Rose v. Cargill Inc

Filing 25

ORDER & REASONS: granting 19 Cargill's Motion for Summary Judgment; FURTHER ORDERED that Plaintiff's claims in this matter are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 7/1/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JAMES ROSE, JR.

CIVIL ACTION

VERSUS

NO: 14-2406

CARGILL, INC., ET AL

SECTION: J(2)
ORDER AND REASONS

Before the Court is a Motion for Summary Judgment (Rec.
Doc.

19)

filed

by

Defendant,

Cargill,

Inc.

(“Cargill”),

an

Opposition thereto (Rec. Doc. 20) by Plaintiff, James Rose, Jr.
(“Plaintiff”),

and

Cargill’s

Reply

(Rec.

Doc.

24).

Having

considered the motion, the parties’ submissions, the record, and
the applicable law, the Court finds, for the reasons expressed
below, that the motion should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
This matter arises out of injuries allegedly sustained by
Plaintiff aboard the barge HBM 3010 (“the Barge”) located at a
fleeting facility owned by Cargill in Edgard, Louisiana. At the
time of the incident, Plaintiff alleges that he was employed by
B&K Contracting (“B&K”), who had been hired by Cargill to clean
the barges located at the facility. On the day of the incident,
1

Plaintiff was assigned by B&K to pressure wash the hold of the
Barge. The Barge was adjacent to two other barges stationed at
the fleeting facility. Plaintiff alleges that as he was stepping
from one barge to the Barge, he slipped on soybeans situated on
the deck of

the

Barge

and

fell

overboard.

Plaintiff

further

alleges that while he was in the water, the force of the waves
repeatedly slammed him into the side of the Barge. As a result
of his fall and subsequent collision with the Barge, Plaintiff
alleges that he sustained serious injuries, including injuries
to his head, neck, left arm, knee, and shoulder. (Rec. Doc. 1,
p. 3).
Plaintiff

filed

the

present

lawsuit

in

this

Court

on

October 20, 2014, naming both Cargill and Cargill’s unidentified
insurance company as defendants, and asserting claims pursuant
to

general

maritime

law.

Plaintiff

specifically

claims

that

Cargill acted negligently by failing, amongst other things, to
provide
hazards,

a

safe
to

workplace,

properly

to

keep

instruct

its

the

Barge

deck

employees,

and

clear
to

of

cease

operations on the Barge until the soybeans had been cleaned.
(Rec. Doc. 1, p. 4). On April 21, 2015, the Louisiana Workers’
Compensation Corporation, the workers’ compensation insurer for
B&K, intervened in the lawsuit, seeking to recover a portion of
2

the award Plaintiff may ultimately recover as reimbursement for
the workers’ compensation payments already paid to Plaintiff.
(Rec. Doc. 18).
Cargill

filed

the

instant

motion

on

June

5,

2015,

requesting that the Court grant summary judgment in its favor
and dismiss all Plaintiff’s claims against it on the basis that
Plaintiff is unable to present a prima facie case of negligence
at this stage in the proceedings.
PARTIES’ ARGUMENTS
Cargill asserts that Plaintiff’s claims for negligence must
be dismissed, because Cargill owed Plaintiff no “duty to protect
him

from

his

own

inattentiveness.”

(Rec.

Doc.

19-1,

p.

5).

Cargill first disputes Plaintiff’s allegations that Cargill is
the

owner

or

operator

of

the

barge.

Cargill

denies

that

it

either owned or operated the Barge, and as such, asserts it did
not have a duty to maintain the Barge or instruct its crew.
Second, Cargill contends that it did not owe Plaintiff a duty to
clean

the

soybeans

off

the

deck

of

the

Barge

or

to

warn

Plaintiff of the existence of the soybeans, because this was the
exact condition Plaintiff had been specifically hired to remedy.
Third, Cargill asserts that it never provided Plaintiff with
supervision and direction over his cleaning of the Barge, and
3

that Plaintiff was instead directly supervised by B&K. As such,
Cargill argues that only B&K, and not Cargill, may be found
liable for failing to exercise proper care when supervising and
directing

Plaintiff

while

he

performed

services

aboard

the

Barge.
In response, Plaintiff first maintains that Cargill is the
owner and operator of the Barge. Plaintiff relies on evidence
which identifies Cargo Carriers, Inc. (“Cargo Carriers”), which
is designated as “a business of Cargill,” as the actual owner of
the

Barge,

and

asserts

that

Cargill

is

unable

to

present

evidence to refute its ownership. (Rec. Doc. 20, p. 2). Although
Plaintiff

only

briefly

addresses

his

claims

premised

on

Cargill’s negligence with regards to the soybeans, he devotes a
substantial portion of his Opposition to arguing that Cargill’s
failure

to

proximately

erect

a

ramp

or

caused

Plaintiff’s

walkway
fall.

between

Plaintiff

the

barges

specifically

asserts that “it was unreasonable for Cargill to turn over the
cleaning of the barges to B&K Contracting without providing safe
walkways between the barges.” (Rec. Doc. 20, p. 5).
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
4

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 with
conclusory allegations or unsubstantiated assertions. Little, 37
F.3d

at

1075.

A

court

ultimately

must

be

satisfied

that

“a

reasonable 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
5

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 of the nonmoving party’s claim. See Celotex, 477 U.S. at
325. 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
specific facts that establish a genuine issue for trial.

See,

e.g., id. at 325; Little, 37 F.3d at 1075.
DISCUSSION
A.

Ownership of the Barge
The first issue that must be resolved in this matter is

whether Cargill owned the Barge at the time of the incident. In
his Complaint, Plaintiff claims that as owner of the vessel,
Cargill may be held strictly liable for the injuries caused by
the condition of its Barge as well as for negligently failing to
clean the Barge. Moreover, despite not specifically including
6

claims
alleges

for
in

unseaworthiness
his

Opposition

in

his

that

Complaint,

as

the

Plaintiff

alleged

owner

of

now
the

Barge, “Cargill owed a warranty of seaworthiness to Mr. Rose.”
(Rec. Doc. 20, p. 3).
Cargill disputes that it either owned or operated the Barge
at the time of the incident. Instead, Cargill relies on the
affidavit of Bill Harding, the Fleet Manager at Cargo Carriers.
(Rec. Doc. 19-7). Mr. Harding attests that on the date of the
incident, “the barge HBM 3010 was not owned nor operated by, nor
is it currently owned or operated by Cargill, Inc. or any of
Cargill, Inc.’s subsidiaries or businesses.” (Rec. Doc. 19-7, p.
2).

Instead,

Mr.

Harding

states

that

at

the

time

of

the

incident, “the barge HBM 3010 was owned and operated by Bruce
Oakley.” (Rec. Doc. 19-7, p. 2).
In

response

to

this

argument,

Plaintiff

maintains

that

Cargill both owned and operated the Barge at the time of his
accident.

In

support

of

this,

Plaintiff

relies

on

a

“Marine

Survey” which allegedly identifies Cargo Carriers, a business of
Cargill,

as

Plaintiff’s

the

owner

assertion,

of
he

the
has

Barge.
failed

to

However,
attach

contrary
this

to

alleged

survey as an exhibit to his Opposition or otherwise provide it

7

to

the

Court. 1

Plaintiff

makes

no

reference

to

Cargill’s

allegations that the actual owner of the Barge was Bruce Oakley.
In its Reply, Cargill presents the Court with additional
evidence in support of its contention that it was not the owner
or operator of the Barge at the time of the incident. First,
Cargill

cites

surveyor

who

to

the

conducted

affidavit
the

of

marine

Kyle

Smith,

survey

the

relied

marine

upon

by

Plaintiff. In this affidavit, Mr. Smith acknowledges that the
survey is incorrect with regard to who owned the Barge. Mr.
Smith further admits that “a review of his records has confirmed
that neither Cargo Carriers, Inc. nor Cargill, Inc. were the
owner of HBM 3010.” (Rec. Doc. 24-1, p. 20). Moreover, Cargill
cites to a number of other pieces of evidence, including several
invoices issued from Cargo Carriers, Inc. to Oakley Barge Line,
Inc. and an electronic barge ticket for the HBM 3010, all of
which identify the owner of the Barge as “Oakley” or Oakley
Barge Line, Inc. (Rec. Docs. 24-1, pp. 8-10).
In light of this convincing evidence showing that Cargill
was not the owner or operator of the Barge at the time of the
incident,

as

well

as

Plaintiff’s

inability

to

present

any

1
Plaintiff has advised the Court that he attached the “Kyle Smith Marine
Surveying Report No. 13-0211” to his Opposition as Exhibit 2. However,
neither Exhibit 2 nor any of the other exhibits attached to this Opposition
are or include a marine survey.
8

evidence to sufficiently rebut this assertion, summary judgment
on Plaintiff’s claims for unseaworthiness, strict liability, and
negligence claims premised on Cargill’s ownership of the Barge
is warranted.
B. Plaintiff’s Claims Regarding Soybeans
In his Complaint, Plaintiff alleges that his injuries were
caused when he “slipped on soybeans that had been negligently
spilled

on

the

deck

of

the

Barge.”

(Rec.

Doc.

1,

p.

3).

Plaintiff first claims that Cargill “failed to exercise ordinary
care when directing [Plaintiff] to go onto the Barge to work
prior to ensuring that the deck of the barge was clean and clear
of spilled materials.” (Rec. Doc. 1, p. 4). Cargill argues that
this claim must be dismissed, because at all times while working
at

the

Cargill

supervision

of

facility,

his

employer,

Plaintiff
B&K,

was

and

was

under

the

direct

never

directed

or

supervised by Cargill.
In
argument

his

Opposition,

that

he

was

Plaintiff
never

fails

to

address

supervised

by

Cargill.

Cargill’s
Nor

has

Plaintiff, at any stage in these proceedings, provided the Court
with any evidence to indicate that Cargill ever directed him to
board the Barge prior to ensuring that the Barge was cleared of
the spilled soybeans. Because Plaintiff has failed to introduce
9

any evidence to show that Cargill ever supervised or directed
his

conduct

aboard

the

Barge,

his

claims

premised

on

these

arguments must be dismissed.
The

Court

must

next

consider

Plaintiff’s

claims

for

negligence and strict liability premised on Cargill’s failure to
notify him of or to clean up the soybeans prior to his entry
onto the Barge. With regards to these claims, Cargill argues
that it did not owe Plaintiff either a duty to warn him of the
location of the soybeans or to clean the deck prior to his
entrance, because the spilled soybeans were a condition that
Plaintiff, as cleaner of the Barge, was specifically hired to
remedy.

In

his

Opposition,

Plaintiff

fails

to

address

this

argument, and only briefly discusses his claims premised on the
spilled soybeans. 2
Plaintiff admits in his deposition that he was hired by B&K
as a “barge washer,” and that his role in this position was to
clean barges located at the Cargill facility. (Rec. Doc. 19-5,
p. 11). Plaintiff also admits that he has worked as a barge
washer

for

fifteen

to

twenty

years,

and

that

generally

the

materials he is hired to clean from the barges are “pretty much,

2

Plaintiff’s only argument with regard to these claims is that he was paying
attention while he was boarding the Barge, and that his failure to see the
soybeans prior to when he slipped on them was through no fault of his own.
(Rec. Doc. 20, p. 8).
10

soybeans,

corn,

[and]

meal.”

(Rec.

Doc.

19-5,

p.

17).

Accordingly, it is reasonable for Plaintiff to believe he would
encounter soybeans on the date of the incident, at which time he
was assigned to clean the Barge.
Courts within the Fifth Circuit have repeatedly recognized
that a vessel owner is not required to warn of or repair a
harmful

condition

which

causes

injury

to

a

person

hired

to

repair that condition. Casaceli v. Martech Inter., Inc., 774
F.2d 1322, 1330 (5th Cir. 1985) (quoting Stass v. Am. Commercial
Line, Inc., 720 F.2d 879, 883 (5th Cir. 1983) (“[A] ship may not
be found negligent merely because a condition of the ship that
requires

repair

inspect

or

omitted)).

or

inspection

repair
This

that

rule

injures

the

condition.”)

that

“an

person

(internal

employee

cannot

hired

to

quotations
recover

for

injuries received while doing an act to eliminate the cause of
the injury,” is well-established both within the Fifth Circuit
and elsewhere. Peters v. Titan Nav. Co., 857 F.2d 1342, 1345
(9th Cir. 1988); Johnson v. Continental Grain Co., 58 F.3d 1232,
1237 (8th Cir. 1995).
Here, it is undisputed that Plaintiff was hired to clean up
the

same

soybeans

on

which

he

allegedly

slipped.

Plaintiff

cannot, therefore, successfully assert that Cargill owed him a
11

duty to clean the soybeans prior to his boarding the Barge.
Accordingly,

Plaintiff’s

claims

against

Cargill

premised

on

Cargill’s liability for the presence of soybeans on the deck of
the Barge should be dismissed.
C. Plaintiff’s Claims Regarding Walkways
While

not

specifically

mentioned

in

his

Complaint,

Plaintiff alleges in his Opposition that Cargill should be found
liable for “turn[ing] over the cleaning of the barges to B&K
Contracting without providing safe walkways between the barges.”
(Rec. Doc. 20, p. 5). Plaintiff specifically contends that “the
use of a walkways [sic] with handrails for traversing the barges
would have prevented Mr. Rose’s fall.” (Rec. Doc. 20, p. 6).
In

his

subsequent

Complaint,
injuries

Plaintiff

were

alleges

directly

that

caused

by

his

fall

“slip[ing]

and
on

soybeans that had been negligently spilled on the deck of the
Barge.” (Rec. Doc. 1, p. 3). While adhering to this allegation,
Plaintiff further argues for the first time in his Opposition
that Cargill acted unreasonably by failing to erect a walkway or
ramp

between

contributed
Plaintiff

its

to
first

his

barges,
injury.

relies

on

and
In
his

that

this

support
own

of

failure
this

testimony

in

directly

contention,
which

he

describes that the water was rough at the time at which he fell.
12

(Rec. Doc. 20, p. 5). The only other evidence on which Plaintiff
relies

is

an

Occupational

Safety

&

Health

Administration

(“OSHA”) regulation which requires that “unless employees can
step

safely

to

or

from

the

wharf,

float,

barge,

or

river

rowboat, either a ramp meeting the requirements of paragraph
(b)(1) of this section or a safe walkway shall be provided.” 29
CFR 1926.605(b)(2).
First, it should be noted that Plaintiff’s failure to raise
this claim in his Complaint does not preclude the Court from
considering the claim. Instead, under Fifth Circuit precedent,
“when a claim is raised for the first time in response to a
summary judgment motion, the district court should construe that
claim as a
Civil

motion to amend the complaint under Federal Rule of

Procedure

15(a).”

Riley

v.

Sch.

Bd.

Union

Parish,

379

F.App’x 335, 341 (5th Cir. 2010) (citing Stover v. Hattiesburg
Pub.

Sch.

Sherman

v.

Dist.,

549

Hallbauer,

F.3d
455

985,
F.2d

989,
1236,

n.

2

1242

(5th
(5th

Cir.
Cir.

2008);
1972)).

However, after considering this delayed claim as a motion to
amend Plaintiff’s Complaint, the Court finds the claim to be
without merit.
Plaintiff fails to present any evidence in support of the
causation element of its claim for negligence premised on the
13

Barge’s lack of walkways. While Plaintiff asserts that the water
was rough at the time he fell overboard, he does not explain how
the existence of a walkway or ramp between the barges would have
alerted him to the location of the soybeans or prevented his
fall

into

the

water.

Plaintiff’s

Complaint

and

subsequent

deposition testimony is clear: he slipped only after stepping on
the soybeans on the deck of the Barge. In fact, Plaintiff notes
in his deposition that he slipped on the soybeans while taking
his second step on the barge. (Rec. Doc. 24-1, p. 14). This
admission indicates that Plaintiff was already aboard the Barge
at the time he slipped and fell overboard, not stepping onto the
Barge as Plaintiff’s claim for negligence implies. Plaintiff has
provided the Court with no support for his argument that the
existence
location

of
of

a
the

walkway

would

soybeans

and

have

alerted

prevented

him

Plaintiff
from

to

slipping

the
on

such. Accordingly, at this stage in the proceedings, Plaintiff
is unable satisfy the element of causation in his claim for
negligence.
CONCLUSION
Accordingly,
IT

IS

HEREBY

ORDERED

that

Cargill’s

Judgment (Rec. Doc. 19) is GRANTED.
14

Motion

for

Summary

IT IS FURTHER ORDERED that Plaintiff’s claims in the abovecaptioned matter are hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 1st day of July, 2015.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

15