Douglas v. Chem Carriers, L.L.C.
Filing
74
ORDER granting 21 Motion for Partial Summary Judgment as stated herein. Signed by Judge Sarah S. Vance on 8/23/2019. (mm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANTHONY DOUGLAS
CIVIL ACTION
VERSUS
NO. 18-5529
CHEM CARRIERS TOWING, LLC
SECTION “R” (3)
ORDER AND REASONS
Before the Court is the motion for partial summary judgment from
defendant Chem Carriers Towing, LLC (“Chem Carriers”), to dismiss
plaintiff Anthony Douglas’s Jones Act negligence and general maritime
unseaworthiness claims.1 Because the Court finds that no disputed issues of
material fact exist and the law supports the defendant’s position, the Court
grants the motion.
I.
BACKGROUND
This case arises from a slip and fall on a boat. 2 On November 1, 2017,
Douglas was serving, under the employ of Chem Carriers, as the captain and
pilot of the M/V MISS DANIELLE, an inland pushboat.3 While on the ship,
1
2
3
R. Doc. 21.
See R. Doc. 21-2 at 2 ¶ 10, 4 ¶ 27.
Id. at 1 ¶ 1, 2 ¶ 10.
Douglas suffered an injury exiting the shower. 4 Specifically, his right foot
caught on the shower’s threshold as he was stepping over it.5 The interior
threshold is 9.5 inches high.6 The shower has no grab bars,7 and the tile floor
is not covered by a mat. 8 The vessel was docked and tied up at the time of
the accident.9
Douglas brings claims under the Jones Act, 46 U.S.C. § 30104, general
maritime law’s warranty of seaworthiness, and general maritime law’s
doctrine of maintenance and cure.10 Specifically, he argues that his employer
was negligent by providing a shower that amounted to an unsafe condition,
which caused his accident.11 He also argues that his employer’s failure to
allow him sufficient rest caused him to be fatigued, which contributed to his
injury.12
4
5
6
7
8
9
10
11
12
Id. 2 ¶ 10.
Id. at 4 ¶ 27.
Id. at 2 ¶ 16.
R. Doc. 44-2 at 3:1-3.
Id. at 4:2-10.
R. Doc. 21-2 at 3 ¶ 25.
R. Doc. 8 at 1 ¶ 1.
See, e.g., R. Doc. 36 at 15-16.
See, e.g., id. at 16.
2
Chem Carriers now moves for partial summary judgment on Douglas’s
negligence claim under the Jones Act and unseaworthiness claim under
general maritime law. 13 Douglas opposes the motion. 14
II.
LEGAL STANDARD
Summary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are
drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting
13
14
R. Doc. 21.
R. Doc. 36.
3
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “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 nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
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,
1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp.
948, 951 (D. Colo. 1991)). The nonmoving party can then defeat the motion
by either countering with evidence sufficient to demonstrate the “existence
of a genuine dispute of material fact,” or by “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
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
4
submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322
(emphasis added))).
III. DISCUSSION
Chem Carriers moves for summary judgment in its favor on two of
Douglas’s claims: (a) his negligence claim under the Jones Act and (b) his
unseaworthiness claim under general maritime law.15 The Court grants
summary judgment on both claims for Chem Carriers.
Plaintiff first asserts a negligence claim under the Jones Act, 46 U.S.C.
§ 30104. 16 The Jones Act affords a remedy to a “seaman injured in the course
of employment.” 46 U.S.C. § 30104; see also Chandris, Inc. v. Latsis, 515
15
16
R. Doc. 21.
R. Doc. 8 at 1 ¶ 1.
5
U.S. 347, 354 (1995). A Jones Act employer has a “duty to provide a safe
place for the seaman to work.” Colburn v. Bunge Towing, Inc., 883 F.2d 372,
374 (5th Cir. 1989). Consequently, “[a] seaman is entitled to recovery under
the Jones Act . . . if his employer’s negligence is the cause, in whole or in part,
of his injury.” Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th
Cir. 1997). But the Jones Act does not impose upon “employers a higher duty
of care than that required under ordinary negligence”; the standard of care
is that of a reasonable person under the circumstances. Id. at 339.
Additionally, “the employer must have notice and the opportunity to
correct an unsafe condition before liability attaches.” Colburn, 883 F.2d at
374. And shipowners do not have a responsibility to warn seamen of “open
and obvious” dangers. See Patterson v. Allseas USA, Inc., 137 F. App’x 633,
637 (5th Cir. 2005). Nevertheless, a seaman’s burden to prove causation
between his employer’s negligence and his injury is “very light.” O’Neill v.
Seariver Mar., Inc., 246 F. App’x 278, 280 (5th Cir. 2007) (quoting Martin
v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 548 (5th Cir. 1987)).
Plaintiff also asserts a cause of action for unseaworthiness under
general maritime law. 17 “A shipowner has an absolute nondelegable duty to
provide a seaworthy vessel.” Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th
17
Id.
6
Cir. 1991). “For a vessel to be found unseaworthy, the injured seaman must
prove that the owner has failed to provide a vessel, including her equipment
and crew, which is reasonably fit and safe for the purposes for which it is to
be used.” Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir. 2001).
Additionally, to recover under a theory of unseaworthiness, “the
plaintiff must establish a causal connection between his injury and the
breach of duty that rendered the vessel unseaworthy.” Id. at 527. The
standard of causation for an unseaworthiness claim is “more demanding”
than the Jones Act standard, “and requires proof of proximate cause.”
Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir.
1982).
To show proximate cause, “a plaintiff must prove that 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.” Brister, 946
F.2d at 355 (quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354
(5th Cir. 1988)).
The plaintiff broadly contends that the defendant bears liability for two
reasons: (1) the shower on the MISS DANIELLE was unsafe, and (2) the
7
plaintiff was suffering from fatigue attributable to the defendant’s actions.18
The Court will address each argument in turn.
A.
The MISS DANIELLE’s Shower
The plaintiff contends that the MISS DANIELLE was not reasonably
safe as a consequence of the shower’s threshold, lack of grab bars, and
flooring.19 The Court finds, though, that construing the facts in the plaintiff’s
favor, no genuine issues of material fact exist with regard to the shower’s
safety that would support the plaintiff’s claim. The shower is reasonably safe
for use by a seaman, and the plaintiff does not have a basis either for
contending that the defendant was negligent or that the defendant provided
an unseaworthy vessel.20
The plaintiff presents no admissible evidence to substantiate his
conclusion that the design of the shower is unsafe. The Court has excluded
the opinion of the plaintiff’s expert under a separate order. 21 Neither the
plaintiff nor his excluded expert identified any applicable regulations or
standards that apply to an uninspected towing vessel—or if so, that apply
See, e.g., R. Doc. 36 at 15-16.
See id.
20
See, e.g., id. at 12 (summarizing the plaintiff’s argument as “Chem
Carriers is liable under both the Jones Act and for the unseaworthiness of
the MISS DANIELLE due to the unsafe conditions of the shower which
caused Douglas’ injuries” (emphasis removed)).
21
See R. Doc. 73.
8
18
19
specifically to the design of a shower—which might substantiate the
plaintiff’s claim.22
For instance, the plaintiff’s expert contended that the defendant
violated regulations established by the Americans with Disabilities Act
(ADA).23 But the Court has neither been furnished with nor independently
discovered authority that the ADA applies to the design of this shower.
Similarly, the plaintiff’s expert contended that the defendant violated
regulations
established
Administration (OSHA).24
by
the
Occupational
Safety
and
Health
Although OSHA regulations do apply to
uninspected vessels in the absence of displacing Coast Guard regulations, see
Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 243-45 (2002), these
regulations do not govern the shower features that the plaintiff points to as
being unsafe—that is, the threshold height, tile floor, and absence of grab
bars.25
Specifically, OSHA regulations classify a “room used for . . .
See id. at 8-12.
See id. at 10-11. The plaintiff also has not suggested that he had a
disability before the incident.
24
See id. at 11-12.
25
See R. Doc. 36 at 15-16. The majority of the OSHA regulations that the
plaintiff’s expert cites apply to “accident prevention signs.” See, e.g., R. Doc.
33-5 at 30-32; see also 29 C.F.R. § 1910.145. But the plaintiff agrees that the
conditions of the shower were open and obvious. See R. Doc. 21-4 at 37:1322. And in the absence of evidence that the design of the shower was unsafe,
regulations regarding accident preventions signs are irrelevant.
9
22
23
showering” as a “[p]ersonal service room,”26 but do not provide relevant
specifications for the design of a shower in such a personal service room.
Regulations for “workroom[s]” 27 and “[w]alking-working surfaces”28–on
which the plaintiff’s expert relies—are not applicable.
Other expert evidence shows that the shower was not reasonably
unsafe.
Specifically, the defendant provides evidence from Joseph
Rodriguez, a shipbuilder who constructed about 300 vessels,29 including the
MISS DANIELLE. 30 The MISS DANIELLE was newly constructed in 2013. 31
Mr. Rodriguez attests that “[t]he shower on the M/V MISS DANIELLE is a
standard shower,”32 reflecting a design Mr. Rodriguez has replicated “on
approximately 100 vessels, for 50 to 60 different customers.” 33 Yet Mr.
Rodriguez has “never received any complaints from anyone that this shower
design is unsafe; defective; should be modified; that the thresholds are too
high; or that the flooring is unsafe.”34 Indeed, Mr. Rodriguez has “installed
this same design on at least one (1) vessel which was inspected, certified and
26
27
28
29
30
31
32
33
34
See 29 C.F.R. § 1910.141(a)(2); see also R. Doc. 33-5 at 30
See 29 C.F.R. § 1910.141(a)(3)(ii); see also R. Doc. 33-5 at 30.
See 29 C.F.R. § 1910.22(a)(3); see also, e.g., R. Doc. 33-5 at 30.
See R. Doc. 21-12 at 1 ¶ 4.
See id. at 1 ¶ 6.
See id.
Id. at 2 ¶ 12.
Id. at 2 ¶ 9.
Id. at 2 ¶ 10.
10
approved by both the American Bureau of Shipping and the United States
Coast Guard.”35
Even disregarding the defendant’s expert, the plaintiff’s lay testimony
has not raised a triable issue that the shower is hazardous. The plaintiff’s
brief identifies three design characteristics that he argues make the shower
unsafe: (1) the shower threshold was too high, (2) the shower lacked a grab
bar, and (3) the flooring in the shower was slippery. 36
First, construing the facts in the light most favorable to the plaintiff,
there is no triable issue as to whether the shower was reasonably a safety risk
because the threshold was too high. The plaintiff acknowledged that if any
risk existed, it was open and obvious,37 which does not require a warning
from a Jones Act employer. See Patterson, 137 F. App’x at 637. Furthermore,
the evidence would not support a jury’s finding that a risk actually did exist.
A threshold less than a foot in height is not so high that, in light of common
experience, one would not expect to be able to step over it. Indeed, Douglas
had previously used the shower on the MISS DANIELLE twice before
without incident. 38 Others had also used the shower without a problem.39
35
36
37
38
39
Id. at 2 ¶ 12.
See, e.g., R. Doc. 36 at 15-16.
See R. Doc. 21-4 at 37:13-22.
See id. at 14:1-10.
See R. Doc. 21-9 at 4:4-6.
11
The plaintiff cited no systematically collected data or study on accidents due
to vessel shower threshold heights that would support his argument. And
while Douglas may have worked on ships with lower thresholds, 40 the
existence of lower thresholds on some ships does not mean that the MISS
DANIELLE’s 9.5-inch threshold was unsafe. 41
Additionally, even if these lower thresholds effectively held back water,
as the plaintiff suggests,42 there is no reason why the maximum safe height
must equate to the minimum functional height. The plaintiff does not, for
instance, provide a biomechanical or technical analysis to substantiate his
claim that the MISS DANIELLE’s threshold proved hazardous to step over.
To the contrary, the evidence suggests that no one had previously
complained to the defendant about the shower.43
Indeed, the MISS
DANIELLE’s shipbuilder has used the same design on about 100 boats
across about fifty customers, without a single complaint.44 Indeed, he had
installed the same shower on a boat “inspected, certified and approved by
See R. Doc. 36-4 at 2 ¶¶ 7-8.
In fact, it does not even establish that the MISS DANIELLE’s threshold
was an outlier compared to all the ships the plaintiff had encountered in his
more than thirty years working on boats. See R. Doc. 21-4 at 3:25, 4:1-5.
42
See R. Doc. 36-1 at 1 ¶ 3. Mr. Rodriguez indicates that his shower
thresholds normally are a minimum of twelve inches high in order “to keep
the water inside the shower.” See R. Doc. 56-1 at 20:3-25.
43
See, e.g., R. Doc. 21-7 at 3:9-19.
44
See R. Doc. 21-12 at 2 ¶¶ 9-10.
12
40
41
both the American Bureau of Shipping and the United States Coast Guard.”45
Consequently, the plaintiff has provided no limiting principle to explain at
what height a threshold becomes unsafe—other than to state that since he
tripped over the current threshold, it is too high. The occurrence of an
unfortunate accident, though, does not alone create a triable issue of fact.
Second, construing the facts in the light most favorable to the plaintiff,
the evidence adduced does not support a finding that the shower was unsafe
because it lacked a grab bar. The plaintiff cites no applicable regulations
requiring grab bars for showers in vessels of this type. 46 And though the
shower does not have grab bars, the sides of the shower themselves provide
a surface that one can hold while entering or exiting the shower,47 and others
had used them for this purpose.48 The plaintiff himself had previously used
the side of the shower to “stabilize” himself.49 Indeed, when the plaintiff
tripped, he successfully “grabbed . . . the side of the shower to stop from
falling.” 50 The evidence also indicates that the boat was not in high seas or
subject to waves from passing vessels at the time of the incident.51 Rather it
45
46
47
48
49
50
51
See id. at 2 ¶ 12.
See R. Doc. 73 at 8-12.
See, e.g., R. Doc. 21-5.
See R. Doc. 44-2 at 7:14-23.
See R. Doc. 21-4 at 21:11-25, 22:1-7.
R. Doc. 44-1 at 9:9-11.
See R. Doc. 21-4 at 26:24-25, 27:1-3.
13
was tied up and docked. 52 Further, there have been no previous complaints
about the absence of a grab bar on this vessel53 or on any of the other vessels
of the same design furnished by the same shipbuilder.54 The record as a
whole, therefore, reveals that no rational trier of fact would find a genuine
dispute over whether the absence of grab bars caused the plaintiff’s incident.
Third, the evidence adduced does not create a triable issue that the
shower was unsafe because of the slipperiness of the floor. Even construing
the facts in the light most favorable to the plaintiff, the plaintiff’s slip did not
occur due to the shower’s tile. Indeed, the plaintiff explicitly stated that there
were not any problems with the shower’s tile.55 Furthermore, the evidence
suggests that such tile, although not omnipresent, is not uncommon in boat
showers. 56 The floor was covered in ceramic tile squares that were smaller
in scale than the tile on the shower wall and the floor outside the shower.57
The plaintiff cites no regulations or standard prohibiting vessels of this type
from having tile floors or requiring mats in showers.
52
53
54
55
56
57
See id. at 27:16-24.
See R. Doc. 21-9 at 5:11-15.
R. Doc. 21-12 at 2 ¶ 10
See R. Doc. 44-1 at 10:19-25.
See, e.g., R. Doc. 36-10 at 3:2-15; R. Doc. 36-12 at 5:1-4.
See R. Doc. 21-5; R. Doc. 21-6.
14
The Court does note that the shipbuilder who constructed the MISS
DANIELLE has previously used “paint chip flooring” on other ships,58
whereas the MISS DANIELLE’s owner installed tiles in the shower.59 But the
shipbuilder attributed his use of paint-chip flooring to aesthetics, not
because it created a nonslip surface.60 And the defendant never received any
complaints about the tile it used in the bathroom of the MISS DANIELLE. 61
Taken in conjunction, this evidence does not establish a triable issue of fact
about the shower’s flooring.
Overall, therefore, the plaintiff has not
presented a genuine issue of fact—other than the plaintiff’s unsupported
contention that an accident occurred and unsafe circumstances caused this
accident—that supports his claim.
Given this factual matrix, case law from the Fifth Circuit strongly
supports the Court’s granting the motion for summary judgment. The most
on-point authority is Jackson v. OMI Corp., 245 F.3d 525 (5th Cir. 2001). In
Jackson, the Fifth Circuit overturned a district court’s finding as clearly
erroneous when the lower court concluded that a doorway’s lack of a
handhold established negligence and an unseaworthy condition. See id. at
58
59
60
61
See R. Doc. 54-2 at 5:8-20.
See id. at 8:18-25, 9:1-11.
See id. at 6:1-12.
See R. Doc. 21-7 at 3:9-12.
15
528. Specifically, the Fifth Circuit found that a 17.75-inch coaming in a
doorway did not create liability—indeed, regulations required at least 15
inches. See id. Here, the threshold of the shower is even shorter—nearly half
the height of that in Jackson.62 Furthermore, in Jackson, the lack of a grab
bar in the doorway also did not justify a finding for the plaintiff, because a
person could use the side of the door as support. See id. Similarly here, the
sides of the shower provide steadying points.63 Finally, the Jackson court
found that “[a]ll the evidence, including [the plaintiff’s] own testimony,
points to the conclusion that [the plaintiff] simply tripped over the coaming.”
Id. Likewise here, the plaintiff himself acknowledges that the accident arose
when his foot caught on the threshold. 64 Jackson indicates, therefore, that
this Court should grant summary judgment.
The Court acknowledges that a handful of non-binding opinions have
allowed a case to proceed past summary judgment when an accident
occurred in a vessel’s shower. In Myers v. Hercules Offshore Services, LLC,
No. 13-4870, 2014 WL 2046072, at *3 (E.D. La. May 16, 2014), for instance,
Judge Lemmon found summary judgment inappropriate when the plaintiff
See R. Doc. 21-2 at 2 ¶ 16.
See R. Doc. 21-4 at 21:11-25, 22:1-7.
64
See, e.g., id. at 30:14-16 (“[M]y foot hung up, and I went to fall out and
I grabbed myself.”).
16
62
63
fell while showering. See id. at *1-3. Ultimately, though, Judge Lemmon
concluded that the vessel was “not unseaworthy for lacking handrails or mats
in the shower,” and that “[t]here are no regulations or other requirements
that such a vessel have handrails in the shower.” Myers v. Hercules Offshore
Servs., LLC, No. 13-4870, 2014 WL 5324974, at *3 (E.D. La. Oct. 17, 2014),
aff’d, 626 F. App’x 497 (5th Cir. 2015). Likewise, the older cases Welch v. J.
Ray McDermott & Co., 336 F. Supp. 383 (E.D. La. 1972), and Krey v. United
States, 123 F.2d 1008 (2d Cir. 1941), which “found that ocean-going vessels
were unseaworthy for failing to have handrails or mats,” Myers, 2014 WL
5324974, at *3, do not control this Court’s assessment of an inland
pushboat,65 tied and docked.66 Overall, therefore, the plaintiff has not
presented facts or law sufficient to establish a genuine issue of material fact
with regard to the shower’s safety.
B.
The Plaintiff’s Fatigue
In addition to his arguments that the design of the shower contributed
to the incident, the plaintiff also alleges that his fatigue—attributable to the
defendant’s actions—caused the accident.67 The Court finds, though, that
65
66
67
See R. Doc. 21-2 at 2 ¶ 10.
See R. Doc. 21-4 at 27:16-24.
See, e.g., R. Doc. 36 at 16.
17
construing the facts in the plaintiff’s favor, no genuine issues of material fact
exist with regard to the plaintiff’s fatigue that would support his claim.
As an initial matter, the plaintiff himself has never suggested that he
felt fatigued, or that any fatigue caused his accident. He did not note being
fatigued when he reported the accident to Chem Carriers, 68 or when he
visited a nurse after the accident.69 Similarly, the plaintiff points to no
medical record where he reported being fatigued. Indeed, he was deposed in
the proceeding and did not cite being fatigued as contributing to his fall. 70
Although the plaintiff asserts that he was told to travel to the place of his next
assignment following the end of his shift, 71 he also stated that he was not in
a rush to leave the boat. 72 In combination, these statements do not equate to
the plaintiff’s claiming he suffered from fatigue. Rather, as the plaintiff
himself explained during his deposition, the accident occurred because his
“foot hung up” on a 9.5-inch shower threshold. 73
See R. Doc. 33-8.
See, e.g., R. Doc. 21-11.
70
See, e.g., R. Doc. 33-2 at 8:3-13 (“Q. You claim an accident. I’m trying
to find out what you claim Chem Carriers did to cause or contribute to your
accident. You’ve stated the design of the boat and you said the threshold was
too high. A. Yes. Q. Was there anything that you felt was wrong with the
boat or that Chem Carriers did that caused or contributed to your alleged
accident? A. No.”).
71
See, e.g., R. Doc. 36-4 at 1 ¶¶ 3-4.
72
See R. Doc. 44-1 at 5:7-9.
73
See R. Doc. 21-4 at 30:14-15.
18
68
69
The plaintiff proffered an expert who claims that the plaintiff worked
longer than permitted by the Coast Guard’s “twelve-hour rule,” see 46 U.S.C.
§ 8104(h), and ergo was fatigued.74 That opinion has been excluded. 75 The
interpretation of the applicable statute is a matter for the Court. The statute
provides that “an individual licensed to operate a towing vessel may not work
for more than 12 hours in a consecutive 24-hour period except in an
emergency.” Id. The Court does not read this rule, as a general matter, to
suggest that an employer cannot allow a seaman to shower following a
twelve-hour shift without creating an unreasonably unsafe condition. And
in the context of this specific case, no evidence exists that the plaintiff’s work
caused him to suffer fatigue to such an extent that an able-bodied seaman
would be impeded from lifting his foot 9.5 inches over an open and obvious
shower threshold. Overall, therefore, no triable issue of fact exists with
regard to the plaintiff’s fatigue.
74
75
See R. Doc. 73 at 12.
See id. at 12-14.
19
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS the defendant’s partial
motion for summary judgment.
23rd
New Orleans, Louisiana, this _____ day of August, 2019.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
20
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