Rutherford v. Lake Michigan Contractors, Inc.

Decision Date14 February 2000
Docket NumberNo. 1:98CV769.,1:98CV769.
Citation132 F.Supp.2d 592
PartiesGene A. RUTHERFORD, Jr., Plaintiff, v. LAKE MICHIGAN CONTRACTORS, INC., Defendant.
CourtU.S. District Court — Western District of Michigan

Judith A. Schornack-Smith, Leonard C Jaques, PC, Detroit, MI, for plaintiff.

John A. O'Donnell, Belgrade & O'Donnell, PC, Chicago, IL, Joseph Sukup, Sukup & Grimm, PC, Grand Rapids, MI, for defendant.

OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MILES, Senior District Judge.

In his complaint filed in this action, plaintiff Gene A. Rutherford Jr. alleges that on August 20, 1997, while he was employed as a deckhand aboard the tug Shirley Joy, a vessel owned and operated by defendant Lake Michigan Contractors, Inc. ("LMC"), he sustained injuries when he slipped while attempting to face the tug to a barge.

Rutherford has asserted claims against LMC based on negligence under the Jones Act, 46 U.S.C.App. § 688 et seq., and unseaworthiness of the vessel under general admiralty and maritime law. The matter is currently before the court on a motion filed by LMC for summary judgment. Plaintiff Rutherford has opposed the motion. For the reasons to follow, the court grants the motion in part and denies it in part.

FACTS

LMC is a dredging company with headquarters in Holland, Michigan. As part of its business, LMC owns and operates various vessels used in its dredging operations. On August 20, 1997, Gene Rutherford was working for LMC as a deckhand aboard one of its vessels, the M/V Shirley Joy, a tugboat which LMC was using in a dredging project on the Genesee River in or near Rochester, New York. On that day, Rutherford alleges, he injured his back while assisting in the process of facing the Shirley Joy to one of LMC's barges which was being used in a dredging operation.

Three vessels are used during the dredging process: a dredge, a barge, and a tugboat. The Genesee River project involved LMC's dredger, the Ojibway. The Ojibway is equipped with a large crane, which is used for the purpose of loading a barge with debris removed from the riverbed during dredging. Once a barge is fully loaded with debris, a tugboat is used to push and/or pull the loaded barge to a dumping area (in this instance, Lake Ontario), where the debris is disposed. After dumping its load, the tug then returns with the empty barge to the dredging area, where the process is repeated. Specifically, the tug is used to maneuver the empty barge into position next to a loaded barge; the tug then detaches from the empty barge, which is held in place by the dredge's crane; and the tug lines are then "faced" to the loaded barge for purposes of transporting it to the dumping area. After the tug departs with its loaded barge, the dredge pulls the empty barge next to it, attaches, and resumes the loading process.

The barge is attached to the dredge with three cables, or lines, and to the tug by two lines. At the end of each cable is a hoop made of hemp, which is put over the cleats on the barge to "marry" the vessels. The hoop section alone weighs approximately 120 to 150 pounds. The responsibility of connecting and disconnecting the tug to the barge lies with the tug's deckhands. As part of the process of "facing" the barge to the tug, one of the tug's deckhands must remove the cable from the outside deck of the tug, passing it approximately six to 10 feet below to another deckhand, who attaches the cable to the barge. Rutherford alleges that he was injured while handing the bow hemp loop of the cable line to co-worker Mark Clapsadle, another Shirley Joy deckhand who was assisting on the barge. According to Rutherford, it was during this handingdown process that he experienced "a sharp pain" in his back.

After experiencing this "sharp pain," Rutherford climbed down from the tug to the barge in order to assist the dredging crew in "unfacing" the dredge line from the loaded barge. While attempting to lift the cable at the stern end of the barge, Rutherford further alleges, he felt "excruciating pain" and "blacked out." He was removed from the barge by the Coast Guard and taken to an ambulance ashore.

ANALYSIS

Summary judgment is proper where "the pleadings, 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." Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the burden of establishing the non-existence of any genuine issue of material fact and may satisfy this burden by "`showing'—that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). While inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Only factual disputes which may have an effect on the outcome of a lawsuit under the applicable substantive law are "material." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

JONES ACT AND UNSEAWORTHINESS CLAIMS

Plaintiff Rutherford claims that LMC "was negligent in ordering [him] to single handedly lift 120 lbs. of cable from the bow of the tug." Plaintiff's Response at 6. Rutherford also claims that LMC's vessel was unseaworthy "because it lacked sufficient personnel and contained defective and unsafe equipment." Id. at 9. Specifically, Rutherford claims that the cable, or line aboard the Shirley Joy, which was composed of steel, rendered the vessel unseaworthy because the steel line was heavier than another type of synthetic line (known as "Kevlar" line) which had also been used aboard LMC's vessels. In its motion, LMC argues that because Rutherford's claims of negligence and unseaworthiness are based merely on his being required to handle heavy cables, LMC is entitled to judgment as a matter of law on these claims.

"The Jones Act provides a cause of action in negligence for `any seaman' injured `in the course of his employment.'" Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (quoting 46 U.S.C.App. § 688(a)). "A seaman is entitled to recovery under the Jones Act, therefore, 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). "The elements of a Jones Act negligence claim are: duty, breach, notice, and causation." Ribitzki v. Canmar Reading & Bates, Ltd. Partnership, 111 F.3d 658, 662 (9th Cir.1997). See also Brantley v. Hollywood Casino-Aurora, Inc., No. 96C2082, 1998 WL 513089, at *2 (N.D.Ill. Aug. 14, 1998) ("A claim under the Jones Act requires a finding of negligent breach of duty and causation").

"Negligence may arise from a dangerous condition on or about the ship, failure to use reasonable care to provide a seaman with a safe place to work, failure to inspect the vessel for hazards or a variety of other breaches of the shipowner's duty of care." Id., 1998 WL 513089, at *3 (citation omitted). As noted above, Rutherford claims that LMC "was negligent in ordering [him] to single handedly lift 120 lbs. of cable from the bow of the tug." In other words, LMC's negligence is allegedly its failure to use lighter, synthetic cable and/or to provide Rutherford with assistance in handling the cable.

Negligence is "conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 437 (4th Cir.1999) (citations omitted). However, Rutherford must not only establish LMC's negligence, but also that his back injury was within the range of foreseeable risk from LMC's negligent conduct. Id. at 438. Why did the steel cable pose an unreasonable risk of harm, according to Rutherford? Because it was heavy.1

In Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60 (5th Cir. 1982), the plaintiff seaman alleged that he injured his back while lifting a 40 to 50 pound piece of scrap iron in order to throw it overboard. (The scrap iron had been left in the ship's engine room after repairs. The plaintiff and three co-workers had volunteered to perform overtime work jettisoning the metal.) The district court, which entered judgment in the plaintiff's favor, concluded that the negligence of the defendant vessel owner and the unseaworthiness of the vessel were proximate causes of the plaintiff's injuries. However, a divided panel reversed the decision, concluding that although the failure to secure the scrap iron constituted negligence and made the vessel unseaworthy, the plaintiff had failed to show that the defendant's actions were the cause of his injury. Noting that the debris would have to have been jettisoned in any event, the court stressed that the plaintiff had not been injured by the unsecured debris, but rather by disposing of it. Id. at 63. The majority decision also noted that the district court had expressly found that the defendant had not been negligent in permitting the plaintiff to undertake the job and that an adequate number of crewmen had been provided to accomplish the task. Id. at 61.

Here, Rutherford does not...

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