Magee v. Ensco Offshore Company
Filing
64
ORDER & REASONS granting 55 Ensco Offshore Company's Motion for Partial Summary Judgment; FURTHER ORDERED that Plaintiff's unseaworthiness claims against Ensco are DISMISSED with prejudice. Signed by Judge Carl Barbier on 11/20/12. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MAGEE
CIVIL ACTION
VERSUS
NO: 11-1351
ENSCO OFFSHORE CO.
SECTION: "J” (2)
ORDER AND REASONS
Before
the
Court
are
Defendant,
Ensco
Offshore
Company
(“Ensco”)’s Motion for Partial Summary Judgment on the Claims for
Unseaworthiness (Rec. Doc. 55), Defendant Tobias, Inc. (“Tobias”)
and
Plaintiff’s
oppositions
to
same
(Rec.
Docs.
56,
63,
respectively), and Ensco’s supplemental memorandum thereto (Rec.
Doc. 62).
Having considered the motion, the parties’ legal
memoranda, the record, and the applicable law, the Court finds
that Ensco’s motion should be GRANTED for the reasons set out
more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This action arises out of personal injury claims brought
under general maritime law and the Jones Act. On June 8, 2011,
Plaintiff Kendall Magee (“Mr. Magee”) filed the instant suit
1
naming Ensco as a Defendant. (Rec. Doc. 1) On September 21, 2011,
Plaintiff
amended
his
complaint
to
include
Tobias
as
an
additional Defendant.1
In his complaint, Plaintiff alleges that on March 12, 2011,
while in the course and scope of his employment with Ensco as a
seaman and member of the crew of the mobile offshore drilling
vessel, ENSCO 82, he was required to perform work aboard the M/V
MS.
CHRISTINE.2
Plaintiff
asserts
that
he
and
fellow
Ensco
roustabout, Jonathan Anderson (“Mr. Anderson”), were sent to the
M/V MS. CHRISTINE to assist with a backloading operation, which
involved moving grocery boxes by crane from the ENSCO 82 to the
M/V MS. CHRISTINE.3 According to Plaintiff, he was holding the
taglines on the grocery box, when the box suddenly swung towards
him, causing him to fall to the deck. Plaintiff alleges that as a
result
of
the
fall,
he
sustained
“severe
and
permanently
1
(Rec. Doc. 8) The original and amended complaints allege the same causes
of action for each Defendant. As such, they are generally referenced as “the
complaint,” and their allegations are referenced as one set of allegations.
2
(Rec. Doc. 8, p. 1, ¶¶ 3, 4) Plaintiff asserts that, at all times relevant
to the complaint, the ENSCO 82 was owned, chartered, and manned by Ensco, and it
was also operated at the direction of Ensco. (Rec. Doc. 1, p. 2, ¶ 5) He further
alleges that the vessel, M/V MS. CHRISTINE, an offshore crew and supply vessel,
was owned, chartered, manned, and operated by Tobias. (Rec. Doc. 8, p. 1, ¶ 2)
3
The crane was located on the ENSCO 82 at the time of the alleged
accident.
2
disabling injuries,” specifically,
to his spine and extremities.
(Rec. Doc. 1, pp. 2-4, ¶¶ 6,10); (Rec. Doc. 8, p. 1, ¶ 3)
Plaintiff claims his injuries were proximately caused by
the negligence of Ensco and Tobias, their employees, officers,
and
crew
in
failing
to
“supervise,
direct,
and
control
operations,” “provide or utilize safe and appropriate equipment,”
or
provide
him
with
“adequate
assistant”
and
a
safe
work
environment. (Rec. Doc. 8, p. 2, ¶ 7) Plaintiff also asserts that
Defendants Ensco and Tobias had a duty to provide a “competent
and adequate” crew, proper safety gear, “safe appurtenances and
equipment,” and a seaworthy vessel. (Rec. Doc. 8, p. 3, ¶ 8)
He
alleges that his injuries were proximately caused by Ensco and
Tobias’s failure to perform these duties.
Plaintiff claims that as a result of his injuries, he has
been unable to return to his former employment. (Rec. Doc. 1, pp.
3-4, ¶ 10)
He asserts that he has incurred loss of wages and
medical expenses, past, present, and future, and is, therefore,
entitled to reasonable damages. (Rec. Doc. 1, pp. 3-4, ¶ 10)
He
also asserts that he is entitled to maintenance and cure from
Ensco during his period of disability in the amount of fifty
dollars per day. (Rec. Doc. 1, p. 4, ¶¶ 11-12)
Due to Ensco’s
alleged failure to pay maintenance and cure benefits, Plaintiff
3
also seeks punitive damages and attorney’s fees. (Rec. Doc. 1,
pp. 4-5, ¶¶ 13-14)
On
September
21,
2012,
after
completing
the
Plaintiff’s
deposition as well as the depositions of the Ensco and Tobias
employees alleged to have been at the scene of the accident,
Ensco filed the instant motion. Tobias responded in opposition to
Ensco’s motion on October 2, 2012. Plaintiff responded to Ensco’s
motion on October 9, 2012.
PARTIES’ ARGUMENTS
Ensco argues that it is entitled to summary judgment on
Plaintiff’s unseaworthiness claim for several reasons. First,
Ensco asserts that because Plaintiff was located on the M/V MS.
CHRISTINE
at
the
time
of
his
alleged
accident,
unseaworthiness of the ENSCO 82 is not at issue.41
the
Therefore,
Ensco asserts that for an unseaworthy condition to exist against
Ensco, it would have to be by virtue of a defect in the crane
that was being used for the backloading operation, or in the
performance of the backloading operation itself.
Second, Ensco maintains that even if the accident did occur,
there is no question of material fact pertaining to the crane’s
4
In their briefs, none of the parties dispute the fact that the
unseaworthiness of the ENSCO 82 is not an issue. Rather, their responses focus
solely on the conditions surrounding the accident itself, which occurred on the
M/V MS. CHRISTINE.
4
seaworthiness, because the crane worked properly, and the Ensco
employees involved in the backloading operation performed their
jobs competently.
To support this argument, Ensco contends that
Plaintiff admitted in his deposition that, at the time of the
alleged accident, the crane worked properly and the load came
down where he expected.
Ensco also claims that the proper number
of people were used to operate the crane.
Ensco argues that no
one has refuted Plaintiff’s testimony that he could not identify
anything the other Ensco employees did wrong on the date of the
accident.
Third, Ensco disputes that alleged accident ever occurred.
Ensco asserts that Plaintiff (1) did not report an injury upon
completion of the backloading operation; (2) signed a Certificate
of No Injury at the end of his shift; and (3) that no one else
witnessed
the
alleged
accident
and/or
problems
with
the
backloading of the grocery box.
Furthermore, Ensco asserts that even if Plaintiff’s version
of
the
facts
is
isolated
incident
operator,
which
taken
of
is
as
true,
operational
insufficient
he
has
only
negligence
to
sustain
unseaworthiness. Ensco argues that in order
established
by
a
the
claim
an
crane
for
to establish a claim
for unseaworthiness, Plaintiff must show a pattern of negligence,
5
not just an isolated instance of negligence. Ensco contends that
isolated instances of negligence only give rise to a Jones Act
negligence claim, not a condition of unseaworthiness.
In response, Plaintiff asserts that Mr. Anderson’s testimony
confirms that the accident occurred. Plaintiff reports that Mr.
Anderson testified that he heard a loud sound, and when he turned
around Plaintiff was on the deck. Plaintiff further avers that
even
if
Mr.
Anderson’s
testimony
does
not
confirm
that
the
accident occurred, it does raise a question of material fact as
to
the
unseaworthiness
precluding
summary
of
the
judgment.
crane’s
operation,
Plaintiff
argues
thereby,
that
Ensco
“attempts to gloss over” the issue of unsafe operation conducted
by
an
unfit
crew
by
claiming
that
everything
worked
fine.
Plaintiff asserts that his own injuries show that everything did
not work fine, and that Plaintiff’s testimony of the accident
cannot
be
witnesses’
argument
discarded
testimony.
for
summary
merely
because
it
Plaintiff
claims
judgment
is
is
disputed
that
predicated
by
Ensco’s
on
the
other
primary
false
assertion that the testimony of the other witnesses present at
the time of the accident should be considered more credible than
Plaintiff’s testimony. Plaintiff asserts that this is a question
of credibility that should be decided at trial.
6
Plaintiff also claims that the crane operator engaged in an
unsafe method of work by lifting the load off the deck of the M/V
MS. CHRISTINE after it had already landed, and that this unsafe
method of operation directly caused his injuries.
Furthermore,
Plaintiff points to a previous incident where the crane operator
performed his job negligently, which caused property damage but
no physical injuries.5 Plaintiff asserts that this pattern of
unsafe work method constituted an unseaworthy condition.
In Tobias’ opposition, it argues that Plaintiff does have a
claim against Ensco for unseaworthiness, because Plaintiff was
permanently assigned to the ENSCO 82 as an employee of Ensco and,
consequently,
Ensco
owed
Plaintiff
a
duty
of
seaworthiness.
Tobias argues that, to the extent that the Plaintiff’s version of
the
facts
are
taken
as
true,
which
Tobias
also
denies,
a
reasonable fact finder could find that (1) the grocery box being
moved after being set on the deck of the M/V MS. CHRISTINE was
attributable to the crane itself; (2) the procedure used by Ensco
was improper; (3) that Ensco did not have sufficient personnel
5
The crane operator acknowledged this previous incident in his deposition.
He explained that several months before the accident, he bumped a vent on a rig
while picking up some casing. He asserted that the reason why he bumped the vent
was because he was in a blind spot, and the Plaintiff, as a flagger, was supposed
to be directing him out of the blind spot but, instead, directed him in a way
that caused him to bump the vent. The crane operator testified that no incident
report was filed and no damage resulted from this event. (Pl.’s Ex. 3, Rec. Doc.
63-3, p. 84, ll 1-15)
7
conducting the backloading operation; and/or (4) that any number
of other conditions make the ENSCO 82 unseaworthy.6
DISCUSSION
A. Legal Standard
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
All
reasonable inferences are drawn in favor of the nonmoving party,
but
a
party
cannot
defeat
summary
judgment
allegations or unsubstantiated assertions.
with
conclusory
Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable
6
Tobias also asserts that Plaintiff does not have an unseaworthiness claim
against the M/V MS. CHRISTINE, because Plaintiff was not a seaman permanently
assigned to the vessel. Therefore, Tobias requests that this Court enter summary
judgment and dismiss Plaintiff’s claim for unseaworthiness against it. Tobias’
request is not properly before the Court at this time, nor has Tobias provided
any legal support for its statement. As such, the Court declines to make any
finding on Tobias’ request as presented in its opposition.
8
jury could not return a verdict for the nonmoving party.” Delta,
530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991) (citation omitted).
The nonmoving party can then
defeat the motion by either countering with sufficient evidence
of its own, or “showing that the moving party’s evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
See Celotex, 477 U.S. at 325.
of the nonmoving party’s claim.
The burden then shifts to the nonmoving party, who must, by
submitting
showing
or
that
referring
a
genuine
to
evidence,
issue
exists.
set
See
out
id.
specific
at
324.
facts
The
nonmovant may not rest upon the pleadings, but must identify
9
specific facts that establish a genuine issue for trial. See,
e.g., id. at 325; Little, 37 F.3d at 1075.
B.
Applicable Law
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 v. Luckenbach Overseas Corp., 400 U.S. 494,
499 (1971).
unsafe
Apart from the physical condition of the vessel, an
method
of
work
can
render
a
vessel
unseaworthy.
Id.
However, 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.
The United States Fifth Circuit Court
of Appeals has construed the Usner holding as follows,
A longshoreman or one of his fellows might engage in a
congeries
of
negligent
acts
that
are
of
such
a
character or that continue for such a length of time
that they become related to the status of the vessel.
That congeries of acts might create a “condition” of
unseaworthiness,
so
that
an
individual
act
of
negligence within or after the congeries might give
rise to liability under the unseaworthiness doctrine.
10
However, if the negligent act of a longshoreman 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 by the longshoreman or his fellows will not
render the vessel unseaworthy.
Robinson v. Showa Kaiun K. K., 451 F.2d 688, 690 (5th Cir. 1971).
Overall,
operational
to
establish
negligence,
a
a
claim
plaintiff
of
unseaworthiness
must
prove
that
for
the
negligence “[is] ‘pervasive’ or repeated frequently for it to
rise to the level of an unseaworthy condition.” Vendetto v. Sonat
Offshore Drilling Co., 97-3103 (La. 1/20/99), 725 So. 2d 474,
481(citing Usner, 400 U.S. at 498; Robinson, 451 F.2d at 690).
C. Analysis
As a preliminary matter, the Court finds there is a genuine
issue of material fact as to whether or not the alleged accident
actually occurred. The Plaintiff has clearly alleged that he was
injured as a result of an accident, and he has also testified in
deposition that an accident occurred. As such, Ensco’s arguments
11
regarding contradictory testimony go to the credibility of the
witnesses and the ultimate weight of the evidence, which is
reserved for trial. The Court now turns to Ensco’s argument that
the alleged accident was an isolated instance of negligence,
rather than a condition of unseaworthiness.
In
the
instant
action,
the
Court
finds
that
the
crane
operator’s alleged actions constitute an isolated instance of
negligence
that
does
not
give
rise
to
a
claim
for
unseaworthiness. In making this finding, the Court finds the
facts of the Usner case, as well as the facts of Daughdrill v.
Ocean Drilling & Exploration Co., 709 F.Supp. 710, 712 (E.D. La.
1989), persuasive.
In Usner, a longshoreman was injured while loading cargo
aboard a vessel. 400 U.S. at 495. During the loading operation,
the injured longshoreman was required to secure bundles of cargo
to a sling each time the bundles were lowered from the ship’s
boom by the winch operator. Id.
After effectively conducting the
operation for a prolonged period of time, an occasion arose where
the winch operator did not sufficiently lower the sling. Id.
When the winch operator tried to correct the error he lowered the
sling too quickly and too far, causing the longshoreman to be
12
knocked to the deck of the vessel. Id. The Supreme Court found
the longshoreman’s injuries were not caused by a “condition of
the ship, her appurtenances, her cargo, or her crew, but [rather
by] the isolated, personal negligent act” of the winch operator.
Id. at 500. The Court explained that a third party’s “single and
wholly unforeseeable” acts of negligence are not sufficient to
give rise to liability of the shipowner for unseaworthiness. Id.
Likewise,
factual
in
Daughdrill,
scenario
on
a
the
motion
court
by
considered
plaintiff
notwithstanding the verdict. 709 F. Supp. at 712.
the
plaintiff
was
injured
when
a
crane
a
for
similar
judgment
In Daughdrill,
operator
lowered
a
personnel basket, in which the plaintiff was located, too hard
onto the deck. Id.
Although the plaintiff was able to point to
one or two other occasions over the prior ten years when the
crane
operator
may
have
made
the
same
mistake,
the
court
determined that this was not sufficient to create a condition of
unseaworthiness.7
crane
operator
Therefore, the court found that the act of the
was
considered
to
be
an
isolated
act
of
7
Id. In Daughdrill, the plaintiff alleged that the crane operator has
committed the same error two times in the previous ten years. Id. The court found
that because plaintiff could not conclusively show that it was the same crane
operator on both occasions, and because the plaintiff had actually stated that
the crane operator was a “good” crane operator, that the plaintiff had failed to
show anything more than an isolated instance of negligence. Id.
13
negligence, and the Court declined to reverse a directed verdict
in favor of the vessel owner on the claim for unseaworthiness.
Id.
In the instant case, Plaintiff alleges his injuries were
caused when a several hundred pound grocery box that was being
transferred from the ENSCO 82 to the M/V MS. CHRISTINE swung at
him after being lifted up off the deck of the M/V MS. CHRISTINE.
Similar
to
the
accident
in
Usner,
Plaintiff’s
deposition
testimony reveals that up until the point in which the actual
grocery box “suddenly and without warning” swung towards him, the
crane
operator
had
been
steadily
and
correctly
lowering
the
grocery box onto the ship. (Rec. Doc. 63, p. 2); (Def. Ex. A,
Rec. Doc. 55-4, pp. 247, 249 (“Q. All right. You’re watching it
come down and load is perfect vis-a-vis the boat, as far as
you’re
concerned;
correct?
A.
Correct.
.
.
.
Q.
Well,
[the
grocery box is placed] exactly where you thought it was going to
go; correct? A. Correct.”)) Thereby indicating that the act was
an
isolated
incidence
of
negligence,
rather
than
due
to
an
unseaworthy condition. Furthermore, similar to the crane operator
in Daughdrill, despite sixteen years of operating a crane, the
crane operator in the instant case only has one reported prior
14
negligence.8
incidence
of
opposition
that
he
will
While
Plaintiff
“testify
at
trial
argues
that
in
[the
his
crane
operator] had other, previous, mishaps,” the record before the
Court
on
summary
judgment
only
demonstrates
that
the
crane
operator had, at most, one previous incident. See id. Plaintiff
has not presented the Court with any other evidence of prior,
repeated incidents. One to two incidents during a span of sixteen
years hardly rises to the level of “congeries” of negligent acts
or negligence that is “pervasive or repeated frequently.” As
such, the Court finds that Plaintiff has failed to show that an
unseaworthy condition existed.
Furthermore, although Plaintiff alleges in his complaint
that his injuries were proximately caused by Ensco’s failure to
provide a competent and adequate crew, proper safety gear, safe
appurtenances
and
equipment,
and
a
seaworthy
vessel,
the
Plaintiff has failed to come forward with any evidence for any of
8
Q. Have you ever had an incident where you, as a crane operator,
have caused damage on a vessel or struck a vessel? A. I bumped
a vent but nothing was damaged. In fact, [Plaintiff] was over
there flagging when I bumped it. That was a couple of months
before this right here happened. . . . Q. On a crewboat? A. No,
that was on the rig. . . . Q. I just want to talk to you a
little bit about your background and whether you’ve been written
up by ENSCO for any actions as a crane operator. A. No. Q. What
about with your previous company? Q. No. Q. Have you ever been
involved in crane operations where anyone else has asserted they
were injured other than Mr. Magee? A. No.
(Def. Ex. A, Rec. Doc. 62-1, pp. 83 - 85)
15
these other possible claims for unseaworthiness. In particular,
Plaintiff has not presented any facts which support an allegation
that the crane was not operating properly the evening of the
incident.
In fact, the crane operator actually testified in
deposition that the crane functioned properly on the night in
question and that he did not have any problems with it. (Ensco
Ex. C, Rec. Doc. 55-3, pp. 49-50); (Ensco Ex. D, Rec. Doc. 55-3,
p. 30)
Therefore, the issue of the seaworthiness of the crane
itself is not in controversy. Moreover, Plaintiff also admits in
his deposition that he could not identify anything that Mr.
Anderson, the other Ensco roustabout assigned to the backloading
operation, did wrong. (Ensco Ex. A, Rec. Doc. 55-3, pp. 449-50)
As such, there is no issue of material fact as to the unsafe work
practices of Mr. Anderson. Lastly, the Plaintiff has also failed
to present any facts which indicate that the training (or lack
thereof) of the crew or the safety gear provided to the crew
created an unseaworthy condition. Accordingly,
IT IS ORDERED that Ensco’s motion is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s unseaworthiness
claims against Ensco are DISMISSED with prejudice.
16
New Orleans, Louisiana this 20th day of November, 2012.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
17
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