V LESLIE M. NEAL.

See [DN 1.]

He alleges that Crounse is liable to him under

the Jones Act, 46 U.S.C. § 30104, and under a theory of unseaworthiness for
requiring him “to soogey without soogey boots on a non-skidless surface which was
unreasonably slippery.”

[Id. at 2.]

Crounse now moves for summary judgment on

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both of Walls’ claims. See [DN 19.]

After full briefing, Crounse’s motion is ripe for

adjudication. See [DN 20; DN 21; DN 25.]
II. Standard of Review
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.”
R. Civ. P. 56(a).

Fed.

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, Crounse must shoulder the
burden of showing the absence of a genuine dispute of material fact as to at least
one essential element of each of Walls’ claims.

Fed. R. Civ. P. 56(c); see Laster, 746

F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

Assuming

Crounse satisfies its burden of production, Walls “must—by deposition, answers to

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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).
III. Discussion
Crounse is not entitled to summary judgment on either of Walls’ claims.
Both the Jones Act and the doctrine of unseaworthiness impose a high duty of care
upon ship owners with respect to their employees. Under either theory, Walls may
prevail against Crounse if he proves that Crounse’s failure to apply non-skid paint
and to provide him with the appropriate style of boots caused him to fall and break
his ankle.

Furthermore, Crounse’s contentions that Walls’ conduct was negligent

go only to his comparative negligence, and do not entirely ameliorate Crounse’s
liability.

Because genuine issues of material fact exist as to both of Walls’ claims,

they must accordingly be submitted to a jury for resolution.
A. Jones Act
The Jones Act embodies a “policy of providing an expansive remedy for
seamen who are injured while acting in the course of their employment.” Taylor v.
TECO Barge Line, Inc., 517 F.3d 372, 382-83 (6th Cir. 2008) (quoting Rannals v.
Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir. 2001)) (internal quotation marks
omitted).

In pertinent part, it provides a cause of action in negligence for any

seaman injured in the course of his employment. See 46 U.S.C. § 30104; see also
Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995). “‘Proof of negligence (duty and
breach) is essential to recovery under the Jones Act,’ and an employer's conduct in a

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Jones Act case is reviewed ‘under the “ordinary prudence” standard normally
applicable in negligence cases.’” Rannals, 265 F.3d at 447 (quoting Perkins v. Am.
Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th Cir. 2001)).

If the seaman is

able to establish that the employer acted negligently, then he need only show that
the “employer's negligence ‘played any part, even the slightest, in producing the
injury or death for which damages are sought.’” Id. at 447-48 (quoting Rogers v.
Mo. Pac. R.R. Co., 352 U.S. 500, 506 (1957)).

“The obligation of a shipowner to his

seamen is substantially greater than that of an ordinary employer to his
employees.” Interocean S.S. Co. v. Topolofsky, 165 F.2d 783, 784 (6th Cir. 1948)
(per curiam) (citing Koehler v. Presque-Isle Transp. Co., 141 F.2d 490, 492 (2d Cir.
1944)).
The absence of non-skid paint where it should otherwise be present can give
rise to Jones Act liability.

For instance, in Merlino v. U.S. Steel Corp., a seaman

slipped on a wet deck after the non-skid paint had worn off. Merlino v. U.S. Steel
Corp., 52 F.3d 326, 1995 WL 154857, at *1 (6th Cir. Apr. 6, 1995) (unpublished
table decision).

Reversing the trial court’s judgment of a matter of law for the

defendant, the Sixth Circuit held, “A reasonable juror could find that the absence of
nonskid paint, where it had been applied earlier and was worn away, was a failure
to exercise reasonable and ordinary care . . . .” Id. at *4. See also Kratzer v.
Capital Marine Supply, Inc., 645 F.2d 477, 481 (5th Cir. 1981). An employer’s
failure to furnish proper footwear may also constitute negligence under the Jones
Act.

White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1339 (5th Cir. 1969).

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Crounse does not directly challenge this authority.

Rather, Crounse argues

that it is entitled to summary judgment on Walls’ Jones Act claim because Walls’
own negligence was the sole cause of his injury.

Crounse claims that Walls acted

negligently by wearing tennis shoes instead of work boots to soogey the deck, by
carrying an overfilled bucket of soapy water, and by failing to mop up the soapy
water that sloshed out of the bucket before he proceeded down the steps.
at 5-6.]

[DN 19-1

In response, Walls contends that because Crounse negligently failed to

apply non-skid paint to the landing from which he fell, Crounse’s arguments go only
to Walls’ comparative fault.
Walls has the better of this argument.

Crounse is correct in saying that

Jones Act liability will not lie where a seaman’s own negligence is the sole
proximate cause of his injury. Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898,
909 (6th Cir. 2006). “In such cases, the plaintiff does not lose because of his or her
contributory negligence but rather because the defendant was not negligent.” Id.
But here, Walls presents two genuine issues of material fact: (1) whether no nonskid surfacing was present at the top of the stairs, and (2) whether Crounse failed to
supply him with the soogey boots he requested. A reasonable jury could conclude
that these conditions, if they existed, constituted negligence on Crounse’s part.

It

may very well be the case that Walls acted negligently in his own right by carrying
an overfilled bucket of soapy water and by wearing tennis shoes instead of his work
boots.

However, Walls’ negligence will not cancel out Crounse’s negligence.

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Churchwell, 444 F.3d at 909 (citing Ribitzki v. Canmar Reading & Bates Ltd., 111
F.3d 658, 662 (9th Cir. 1997)).
Crounse also contends that it cannot be liable because Walls proceeded in the
face of a known danger when a safer alternative was available to him.

In Yehia v.

Rogue Steel Corp., the Sixth Circuit wrote that “[a] seaman may not be denied
recovery because he proceeds in an unsafe area of the ship or uses an unsafe
appliance in absence of a showing that there was a safe alternative available to
him.”

Yehia v. Rogue Steel Corp., 898 F.2d 1176, 1183 (6th Cir. 1990) (quoting

Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193, 1195 (6th Cir. 1980)).

Citing

Yehia, Crounse claims that the inverse must also be true – if Walls knew that the
landing, covered in soapy water and lacking non-skid surfacing, was unsafe, and
could have remedied the condition by wearing different shoes and mopping up the
soap, he cannot recover.

Not so.

Essentially, Crounse is attempting to argue that

Walls assumed the risk of stepping onto a soapy landing that lacked non-skid paint.
But “assumption of the risk is not . . . a defense to a seaman’s action for personal
injury as a result of unseaworthiness or Jones Act negligence.” Burden v.
Evansville Materials, Inc., 840 F.2d 343, 346 (6th Cir. 1988).

The jury is certainly

entitled to take into account evidence demonstrating that Walls was partly at fault
for attempting to descend the stairs even though he knew the landing was
potentially hazardous.

See id. at 347.

a complete bar to Walls’ recovery.

But that showing alone cannot function as

Because genuine issues of material fact exist as

to Walls’ Jones Act claim, a jury, not the Court, must decide these issues.

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B. Unseaworthiness
For many of the same reasons, the Court will also deny Crounse’s motion as
to Walls’ unseaworthiness claim.

Often compared to strict liability or no-fault

claims, seaworthiness stems from a shipowner’s “absolute duty to maintain a
seaworthy ship, the breach of which imposes liability without fault.”

Perkins v.

Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 602 (6th Cir. 2001) (citing Brown
v. Dravo Corp., 258 F.2d 704, 706 (3d Cir. 1958)).

To prevail, a plaintiff must show

that the vessel upon which he was injured was unseaworthy, and that the vessel’s
unseaworthy condition was the proximate cause of his injuries. Churchwell v.
Bluegrass Marine, Inc., 444 F.3d 898, 904 (6th Cir. 2006). “A vessel is
unseaworthy if the vessel and its appurtenances are not ‘reasonably fit for their
intended use.’”

Id. (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550

(1960)). An unseaworthy condition “proximately causes an injury if it played a
substantial part in bringing about or actually causing the injury and the injury was
either a direct result or a reasonably probable consequence of unseaworthiness.”
Id. (internal quotation marks and citations omitted).

However, a vessel is not

required to be “free from all possibility of mishap, for the seaworthiness of a ship is
a relative concept, dependent in each instance upon circumstances.”

Perkins, 246

F.3d at 602.
Just as lack of non-skid paint can give rise to Jones Act liability, so too can its
absence constitute an unseaworthy condition. See, e.g., Hargrove v. Casterline Fish
Co., Inc., No. V-06-86, 2007 WL 2409749, at *1 (S.D. Tex. Aug. 21, 2007) (citing

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cases).

“Generally, unseaworthiness is a question of fact for the jury and should

not be resolved by the district court as a matter of law.” Churchwell, 444 F.3d at
904.

Viewing the evidence in the light most favorable to Walls, a factual dispute

exists as to whether the alleged lack of non-skid surfacing on the landing created an
unsafe work environment, rendering the M/V LESLIE M. NEAL unfit for its intended
purpose. Moreover, the jury may also conclude that the absence of non-skid
“played a substantial part in bringing about or actually causing [Walls’] injury[,]
and the injury was . . . a reasonably probable consequence of unseaworthiness.”
Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1463-64 (6th Cir. 1993) (quoting
Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 1988)). Crounse is
therefore not entitled to summary judgment on Walls’ unseaworthiness claim.
IV. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED:
Defendant Crounse Corporation’s motion for summary judgment [DN 19] is
DENIED.

In accordance with the Court’s most recent scheduling order [DN 18], a

telephonic final pretrial conference shall be held April 18, 2017 at 12:00 p.m.
Central time.

The Court shall place the call to counsel.

deadlines shall remain in effect.

March 8, 2017

CC: Counsel of Record

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All other pretrial