Hathorn v. Marquette Transportation Company, LLC
ORDER AND REASONS: IT IS ORDERED that the 35 motion is GRANTED and Plaintiff's claim against Defendant SOREC is DISMISSED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/8/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THOMAS JERMAINE HATHORN
COMPANY GULF-INLAND, LLC, ET AL.
ORDER AND REASONS
Defendant EMR, Inc., d/b/a Southern Recycling, LLC and/or
Southern Scrap Recycling’s (SOREC) motion for summary judgment is
opposition. Rec. Doc. 56. Defendant then sought, and was granted
leave, to file a reply. Rec. Doc. 61. For the reasons discussed
IT IS ORDERED that the motion (Rec. Doc. 35) is GRANTED
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Transportation Company Gulf-Inland, LLC on the M/V Good Shepard,
a tug boat. See Rec. Doc. 23 at ¶¶ 5, 7. On May 28, 2015, the Good
Mississippi, to pick up a barge. See Rec. Doc. 56-1 ¶ 16. The barge
had been at SOREC’s facility since May 21, 2018 and was loaded
with just over 1,000 metric tons of scrap metal. See Rec. Doc.
56-1 ¶¶ 4, 5. The barge had the capacity to hold 1,400 metric
material. See id. ¶ 5. Scrap material is loaded into the center of
the barge; the area containing the scrap material is surrounded by
a wall called a coaming barrier. See Rec. Docs. 35-4 at 11-40; 563 at 17. A walkway wraps all around the barge on the outside of
the coaming barrier. See id.
Before loading the barge, SOREC baled the scrap metal, which
involves compressing loose scrap metal into cubes. See Rec. Doc.
56-3 at 10-13. The cargo on the barge also included cars that had
themselves been compressed in the baler. See id. at 14. Each bale
weighs approximately 2,000 pounds and is “compact and dense,”
making it difficult to break a piece out of the bale. See id. at
12. The material on the barge was “domed,” which means that the
higher layers of scrap metal were set back from the edge of the
barge more than the lower levels were. See id. at 8. The material
was six to eight feet high at the center of the barge and “slightly
lower” at the edges. See id. at 17. There was no loose material on
top of the barge; all of the material stacked above deck had been
compacted into bales. See id. at 6. The captain of the Good Shepard
testified that the barge was loaded to the maximum height for this
type of cargo. See Rec. Doc. 56-5 at 5.
After loading the barge, SOREC employees checked the barge
for hazards, including materials on the walkway around the edge of
the barge. See Rec. Doc. 56-1 ¶¶ 6, 8, 9. Chris Covington, the
deputy manager of the SOREC facility in Gulfport, also photographed
the barge after loading was complete. See Rec. Doc. 35-4 at 3440. No tailpipe is visible on the walkway in the photos. See id.
Covington’s affidavit states that, in his opinion, the barge “was
loaded properly” and that the “load was typical and customary
. . . .” Id. at 3. Marquette also has a policy of performing safety
inspections when accepting new barges. See Rec. Doc. 56-1 ¶ 11.
Two Marquette employees performed a visual inspection of the barge
before setting sail; the inspection included checking the walkways
for hazards. See Rec. Doc. 61-2 at 8.
After picking up the barge on May 28, 2015, the Good Shepard
traveled to the Biloxi channel and picked up three other barges.
See Rec. Doc. 56-1 ¶¶ 17, 18. This involved disconnecting, moving,
and reconnecting the barge at issue in this case. See id. ¶¶ 18,
24, 25. Between nine and twenty hours later, at between 3:40 a.m.
and 5:30 a.m. on the morning of May 29, 2015, the Good Shepard
arrived at its destination, a SOREC facility in New Orleans. See
id. ¶¶ 21-22. The barge, including its walkway, was inspected two
more times during the voyage. Rec. Doc. 61-2 at 11, 20, 22-23, 27.
Plaintiff. See id. at 22.
When the Good Shepard arrived, the crew then separated the
barge at issue in this case from the others and began to secure it
to the dock. See Rec. Doc. 56-1 ¶ 24. While the Good Shepard
docked, Plaintiff was walking on the right side of the barge to
help secure the barge to the dock. See id. ¶¶ 25-27. Plaintiff
stepped on a tailpipe and fell backwards, suffering injuries. See
id. ¶¶ 23, 25-29. Under general maritime law, Plaintiff brought a
Plaintiff argues that SOREC was negligent in loading the barge.
See id. ¶ 17. SOREC then filed the instant motion for summary
judgment, arguing that it did not breach its duty of care to
plaintiff. See Rec. Doc. 35.
LAW AND ANALYSIS
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618. “This court will not assume in the absence of any
proof that the nonmoving party could or would prove the necessary
facts, and will grant summary judgment in any case where critical
evidence is so weak or tenuous on an essential fact that it could
not support a judgment in favor of the nonmovant.” McCarty v.
Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).
“Negligence is an actionable wrong under general maritime
law.” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211
(5th Cir. 2010). To succeed on a negligence claim, a “plaintiff
must demonstrate that there was a duty owed by the defendant to
the plaintiff, breach of that duty, injury sustained by the
plaintiff, and a causal connection between the defendant’s conduct
and the plaintiff’s injury.” Id. The instant motion turns on the
question of whether Defendant SOREC breached its duty to Plaintiff.
See Rec. Doc. 35 at 1.
A stevedore, one who loads a boat, owes a duty of “workmanlike
performance,” Southern Stevedoring & Contracting Co. v. Hellenic
Lines, Ltd., 388 F.2d 267, 270 (5th Cir. 1968), which requires it
“to perform its [contractual] duties with reasonable safety,”
Johnson v. Warrior & Gulf Navigation Co., 516 F.2d 73, 76 (5th
Cir. 1973). Defendant SOREC offers substantial evidence that it
took various steps to ensure the barge was safely loaded before
SOREC handed the barge over to Marquette. SOREC baled material
into cubes to make it less likely that material would move around
or come loose during transport. See Rec. Doc. 56-3 at 10-14. SOREC
arranged the bales in a “dome” to further mitigate the risk of
material falling out of the barge or onto the walkway around the
barge. See id. at 7-8. After loading was complete, SOREC employees
inspected the barge and did not observe any safety hazards. See
id. at 24-25. Photographs confirm Defendant’s testimony that the
barge was clean after loading. See Rec. Doc. 35-4 at 34-40. The
manager of the SOREC facility in Gulfport states in his affidavit
that the material on the barge was “typical and customary . . . .”1
Id. at 3.
Because Defendant’s evidence consistently demonstrates that
Defendant did not breach its duty to load the barge with reasonable
care, Plaintiff has the burden of demonstrating that a genuine
Plaintiff objects to the affidavit from Chris Covington, the SOREC facility
manager, on the grounds that Mr. Covington’s opinion lacks foundation because
Mr. Covington has no personal knowledge about how the barge was loaded. See
Rec. Doc. 56 at 1. Plaintiff’s argument is unpersuasive. Mr. Covington’s
affidavit states that he has worked for SOREC since 1989 and has been the
manager of the Gulfport facility since 1997. See Rec. Doc. 35-4 at 1. Moreover,
the affidavit states that Mr. Covington was “was involved with and participated
in the inspecting and surveying of the [barge] in May 2015.” Id. The affidavit
goes on to explain that Mr. Covington “personally took the photographs [of the
loaded barge] and viewed the [barge] . . . when loading had been completed.”
Id. at 3. There is foundation for Mr. Covington’s opinions about the state of
the barge after it was loaded because he has personal knowledge of the relevant
facts and the experience necessary to state that the load was similar to other
issue of material fact exists. See Matsushita, 475 U.S. at 586;
Lindsey, 16 F.3d at 618. Plaintiff fails to meet his burden because
he only musters speculation that SOREC breached its duty. See
McCarty, 864 F.3d at 357 (“This burden will not be satisfied by
some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla
of evidence.”). Plaintiff claims that he has presented “facts
showing that [SOREC] had knowledge that loads can shift, only baled
material should be above the coaming, it is not possible for a
tailpipe to break from a bale or compacted car, and Plaintiff
tripped on a tailpipe that necessarily was not connected to a
compacted car or in a bale as it should have been.” Rec. Doc. 56
But this is not an accurate statement of the evidence that
Plaintiff relies on. First, both Plaintiff and SOREC agree that a
barge load could theoretically shift, but Plaintiff cites no
evidence that the load in fact shifted on the barge where Plaintiff
was injured.2 Absent such evidence, there is no genuine issue of
fact about the stability of the barge load.
Second, Plaintiff implies that there was loose scrap material
above the coaming, but Plaintiff offers no evidence to substantiate
All that Plaintiff provides is testimony from the captain of the Good Shepard
that the barge’s load was as high as he has ever seen. See Rec. Doc. 56-5 at 5.
But this passing discussion does not indicate that the barge’s cargo was so
high as to be unsafe; the captain does not even state that the cargo was higher
than normal, just that this was as high as cargo had been in the past. See id.
that claim. See id. at 5. The only testimony about the contents of
the barge comes from Mr. Covington’s deposition. He testified that
“there [was] no loose scrap just laying across the top of this
barge.” Rec. Doc. 56-3 at 6. Mr. Covington testified that the only
material above the coaming was “baled material” and “tires.” Id.
at 13. Therefore, there is no genuine issue of material fact about
the composition of the load on the barge.
Finally, Plaintiff argues that a tailpipe could only have
broken free from one of the bales on the barge if the bale was
defective. But Plaintiff offers no evidence that the bale was
defective. Again, the only evidence comes from Mr. Covington’s
deposition. Mr. Covington testified that SOREC bales its own
material, that each bale weighs around 2,000 pounds, and that “you
would need a crane and a grapple to shake a [properly constructed]
bale apart . . . .” Id. at 10-12. Mr. Covington acknowledged that
a bale can fall apart on its own if improperly constructed, but
then proceeded to testify that the bales on the barge were “very
tight” and had no “density or compaction issues[.]” Id. at 12-13.
Even the cars on the barge had been compacted in the baler. See
id. at 15-16. Because Plaintiff has offered no evidence that the
bales were defective, there is no genuine issue of fact about the
quality of the bales. Therefore, Plaintiff has failed to meet his
burden under a specific negligence theory of liability.
In the interest of thoroughness, the Court will also discuss
the viability of Plaintiff’s claim under a res ipsa loquitur theory
of liability, even though Plaintiff did not himself raise the
argument. “Under res ipsa loquitur, a jury is permitted to infer
negligence on the part of the one who exercised control over an
item where that item has caused the damage and other plausible
explanations have been reasonably ruled out.” Naquin v. Elevating
Boats, LLC, 744 F.3d 927, 937 n.43 (5th Cir. 2014) (citing Brown
v. Olin Chem. Corp., 231 F.3d 197, 200-01 (5th Cir. 2000)). At the
requirements to continue under a res ipsa theory:
[(1)] more probably than not, that the injury was of a
kind which ordinarily does not occur in the absence of
negligence, [(2)] that the conduct of the plaintiff or
of a third person was sufficiently eliminated by the
evidence as a more probable cause of the injury, and
[(3)] that the indicated negligence was within the scope
of the defendant’s duty to the plaintiff.
Brown, 231 F.3d at 201. Plaintiff fails to meet his burden with
respect to, at least, the second requirement.
Plaintiff offers no evidence to rule out other causes of his
slip and fall on the boat, which is especially significant because
SOREC did not control the barge immediately prior to the accident.
First, the day before picking up the barge, high wind and storm
warnings were included on the boat log for the Good Shepard. See
Rec. Doc. 35-7 at 1-2. If these conditions persisted, it could
have had an impact on the stability of the barge. But Plaintiff
does not rule out this realistic possibility. Second, Marquette
has a policy of inspecting new barges for safety hazards before
accepting them and did so before picking up this barge. See Rec.
Docs. 35-6 at 11-14; 35-8 at 5; 56-1 ¶ 11; 61-2 at 11. After
accepting the barge, Marquette had sole custody of the barge for
at least nine hours. See Rec. Doc. 56-1 ¶ 22. During that time,
Marquette employees inspected the barge two more times, including
once just four hours before Plaintiff’s accident. See Rec. Doc.
61-2 at 27. None of these inspections raised concern about how
SOREC had loaded the barge. Third, the crew of the Good Shepard
reorganized the barges in their tow after leaving the Gulfport
facility, and the Captain of the Good Shepard testified that these
maneuvers could cause scrap metal to fall onto the walkways (though
it had not happened before). See Rec. Doc. 61-2 at 19-20, 25. This
risk that material could come loose during transit is why Marquette
requires barges to be inspected so frequently. See id. Finally,
the captain of the Good Shepard testified that another member of
the crew saw the tailpipe just before Plaintiff’s accident, but
did not warn Plaintiff that the tailpipe was on the walkway. See
Rec. Docs. 56-5 at 2; 61-2 at 24.
While a closer question then Plaintiff’s specific negligence
theory, Plaintiff has not met his burden at the summary judgment
stage under a res ipsa theory of liability because he has not
“sufficiently eliminated” the possibility that other people or
things caused the accident. See Brown, 231 F.3d at 200-01 (granting
plaintiffs’ injuries, because plaintiff had not produced evidence
that defendant’s alleged breach was the probable cause of the
injury); cf. Toney v. U.S. ex rel Dept. of Army, 273 F. App’x 384,
judgment because plaintiff was able to offer “testimony” that
“sufficiently eliminate[d] the conduct of the plaintiff or of a
third person as a more probable cause of the injury”).
New Orleans, Louisiana, this 8th day of March, 2018.
SENIOR UNITED STATES DISTRICT JUDGE
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