Armstrong v. Nat'l Shipping Co. of Saudi Arabia
| Decision Date | 10 November 2016 |
| Docket Number | CIVIL ACTION NO. 4:15-CV-868 |
| Parties | JORDAN ARMSTRONG, Plaintiff, v. NATIONAL SHIPPING COMPANY OF SAUDI ARABIA, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
In this personal injury case, Plaintiff Jordan Armstrong has alleged three causes of action—negligence under the Longshore and Harbor Workers' Compensation Act, breach of implied warranty, and common law negligence—against nine Defendants.
Pending before the Court are Motions for Summary Judgment filed by five of the nine Defendants—Robert Fischer, d/b/a Wallis Concrete Transport ("Fischer") (Doc. No. 194), National Shipping Company of Saudi Arabia (now known as Bahri) ("Bahri") (Doc. No. 229), Toyota Motor Credit Corporation ("Toyota") (Doc. No. 249), Shoppa's Material Handling Management, LLC ("Shoppa's") (Doc. No. 252), and IronPlanet, Inc. ("IronPlanet") (Doc. No. 257).
Also pending are Motions to Strike Plaintiff's Jury Demand filed by Bahri (Doc. No. 242), IronPlanet (Doc. No. 256), and Shippers Stevedoring Company ("Shippers") (Doc. No. 282), and Motions to Strike the Revised Report of Plaintiff's Testifying Expert filed by Toyota (Doc. No. 246), IronPlanet (Doc. No. 248), and Shoppa's (Doc. No. 253).
Finally, there are two Motions to Exclude the Testimony of Plaintiff's Expert, filed by IronPlanet (Doc. No. 251) and Shoppa's (Doc. No. 281).
After considering all of the Motions filed by Defendants, the responses thereto, and all applicable law, the Court determines that the Motions for Summary Judgment filed by Fischer, Bahri, Shoppa's and IronPlanet must be granted. Because these parties are dismissed from the lawsuit, the Motions to Strike Plaintiff's Jury Demand filed by Bahri and IronPlanet are denied as moot, as are the Motions to Strike the Revised Report of Plaintiff's Testifying Expert filed by IronPlanet and Shoppa's. The Motions to Exclude the Testimony of Plaintiff's Expert, filed by IronPlanet and Shoppa's are also denied as moot. Shippers' Motion to Strike Plaintiff's Jury Demand is denied. Toyota's Motion for Summary Judgment is partially denied.
Plaintiff Jordan Armstrong worked as a longshoreman for Ports America Chesapeake in Baltimore, Maryland. (Doc. No. 260-1 at 2.) On June 10, 2013, Plaintiff was tasked with moving a forklift that had been stowed on an inclined ramp of the M/V Saudi Tabuk during its voyage from Houston to Baltimore. (Id.) Plaintiff and the other longshoremen were instructed to restow the forklift on the vessel's weather deck pursuant to a stowage plan provided by the vessel owners. (Id.) It is undisputed that the wheels of the forklift were not chocked1 at the time the longshoremen approached. (Doc. No. 229 at 3-4.) Instead, six chains held the forklift in place—four on the uphill side and two on the downhill side. (Id.) Plaintiff testified that his crew confirmed that the parking brake was set on the forklift before beginning to unlash the chains. (Id.) While Plaintiff was preparing to remove the chains on the downhill side, his fellow longshoremen disengaged the uphill chains. (Id.) The forklift rolled down the inclined ramp,pinning Plaintiff between the forklift and cargo stowed two or three feet downhill from the forklift. (Id.) Another longshoreman got into the forklift, turned it on, and backed it up a few feet to free Plaintiff, but when the longshoreman exited the forklift, it rolled down again. (Doc. No. 275-2 at 3.) By this time, however, Plaintiff had already fallen onto the deck, and the forklift came to a stop against the downhill cargo. (Id.)
The forklift that injured Plaintiff was a 2008 Toyota model 7FDU80. (Doc. No. 249-1 at 1.) After it came "off-lease" in 2013, Toyota engaged a third-party contractor to inspect the unit. This third-party contractor, AutoVIN, inspected the forklift and concluded, in its report, that the parking brake was "not operational," but that the parking brake did have tension. (Doc. No. 276-8 at 2.) No other information about the parking brake was included in the report. Toyota then offered to sell the forklift to its dealers; the inspection report (hereinafter "Toyota Inspection Report") was made available to these dealers. (Doc. No. 249 at 4.) The forklift was considered for purchase by a Toyota dealer, Shoppa's, for use in a rental fleet. (Doc. No. 252 at 5.) However, after an inspection, Shoppa's determined that the cost of needed repairs combined with the purchase price was too high, and declined to purchase the forklift. (Id. at 6.) Shoppa's maintains that the parking brake was working when it was on Shoppa's lot, but that "it needed adjustment." (Id.) The forklift remained on Shoppa's lot while Toyota pursued other means of selling the forklift. (Doc. No. 257 at 6.)
Toyota then asked IronPlanet, an auction website with which Toyota had a contract, to auction the forklift. (Id. at 2.) Toyota did not make the Toyota Inspection Report available to IronPlanet. (Id. at 6.) Instead, an employee of IronPlanet conducted a "low functionality" inspection of the forklift on flat ground in a limited space. (Id. at 7.) Though the report(hereinafter "IronPlanet Report") noted that the master cylinder/brake control was "noisy," the report also indicated that the parking brake "stopped the machine while rolling." (Id.) The IronPlanet Report was made available on the IronPlanet website, and the forklift was ultimately purchased from the website by Reem Heavy Equipment on May 2, 2013. (Id. at 8.)
Reem Heavy Equipment engaged JBH Worldwide, LLC to arrange for transportation of the forklift from Shoppa's lot in Ft. Worth, Texas to Saudi Arabia. (Id. at 9.) Fischer, d/b/a Wallis Concrete Transport, was selected to transport the forklift from Fort Worth to the Port of Houston. (Id.) To get the forklift onto his truck trailer, Fischer lowered the front neck of the trailer to the ground, creating a ramp, and drove the forklift onto his trailer. (Id. at 10.) Fischer stated that he "didn't notice anything wrong" with the parking brake, and the forklift "didn't roll." Fischer drove his trailer to the Port of Houston, drove the forklift off his trailer, and parked it in a designated location. (Id.)
Shippers Stevedoring then loaded the forklift onto the Saudi Tabuk as "roll-on-roll-off" cargo. (Id.) Typically, a stevedore will drive the forklift onto the inclined ramp and park it. Next, the "lashing gang" chains the forklift. (Doc. No. 229 at 2.) There is some dispute about whether Shippers Stevedoring chocked and lashed the forklift or simply lashed it. Although an employee of Shippers Stevedoring testified that every forklift loaded onto the Saudi Tabuk that day was lashed and chocked, Plaintiff avers that the forklift arrived in Baltimore unchocked. (Doc. No. 260-1 at 3.)
The vessel, M/V Saudi Tabuk, is owned by Bahri. The Chief Officer of the vessel, Krzysztof K. Zydowicz, checked the lashings and parking brakes of all wheeled cargo before departure from the port of Houston. (Doc. No. 229-9 at 2.) Although Mr. Zydowicz testifies that the lashings on the forklift were tight and the handbrake was set, he did not notice any chocks inplace under the wheels. (Id.; Doc. No. 275-2 at 3.) Prior to the vessel's arrival in Baltimore, Bahri provided Ports America with a stowage plan that called for the shifting of certain roll-on-roll-off cargo from the garage to the weather deck. (Doc. No. 229 at 3.) The forklift was one of these items, and the injury occurred when Plaintiff and the other longshoremen attempted to unlash the forklift in order to move it to the weather deck.
After the accident, Bahri immediately requested an inspection by American Marine & Cargo, Inc., a company that conducts marine and cargo surveys. The inspector conducted a brake test and wrote in the report ("Marine Cargo Report") that the parking brake "is not functioning, Brake cables had stretched to max beyond further adjustment." (Doc. No. 276-2 at 6.) Regarding the cause of the incident, the report concluded:
Parking brake (which is the only brake when the forklift is not running) failure is apparent cause of subject incident compounded by improper method of lashing removal by stevedores. It is apparent that subject unit was shipped with its parking brake not functioning. Stevedores at Houston apparently did not realize its brake failure when received since it was on a flat ground. When loaded/secured on a steep ramp, apparently lashing chains were placed with its brake pedal applied and therefore stevedore may not have realized any issues with its parking brake failure. Vessel was not aware of any issues since none reported in Houston and unit did not move during voyage because it was in lashed condition and parking brake was in locked position. (Id.)
Before continuing on its journey to Saudi Arabia, a sign was placed on the forklift indicating that it had no brakes, and a similar entry was made in the bill of lading. The forklift was loaded onto a flatbed, lashed and chocked. (Doc. No. 275-3 at 9; Doc. No. 275-11 at 10.)
A. Summary Judgment Standard
Summary judgment is proper when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party.Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The court can consider any evidence in "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Crawford, 234 F.3d at 902.
The party moving for summary judgment bears the burden of demonstrating the absence of a genuine dispute of...
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