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
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