Lee v. Offshore Logistical & Transports, LLC

Filing 76

ORDER AND REASONS denying 65 Motion for Summary Judgment. Signed by Judge Susie Morgan on 12/20/2017. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELWOOD LEE,
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-2528

OFFSHORE LOGISTICAL &
TRANSPORTS, LLC,
Defendant

SECTION: “E”

ORDER AND REASONS
Before the Court is Defendant Offshore Logistical & Transport, LLC’s (“Offshore”)
motion for partial summary judgment on the issues of Jones Act negligence and
unseaworthiness. 1 Plaintiff Elwood Lee opposes the motion. 2 For the reasons that follow,
Offshore’s motion for summary judgment is DENIED.
BACKGROUND
Lee filed a complaint on July 10, 2015, pursuant to the Jones Act 3 and general
maritime law. 4 In his complaint, Lee alleges that on July 20, 2014, while aboard the M/V
BALTY, he “experienced an accident” on the stern deck resulting in “serious painful
injuries” to his knee and other parts of his body. 5 The parties agree that: (1) the M/V
BALTY was owned, operated, and/or controlled by Offshore; (2) Lee was an employee of
Offshore at the time of the accident; and (3) Lee was a seaman under the Jones Act at the
time of the accident. 6 It is undisputed that Lee, as the senior captain aboard the M/V
BALTY, was involved in getting “the boat organized” and performed “generalized

R. Doc. 65.
R. Doc. 70.
3 46 U.S.C. § 30104.
4 R. Doc. 1.
5 Id. at ¶¶ III–V.
6 Id.; R. Doc. 65-4 at 1, ¶ 3; R. Doc. 70-1 at 1, ¶ 3.
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maintenance.” 7 It is undisputed Lee did not see anything that gave him any “concern
about the ability to walk in [the] area” of the alleged injury. 8 Finally, both parties agree
there was no non-skid material on the deck of the M/V BALTY at the time of Lee’s injury. 9
The parties, however, dispute whether Offshore’s failure to apply non-skid paint
constituted negligence or rendered the M/V BALTY unseaworthy 10 and whether the lack
of non-skid paint contributed to Lee’s injuries. 11 Lee contends Offshore had the duty to
ensure there was a non-skid application on the deck, but Offshore asserts that Lee, as the
vessel’s captain, bears this duty.
On November 15, 2017, Offshore filed the instant motion for partial summary
judgment. 12 In its motion, Offshore contends Lee has no record evidence creating a
genuine issue of material fact with respect to Offshore’s negligence or whether the M/V
BALTY’s alleged unseaworthiness caused or contributed to Lee’s injury. 13 Lee timely filed
his opposition on November 21, 2017. 14
SUMMARY JUDGMENT STANDARD
Summary judgment is proper only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 15
“An issue is material if its resolution could affect the outcome of the action.” 16 When
assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
R. Doc. 65-4 at ¶ 4; 70-1 at ¶ 4.
R. Doc. 65-4 at ¶ 18; 70-1 at ¶ 18.
9 R. Doc. 65-4 at ¶ 25; 70-1 at ¶ 25.
10 R. Doc. 65-4 at ¶ 14; R. Doc. 70-1 at ¶ 14.
11 R. Doc. 65-4 at ¶¶ 28–29; R. Doc. 70-1 at ¶¶ 28–29.
12 R. Doc. 65.
13 Id.
14 R. Doc. 70.
15 FED. R. CIV. P. 56; see also Celotex, 477 U.S. at 322–23.
16 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
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the evidence.” 17 All reasonable inferences are drawn in favor of the non-moving party. 18
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law. 19
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion[] and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material
fact.” 20 If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, to satisfy Federal Rule of Civil Procedure 56’s burden, the moving
party must do one of two things: it “may submit affirmative evidence that negates an
essential element of the nonmoving party’s claim” or “demonstrate to the Court that the
nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” 21 When the moving party chooses the latter option it
must affirmatively show the absence of evidence in the record. This may
require the moving party to depose the nonmoving party’s witnesses or to
establish the inadequacy of documentary evidence. If there is literally no
evidence in the record, the moving party may demonstrate this by reviewing
for the court the admissions, interrogatories, and other exchanges between
the parties that are in the record. 22
If the moving party fails to carry this burden, the motion must be denied.
If the moving party successfully carries its burden, the burden of production then
shifts to the non-moving party to direct the Court’s attention to something in the
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
18 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
19 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell Energy,
Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
20 Celtic Marine Corp. v. James C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014) (quoting Celotex, 477 U.S.
at 323).
21 Celotex, 477 U.S. at 331.
22 Id. (internal citation omitted).
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pleadings or other evidence in the record setting forth specific facts sufficient to establish
that a genuine issue of material fact does indeed exist. 23 Thus, the non-moving party may
defeat a motion for summary judgment by “calling the Court’s attention to supporting
evidence already in the record that was overlooked or ignored by the moving party.” 24
“[U]nsubstantiated assertions are not competent summary judgment evidence.” 25
Rather, “the party opposing summary judgment is required to identify specific evidence
in the record and to articulate the precise manner in which that evidence supports his or
her claim. ‘Rule 56 does not impose upon the district court a duty to sift through the
record in search of evidence to support a party’s opposition to summary judgment.’” 26
DISCUSSION
The Jones Act provides a seaman with a cause of action against his employer for
injuries sustained as a result of his employer’s negligence. 27 A seaman may recover
damages under the Jones Act if his employer’s negligence was the legal cause, in whole or
in part, of his injury. 28 At trial, Lee must establish that Offshore had a duty to provide a
reasonably safe place to work, Offshore breached that duty, and Offshore’s negligence
caused his injuries. Lee bears a “featherweight” burden of proof to establish causation for

Id. at 322–25.
Id. at 332–33.
25 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324).
26 Id. (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)) (citing Forsyth
v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)).
27 Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997).
28 Id.
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a Jones Act negligence claim and need only show that his employer contributed to his
injuries “in the slightest degree.” 29
Independent from a Jones Act claim, a seaman may claim his injuries were caused
by the unseaworthiness of a vessel under general maritime law. A vessel is deemed
unseaworthy if a condition of the vessel presents an unreasonable risk of harm to the
seaman. 30 The two elements of an unseaworthiness claim are: (1) the vessel or the vessel’s
equipment was not reasonably fit for its intended purpose, and (2) the “unseaworthy
condition played a substantial part in bringing about or actually causing the injury and
that the injury was either a direct result or a reasonably probable consequence of the
unseaworthiness.” 31 A vessel owner’s duty to prevent unseaworthy conditions is absolute,
continuing and nondelegable, and lack of knowledge or of opportunity to correct such
conditions does not mitigate the owner’s duty. 32 At trial, Lee will bear the burden of
proving: (1) Offshore’s negligence was a legal cause of his injuries, and (2) that the
unseaworthiness of the M/V BALTY was the proximate cause of his injuries.
Offshore argues it is entitled to judgment as a matter of law on Lee’s Jones Act
negligence claim and his unseaworthiness claim. Rule 56 states, “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” 33 When assessing
whether a material factual dispute exists, the Court considers “all of the evidence in the

Gavagan v. United States, 955 F.2d 1016, 1019 (5th Cir. 1992).
Park v. Stockhill Boat Rentals, Inc., 492 F.3d 600, 604 (5th Cir. 2007).
31 Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). This is a “proximate cause” standard. Alverez
v. J. Ray McDermott & Co., 674 F.2d 1037, 1042–44 (5th Cir. 1982).
32 Allen v. Seacoast Products, Inc., 623 F.2d 355 (5th Cir. 1980).
33 FED. R. CIV. P. 56(a).
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record but refrains from making credibility determinations or weighing the evidence.” 34
All reasonable inferences are drawn in favor of the non-moving party. 35 “The use of
summary judgment is rarely appropriate in negligence . . . cases, even where the material
facts are not disputed.” 36 As the Fifth Circuit has explained:
Because of the peculiarly elusive nature of the term “negligence” and the
necessity that the trier of facts pass upon the reasonableness of the conduct
in all the circumstances in determining whether it constitutes negligence, it
is the rare personal injury case which can be disposed of by summary
judgment, even where the historical facts are concededly undisputed. 37
Thus, a court will grant summary judgment in a negligence case only in “rare
circumstances.” 38
This reasoning is particularly applicable to Jones Act cases. “Because of the policy
of providing an expansive remedy for seamen, submission of Jones Act claims to a jury
requires a very low evidentiary threshold; even marginal claims are properly left for jury
determination.” 39 “Summary judgment is rarely granted in maritime negligence cases

34 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008); see also
Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 150–51 (2000).
35 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).
36 Davidson v. Stanadyne, Inc., 718 F.2d 1334, 1338–39 (5th Cir. 1983) (citing Marsden v. Patane, 380
F.2d 489, 491 (5th Cir. 1967); Gross v. Southern Railway Co., 414 F.2d 292, 296 (5th Cir.1969); Croley v.
Matson Navigation Co., 434 F.2d 73, 75 (5th Cir.1970); King v. Avtech Aviation, Inc., 655 F.2d 77, 78 (5th
Cir. 1981); 10A Wright, Miller & Kane, Federal Practice and Procedure § 2729 at 195 (1983)).
37 Gauk v. Meleski, 346 F.2d 433, 437 (5th Cir. 1965).
38 Davidson, 718 F.2d at 1339 & n.8 (“In tort actions in which determinations of a less “elusive nature,” such
as the existence of an agency relationship, waiver, or whether a plaintiff is in a class protected by a statute,
are dispositive, summary judgment may more often be appropriate.” (citing 10A Wright, § 2729 at 197–
201)); see also Keating v. Jones Development of Mo., Inc., 398 F.2d 1011, 1015 (5th Cir. 1968) (“Negligence
is a seldom enclave for trial judge finality. Negligence is a composite of the experiences of the average man
and is thus usually confined to jury evaluation.”).
39 Leonard v. Exxon Corp., 581 F.2d 522, 524 (5th Cir. 1978) (citing Barrios v. La. Construction Materials
Co., 465 F.2d 1157, 1162 (5th Cir. 1972)).

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because the issue of whether a defendant acted reasonably is ordinarily a question for the
trier of fact.” 40
In this case, the jury must determine whether Offshore’s actions or inactions
contributed to Lee’s injuries “in the slightest degree.” 41 Lee alleges he was walking the
deck, which undisputedly did not have non-skid paint applied to it, “when [he] turned, . .
. [and his] leg [went] in the opposite direction.” Based on this testimony and the
aforementioned undisputed facts, a reasonable jury could infer that the lack of non-skid
paint caused Lee to slip and injure his knee. This determination ultimately is for the trier
of fact. 42 Further, as comparative fault is applicable to Jones Act negligence cases, 43 even
if the jury were to conclude Offshore’s alleged negligence in some way caused Lee’s
injuries, the jury would also have to determine whether and to what extent Lee’s own
actions or inactions contributed to his injuries. 44 “A jury is well suited for resolving this
type of fact-intensive dispute based on well-settled legal principles.” 45
With respect to Plaintiff’s unseaworthiness claim, that the M/V BALTY’s deck did
not have non-skid paint applied to it is undisputed. The parties dispute, however, whether
this lack of non-skid paint was unreasonable in light of the vessels’ intended purpose.
Courts have found that “the absence of non-skid tape or some other appropriate skid
resistant surface” may render a vessel unseaworthy. 46 This inquiry is fact intensive and

40 Schoenfeldt v. Schoenfeldt, No. 13-5468, 2014 WL 1910808, at *3 (W.D. Wash. May 13, 2014) (citing
Christensen v. Georgia–Pacific Corp., 279 F.3d 807, 813 (9th Cir. 2002)); see also id (“Questions of
forseeability and causation” in Jones Act negligence cases “particularly lend themselves to resolution by a
jury” (citing Wyler v. Holland America Line–USA, Inc., 348 F. Supp. 2d 1206, 1210 (W.D. Wash. 2003))).
41 Gavagan, 955 F.2d at 1019.
42 See Leonard, 581 F.2d at 524.
43 See Gautreaux, 107 F.3d at 339.
44 Id.
45 Sartin v. Cliff's Drilling Co., No. 03–1825, 2004 WL 551209, at *1 (E.D. La. Mar. 18, 2004).
46 See Courville v. Cardinal Wireline Specialists, Inc., 775 F. Supp. 929, 936 (E.D. La. 1991); see also
Thomas v. SHRM Catering Servs., Inc., No. 07-1177, 2009 WL 928640 (E.D. La. Mar. 25, 2009).

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requires the jury to balance many factors—in this case, for example, the jury will be
required to consider the kind of friction created by rough deck boards, such as the deck
boards on the M/V BALTY, and whether such boards provide a safe walking surface
without non-skid paint—before deciding whether the risks presented in the absence of
non-skid paint are unreasonable. 47 Further, should the jury find the failure to apply nonskid paint was unreasonable, the jury must then determine whether the lack of non-skid
paint “played a substantial part in bringing about or actually causing the injury and that
the injury was either a direct result or a reasonably probable consequence of the
unseaworthiness.” 48 “[C]ausation under this definition is still a fact-intensive inquiry,
and summary judgment is similarly inappropriate at this time.” 49
Accordingly;
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Offshore Logistical & Transport,
LLC’s motion for partial summary judgment on the issues of liability for Jones Act
negligence and unseaworthiness under general maritime law, 50 be and hereby is
DENIED.
New Orleans, Louisiana, this 20th day of December, 2017.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

In re Crewboats, Inc., No. 02–2023, 2003 WL 21018858, at *2 (E.D. La. May 5, 2003); see also In re
Pellegrin, Adams, & Chauvin Towing Co., No. 12-156, 2013 WL 1155064, at *2 (E.D. La. Mar. 19, 2013).
48 Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). This is a “proximate cause” standard. Alverez
v. J. Ray McDermott & Co., 674 F.2d 1037, 1042–44 (5th Cir. 1982).
49 In re Crewboats, Inc., 2003 WL 21018858, at *2.
50 R. Doc. 65.
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