Bailey v. R.L. Eldridge Construction, Inc., No. 09-08-00309-CV (Tex. App. 8/31/2009)
| Decision Date | 31 August 2009 |
| Docket Number | No. 09-08-00309-CV.,09-08-00309-CV. |
| Parties | PAUL BAILEY, JR., Appellant, v. R.L. ELDRIDGE CONSTRUCTION, INC., Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 172nd District Court, Jefferson County, Texas, Trial Cause No. E-179,329.
AFFIRMED.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
At the time of his injury, appellant Paul Bailey Jr. was employed by appellee R.L. Eldridge Construction, Inc. ("Eldridge") as a laborer in the construction crew. On September 27, 2006, Bailey fell over the handrail from the second deck of one of Eldridge's tugboats, the "Mr. Gabby." Bailey filed suit under the Jones Act alleging he was a seaman when he sustained injuries while working on a vessel owned by Eldridge. Eldridge filed a traditional motion for summary judgment asserting that Bailey was not a seaman under the Jones Act. The trial court granted Eldridge's motion finding that Bailey, as a matter of law, was not a seaman under the Jones Act, and dismissed Bailey's lawsuit in its entirety. After a motion for reconsideration filed by Bailey was denied, Bailey filed this appeal.
We review the granting of a traditional motion for summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We must determine whether the movant carried its burden to establish that there existed no genuine issue of material fact and that it was entitled to judgment as a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). We assume all evidence favorable to nonmovant is true, indulge every reasonable inference in favor of the nonmovant; and resolve any doubts in his favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). A defendant who moves for traditional summary judgment on the plaintiff's claim must conclusively disprove at least one element of the plaintiff's cause of action. Little v. Tex. Dep't. Of Crim. Justice, 148 S.W.3d 374, 381 (Tex. 2004). "Once the movant has established a right to summary judgment, the non-movant must expressly present any reasons seeking to avoid the movant's entitlement, and must support the reasons with summary judgment proof to establish a fact issue." Proctor v. RMC Capital Corp., 47 S.W.3d 828, 830-31 (Tex. App.-Beaumont 2001, no pet.).
"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, 2183, 132 L.Ed.2d 314 (1995) (citing 46 U.S.C. app. § 688(a)). However, the Jones Act does not define the term "seaman." Id. at 355. The Supreme Court in Chandris adopted a two part test for determining seaman status, previously articulated by the Fifth Circuit in Offshore Co. v. Robinson, 266 F.2d 769 (5th Cir. 1959):
First . . . an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission . . . .
Second, and most important . . . a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.
Chandris, 515 U.S. at 368 (citations omitted); see also Stewart v. Dutra Constr. Co., 543 U.S. 481, 495, 125 S.Ct. 1118, 1127-28, 160 L.Ed.2d 932, 946 (2005).1 The second prong of the Chandris test requires that an employee "perform a significant part of his work on board a vessel (or a finite group of vessels under common ownership or control) with at least a degree of regularity and continuity." Schultz v. La. Dock Co., 94 F.Supp.2d 746, 749 (E.D. La. 2000) (citing Chandris, 515 U.S. at 368-69)). With regard to determining whether an employee's connection to a vessel is substantial in duration, as a general rule, "[a] worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act." Chandris, 515 U.S. at 371; Roberts v. Cardinal Serv's Inc., 266 F.3d 368, 375 (5th Cir. 2001); see also Voight v. R.L. Eldridge Const. Inc., 422 F.Supp.2d 742, 749 (E.D. Tex. 2006).
The substantial connection requirement is meant to distinguish sea-based workers whose employment regularly exposes them "to the perils of the sea," from "primarily land-based workers who have only sporadic or tangential connections to navigation." Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 346 (5th Cir. 1999) (citing Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 555, 117 S.Ct. 1535, 1540, 137 L.Ed.2d 800 (1997)). "Therefore, seaman-status is determined by the employee's entire employment-related connection to a vessel, and not by the immediate circumstances or location of the plaintiff's injury." Id. (citing Chandris, 515 U.S. at 363). "[T]he inquiry into the nature of the employee's connection to the vessel must concentrate on whether the employee's duties take him to sea." Papai, 520 U.S. at 555.
When reasonable minds can differ as to a plaintiff's seaman status, the issue should be resolved by a jury. Voight, 422 F.Supp.2d at 749. However, absent evidence sufficient to raise a fact issue on each prong of the Chandris test, there is no evidentiary basis for the case to go to a jury. Id. When the undisputed facts establish that a maritime worker only has a "temporal connection" to vessels in navigation, the court may take the issue of seaman status from the jury by granting summary judgment or a directed verdict. Id. (citing Chandris, 515 U.S. at 371).
In support of its motion for summary judgment, appellee relies upon excerpts of the sworn deposition testimony of appellant and affidavits from Robert Reed and Darvis Eldridge, together with attachments to each.
Bailey was employed by Eldridge from June 26, 2006 until September 27, 2006, or sixty-two working days. It is undisputed that Bailey was not assigned, as part of his employment, to any of Eldridge's vessels. Bailey worked as a laborer on the construction crew, while employed by Eldridge. Following Bailey's injury, his supervisor, Robert Reed, created weekly logs of the work the construction crew did while Bailey worked for Eldridge.2 The logs were created roughly a week or so after Bailey's injury. Reed testified in his deposition that the logs were created from his memory, as well as the memories of the crane operator and three other members of the construction crew. Reed also consulted the company's invoices, but testified that the invoices did not specify the dates or the number of days worked on any particular job. The weekly logs provided by Reed were attached as an exhibit to his affidavit, which was submitted as summary judgment evidence. The weekly logs set forth the following with respect to the work performed by Bailey during his employment:
June 26 through June 30, Bailey "worked at fisherman reef repairing dock;" "worked on dock."
July 5 through July 7, Bailey "worked at fisherman reef repairing dock;" "worked on dock."
July 10 through July 15 Bailey "worked at vessel repair driving pipe;" "worked in the yard."
July 17 through July 21, Bailey "worked at vessel repair driving pipe;" "worked in the yard."
July 24 through July 25, Bailey "worked at fisherman reef driving piles with crane barge;" "worked on crane barge."
July 26 through July 28, Bailey "worked at fisherman reef building dock;" "worked on dock."
July 31 through August 4, Bailey "worked at fisherman reef building dock;" "worked on dock."
August 7 through August 11, Bailey "worked at vessel repair driving pipes;" "worked in the yard."
August 21 through August 25, Bailey "worked at Sunoco repairing dock with crane barge;" "worked on crane barge."
August 28 through September 1, Bailey "worked at fisherman reef driving piles with crane barge;" "worked on crane barge."
September 4 through September 8; September 11 through 15; and September 18 through 22, Bailey "worked at fisherman reef building docks;" "worked on the dock."
September 25 through September 26, Bailey "worked at Gabby's dock;" "worked at the yard."
The day of his injury, September 27, Bailey's crew "worked at the drydock with crane barge;" "worked on the crane barge."
Reed testified regarding the work Bailey did while employed by Eldridge and explained the work he had referenced in the weekly logs he created. According to Reed, during the time of his employment, Bailey worked repairing two docks that were damaged in Hurricane Rita and rebuilt another dock. With respect to the docks they repaired, Reed testified that Bailey "helped nail deck down." Reed explained that the wood was transported out to the work site on the E-9 crane barge. According to Reed, the crew would load the wood onto the crane barge, then float on the crane barge to the work site. The E-9 crane barge has no engine and had to be towed to the job site by one of Eldridge's tugboats. Reed testified that his crew never rode on the tugboat. The crane barge was spudded down and they used the crane to pick up the material and set it up on the dock. The crew then worked from the dock as they repaired it. Reed also testified they had "a little work barge" they sometimes worked off of while working on the docks. The work barge was used when driving pilings.
Reed testified that the crane barge was used on July 24 and July 25 to drive piles in connection with building a new dock. After the crew finished driving piles, they would "get on the bank and start building [the] dock from the bank out." They continued to work off the dock as they built it out. Reed testified that all four of his laborers, including Bailey, helped get material on and off the crane barge. Reed explained that while repairing docks, the only time the crane barge was used was to store and retrieve materials.
Reed was the person in charge of assigning his construction crew their tasks...
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