George v. Marquette Transportation Company Gulf-Inland, LLC et al

Filing 40

ORDER AND REASONS denying 32 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 6/28/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ANTHONY L. GEORGE

CIVIL ACTION

v.

NO. 16-1286

MARQUETTE TRANSPORTATION COMPANY
GULF-INLAND, LLC, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is Marquette Transportation Company GulfInland, LLC’s motion for summary judgment.

For the reasons that

follow, the motion is DENIED.
Background
This Jones Act litigation arises out of a lead deckhand’s
claim that he twisted his ankle and injured his back and hip after
tripping over rigging equipment cluttering the fleet deck on which
he was working.
Anthony L. George began working for Marquette Transportation
Company Gulf-Inland in March 2014 as a senior deckhand. Mr. George
was experienced and well trained as a deckhand, and he was familiar
with Marquette’s safety manual and vessel operating procedures.
1

Mr. George was promoted to leadman (lead deckhand) and in late May
2015, he started working aboard the towing vessel, M/V REDEEMER.
On June 6, 2015, Mr. George came on watch to build a tow that
the front watch had started.

As he was finishing building a tow

of empty barges with his subordinate coworker, Marquette deckhand
Caleb Smith, Mr. George crossed from the tow to the REDEEMER’s
fleet deck to retrieve a wire when he stepped on visible rigging
equipment, specifically, a coiled wire, and rolled his ankle. 1
Measuring 16 feet by 11 feet and located above the bow main
deck in between the pushknees, the fleet deck is customarily used
to store rigging equipment for tow operations.

It was industry

practice to store rigging equipment on the fleet deck, where it

The precise mechanics of the alleged incident are disputed. The
June 6, 2015 Marquette Personal Injury/Illness Report indicates
that Mr. George stepped on wire and rolled his right ankle. And
Caleb Smith states under oath that he witnessed Mr. George “step
directly on a bundle of wires, slowly fall over and ease himself
on to the fleet deck before grabbing his ankle despite having ample
walkway area on the REDEEMER’s fleet deck.”
But Mr. George
recently testified in his deposition not that he stepped on the
wire, but that “the wire kicked back” and “caught [his] ankle,”
which caused Mr. George to twist his ankle and fall on his right
hip and lower back. Mr. George explains that the wire that caused
him to fall was not properly coiled; it uncoiled and hit his right
leg, twisting his ankle. Mr. George says he fell on some ratchets
that were directly behind him on the fleet deck.
Mr. Smith
disputes this account; he says “[t]he eye of the wire did not catch
Anthony George’s ankle and did not spring out of its organized
stack; instead, George stepped directly on the wire and fell over
slowly.”
2
1

would be accessible for building tow.

Indeed, Mr. George was

familiar with this standard practice, which was routine while
working

for

employers.

Marquette

as

well

as

when

he

worked

for

prior

As a deckhand, it was Mr. George’s duty to keep the

fleet deck clean and organized; that is, after the process of
building tow is complete, Mr. George was tasked with organizing
the fleet deck.

Nonetheless, on the day of the incident, Mr.

George claims that there were no clear walkways, that “everything
(sic) that you step, you stepping on top of something.” 2
Prior to working for Marquette, Mr. George had worked for
other companies as a deckhand and was experienced in conducting
nearly identical tow operations on similar pushboats with fleet
decks.

While working for Marquette, Mr. George had attended over

100 weekly safety meetings and had signed daily safety reports on

This fact is disputed by Caleb Smith, who states under oath that
there was “ample walkway” on the fleet deck and that the REDEEMER
crew:
kept all tools, including rigging, wires, lines,
ratchets, and slings on the REDEEMER’s fleet deck so
that all equipment is easily accessible for working on
the tow. We kept all equipment in an organized manner
to allow sufficient walkways on the port and starboard
side of the equipment and around the individual sections
of the equipment[.]
...
At the time of [the] incident, the fleet deck was
organized with the rigging wires stacked three to four
high in a circular stack forming a square of four stacks
of wires[.]
3
2

the topics of safely building tow and tripping hazards. Mr. George
had crossed between the fleet deck and the tow safely hundreds of
times without prior incidents during his deckhand career, and in
his deckhand training, he was aware of the routine precautions for
transitioning between a vessel and a barge, including being aware
of his surroundings and tripping hazards, which deckhands are
trained to avoid.
On four separate occasions prior to his alleged accident, Mr.
George observed the rigging on the fleet deck.

Mr. George first

observed the rigging on the fleet deck when he came on watch.

He

noticed the rigging on the fleet deck a second time while he was
attempting to throw rigging equipment from the pushknee near the
fleet deck over to the tow.

Mr. George saw the rigging on the

fleet deck a third time as he went to cross over from the pushknee
of the REDEEMER onto the tow.

Finally, Mr. George saw the rigging

on the fleet deck for a fourth time just before his incident when
he looked down directly at the equipment as he stepped onto the
fleet deck.

Mr. George says he took a step to retrieve one wire

from the fleet deck to complete his task while another wire “kicked
back” and caused him to fall.
accident.

Caleb Smith witnessed Mr. George’s

Smith crossed over the same area without incident.

4

On

February

Transportation

15,

2016,

Company

Mr.

George

Gulf-Inland,

sued
and

LLC

Marquette
Marquette

Transportation Company, LLC, alleging that defendants’ negligence
under the Jones Act caused his injuries; he also alleges that the
defendants owe him maintenance and cure.

On April 29, 2016, the

Court

to

granted

the

plaintiff’s

Transportation Company, LLC.
Transportation

Company

motion

dismiss

Marquette

The remaining defendant, Marquette

Gulf-Inland,

LLC,

now

seeks

summary

judgment in its favor, dismissing the plaintiff’s Jones Act claim.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.
5

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
"[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence."

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, "[i]f the evidence is merely colorable . . . or is not
significantly probative," summary judgment is appropriate.

Id. at

249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994) (“Unauthenticated documents are improper as summary judgment
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the non6

moving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

Although

the Court must "resolve factual controversies in favor of the
nonmoving party," it must do so "only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts."

Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013)(internal quotation marks and citation
omitted).
II.
A.

Under the Jones Act, 46 U.S.C. § 688, a seaman’s employer is
liable for damages if the employer’s negligence caused the seaman’s
injury, in whole or in part.

Gautreaux v. Scurlock Marine, Inc.,

107 F.3d 331, 335 (5th Cir. 1997)(en banc).

To prevail in a Jones

Act negligence claim,
the plaintiff must present some evidence from which the
fact finder can infer that an unsafe condition existed
and that the vessel owner either knew, or in the exercise
of due care should have known, of the condition.

Martinez v. Offshore Specialty Fabricators, Inc., 481 Fed.Appx.
942, 945, 947 (5th Cir. July 25, 2012) (citing Perry v. Morgan
Guar. Trust Co. of N.Y., 528 F.2d 1378, 1379 (5th Cir. 1976)).

7

A Jones Act employer has the duty to provide his seaman
employees with a reasonably safe place to work.

Colburn v. Bunge

Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989).

The duty to

provide a safe place to work is broad in scope, but it is not a
form

of

strict

liability;

ordinary

prudence

under

the

circumstances is the standard for the duty of care owed by an
employer to a seaman.

Gautreaux, 107 F.3d at 335-36.

An employer

breaches that duty if it fails to exercise ordinary prudence and
is thereby negligent.

Id. at 339.

“A shipowner in a Jones Act

case has a duty to warn his employees ‘in an effective way of
dangers not reasonably known.’

In other words, shipowners need

not warn seamen of dangers that are ‘open and obvious.’” Patterson
v.

Allseas

USA,

Inc.,

137

Fed.Appx.

633,

637

(5th

Cir.

2005)(citations omitted).
For his part, a seaman is held to the standard of the
reasonable seaman in like circumstances.

Gautreaux, 107 F.3d at

339 (explaining that the circumstances include the employee’s
reliance on his employer to provide a safe working environment,
the

seaman’s

experience,

training,

or

education).

And

the

causation standard is the same for both the employer's negligence
and

contributory

party's

negligence:

"negligence

played

causation

any

part,

is
even

established
the

if

slightest,

the
in

producing the injury". See Martinez, 481 Fed.Appx. at 947 (quoting
8

Johnson v. Cenac Towing, Inc., 544 F.3d 296, 303 (5th Cir. 2008)).
However, more than mere "but for" causation must be established.
Johnson

v.

Cenac

Towing,

Inc.,

544

F.3d

296,

302

(5th

Cir.

2008)(citation omitted).
B.
To succeed on his Jones Act negligence claim at trial, Mr.
George must prove that Marquette’s negligent breach of duty caused
his injury; he must present some evidence from which the fact
finder can infer that an unsafe condition existed (here, the
allegedly

disorganized

rigging

equipment

cluttering

the

fleet

deck) and that Marquette knew or should have known of the unsafe
condition.

Marquette seeks judgment as a matter of law on the

ground that Marquette is not liable for plaintiff’s injuries, which
resulted from him tripping on an open and obvious hazard in an
area that he was responsible for keeping clean and organized, and
in an area he was familiar with and had experience with.

Mr.

George opposes summary judgment on the ground that triable issues
remain.
The defendant focuses its summary judgment argument on the
ground that it did not breach a duty to warn the plaintiff about

9

the presence of rigging equipment on the fleet deck. 3

However,

viewing the facts in the light most favorable to the plaintiff,
this duty to warn theory is not the one advanced by the plaintiff
in support of his Jones Act claim.

Rather, the plaintiff’s

testimony “I mean they didn’t have any walkways...everything (sic)
that you step, you stepping on top of something.

They didn’t have

no free walkway” forms the factual predicate for his Jones Act
claim.

And his manipulation of Rule 56.

By contending that the

cluttered fleet deck had no walkways, the plaintiff’s theory for
recovery is that Marquette (whose employees on the prior watch
allegedly left the fleet deck in this unsafe condition, which Mr.
George felt too rushed by the captain to clean up himself before
completing the task of building tow) breached its general duty to
provide a reasonably safe work environment. This is a simple case,
but triable issues remain.
There

is

one

factual

controversy

that

precludes

summary

judgment on the issue of whether Marquette beached its duty to
provide Mr. George with a reasonably safe place to work. 4 Marquette
submits evidence, through Mr. Smith’s sworn statement, that at the

If this was the sole theory of recovery advanced by the plaintiff,
the Court might agree with the defendant’s arguments in support of
its motion that it did not breach any duty to warn about the
presence of the rigging equipment.
4 Of
course, the Court need not reach the other triable issue
concerning comparative fault.
10
3

time of the incident, the fleet deck had “ample walkway,” that all
rigging equipment was kept in an organized and accessible manner
“with the rigging wires stacked three to four high in a circular
stack forming a square of four stacks of wires[.]”

If Mr. Smith’s

account is credible, then Marquette did not breach its duty to
provide a reasonably safe work environment.

But Mr. George’s

sworn deposition testimony -- in which he states that there was no
walkway because the workspace was cluttered with rigging equipment
left by the prior crew -- directly conflicts Mr. Smith’s, thereby
creating a triable issue concerning whether the fleet deck was
unreasonably cluttered to the point of rendering it unsafe. 5

The plaintiff suggests that the dispute concerning the mechanics
of his injury is also a genuine dispute concerning a material fact.
The Court disagrees. Although the parties dispute whether or not
Mr. George was injured when a wire “kicked back” twisting his
ankle, or whether Mr. George simply stepped on a coil of wire,
this issue is not material to the issue of whether or not the work
environment was reasonably safe.
Nevertheless, the Court is
compelled to observe that this is another issue pitting Mr.
George’s word against Mr. Smith’s.
Although this Court is
forbidden from making credibility determinations on summary
judgment, the jury will be charged with judging the credibility of
these witnesses, who have already given completely opposing sworn
statements. This causes concern that one or more of the parties
or witnesses to this case fails to appreciate the criminal
consequences of lying under oath. Counsel should be aware that
this Court will not hesitate to refer anyone suspected of perjury
to the United States Attorney’s Office and related agencies for
investigation.
11
5

III.
A.

In his opposition papers, the plaintiff argues the merits of
an unseaworthiness claim.

In its reply paper, the defendant

contends that no unseaworthiness claim was alleged in either the
complaint

or

amended

complaint.

The

Court

agrees.

In

his

complaint and amended complaint, Mr. George alleges only two
claims:

one

for

Jones

Act

negligence

and

a

second

regarding

Marquette’s obligation to provide maintenance and cure. Mr. George
has not alleged an unseaworthiness claim and, accordingly, no such
claim need be addressed by the defendant or by the Court.
B.
In his complaint and amended complaint, Mr. George seeks to
recover maintenance and cure. 6
“Maintenance

and

cure

is

an

ancient

duty

imposed

on

a

shipowner to provide for a seaman who becomes ill or injured during
his service to the ship.”
242 (5th Cir. 1996).

Silmon v. Can Do II, Inc., 89 F.3d 240,

This duty is implied in maritime employment

In his “second cause of action” pertaining to maintenance and
cure, Mr. George seeks to recover maintenance and cure, to recover
for arbitrary refusal to investigate and pay maintenance and cure,
as well as a claim for punitive damages for Marquette’s alleged
refusal to honor its cure obligation.
12
6

contracts and exists regardless of whether the shipowner was at
fault or the vessel unseaworthy.

O’Donnell v. Great Lakes Dredte

& Dock Co., 318 U.S. 36, 41-42 (1943); Guevara v. Maritime Overseas
Corp., 59 F.3d 1496, 1499 (5th Cir. 1995), abrogated on other
grounds by Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561
(2009).

“Maintenance” is the right of a seaman to food and lodging

if he becomes injured while performing his duties to the ship.
Guevara, 59 F.3d at 1499.
services.

“Cure” is the right to necessary medical

Id. 7

In its motion for summary judgment, Marquette does not mention
the plaintiff’s allegation that he is owed maintenance and cure or
damages associated with failure to pay maintenance and cure.
Because the Court has no facts before it on this issue, and there
is no indication by either party regarding whether or not Mr.
George has reached maximum medical improvement, the issue of
entitlement to maintenance and cure or damages for wrongful failure
to pay maintenance and cure cannot be considered at this time.

Before recovering maintenance and cure, the seaman bears the
burden of establishing: (1) his engagement as a seaman; (2) his
illness or injury occurred, was aggravated or manifested itself
while in the ship’s service; (3) the wages to which he may be
entitled; and (4) the expenditures or liability incurred by him
for medicine, nursing care, board and lodging. Harrison v. Diamond
Offshore Drilling, Inc., C.A. No. 07-417, 2008 WL 708076, at *14
(E.D. La. March 6, 2008)(Vance, J.)(citation omitted).
13
7

Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendant’s motion for summary judgment is hereby DENIED.
New Orleans, Louisiana, June 28, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

14