Barner v. Missouri Gaming Co.

• Decision Date: 01 May 2001
• Parties: (Mo.App. S.D. 2001) Arthel Barner, Appellant v. The Missouri Gaming Company D/B/A Argosy Riverside Casino WD58508 0
• Court: Missouri Court of Appeals

48 S.W.3d 046 (Mo.App. S.D. 2001)

Arthel Barner, Appellant v. The Missouri Gaming Company D/B/A Argosy Riverside Casino

WD58508

Missouri Court of Appeals Western District

05/01/2001

Appeal From: Circuit Court of Platte County, Hon. Owens L. Hull, Jr., Judge

Counsel for Appellant: Richard C. Wallace

Counsel for Respondent: Robert W. Tormohlen

Opinion Summary: Arthel Barner appeals summary judgment in favor of the Missouri Gaming Company d/b/a Argosy Riverside Casino (Argosy) in his personal injury action. The trial court found that maritime law governed the case and that the three-year statute of limitations set forth in 46 U.S.C. section 763 barred the action. Mr. Barner contends that the trial court erred in applying maritime law and that material facts were genuinely disputed.

Division Four holds: (1) The incident forming the basis of this tort action satisfied all of the requirements of admiralty jurisdiction, and general maritime law applied to preclude this action. First, the alleged tort occurred aboard the Argosy IV, a fully functional riverboat manned by a captain and marine crew, which was moored dockside on the Missouri River, a navigable waterway. Second, considering the general features of the incident involved--a passenger injured on a riverboat on a navigable waterway due to the negligence of an employee on the riverboat--the incident had a potentially disruptive impact on maritime commerce. Finally, the relevant activity in this case as defined by the general conduct from which the incident arose was the transportation of passengers on a riverboat over a navigable waterway, which is undoubtedly a traditional maritime activity.

(2) Mr. Barner's additional arguments that state law preempts federal maritime law, that state interests prevail over federal interests under the facts of this case, and that the trial court should have extended the three-year statute of limitations period based on the federal equitable tolling doctrine were not raised in the trial court, therefore, they are not considered in this appeal. Finally, Mr. Barner conceded in oral argument of this case that he abandons his argument that material facts were genuinely disputed.

Robert G. Ulrich, P.J.

Arthel Barner appeals the summary judgment entered in favor of the Missouri Gaming Company d/b/a Argosy Riverside Casino (Argosy) in his personal injury action. The judgment of the trial court is affirmed.

Mr. Barner filed his petition for damages on April 1, 1999. In his petition, Mr. Barner alleged that he was a customer at Argosy, a casino located on board the Argosy IV riverboat, on June 16, 1995. He further alleged that while standing in an aisle waiting for a seat at a poker table, a waitress bumped into him spilling hot coffee on his right arm between his elbow and shoulder. As a result of the coffee spill, he flinched and jumped away tearing his right rotator cuff. Mr. Barner sought damages for his medical bill, past wage losses, and pain and suffering. The trial court granted Argosy's motion for summary judgment finding that maritime law governed the case and that the three-year statute of limitations set forth in 46 U.S.C. section 763 barred the action. This appeal followed.

On appeal, Mr. Barner claims that the trial court erred in granting Argosy's motion for summary judgment based on the running of the maritime statute of limitations. He contends that the trial court erred in applying maritime law because (1) the Argosy IV was not a vessel in navigation, (2) the alleged tort did not occur during the course of traditional maritime activity, (3) the incident did not have the potential of affecting maritime commerce, (4) state law preempts federal maritime law under the facts of this case, and (5) state interests prevail over federal interests in this case. Mr. Barner also contends that the trial court erred in granting summary judgment because material facts were genuinely disputed.¹ Finally, Mr. Barner claims that even if maritime law applied in this case, the trial court should have extended the three-year statute of limitations period based on the federal equitable tolling doctrine.

Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id.

Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. Facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. at 376. A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant's cause of action, (2) the non-movant, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. Id. at 381.

Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Id.

A party seeking to invoke admiralty jurisdiction over a tort claim must satisfy conditions of both location and a connection with maritime activity. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995); In re Complaint of Luhr Bros., Inc., 100 F.Supp.2d 1156, 1159 (E.D. Mo. 2000); Acceptance Ins. Co. v. SDC, Inc., 952 F.Supp. 644, 645 (E.D. Mo. 1997). The location prong addresses where the tort occurred. Id. In applying this test, a court must determine whether the tort occurred on navigable water or whether the injury suffered on land was caused by a vessel on navigable water. Id. The connection test raises two issues. First, a court must determine whether the incident has a potentially disruptive impact on maritime commerce. Id. The potential impact of an incident is determined by examining its general character. Sisson v. Ruby, 497 U.S. 358, 363, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990). The general features of the incident involved, not the actual effects of the incident on maritime commerce or the particular facts of the incident, must be assessed to determine whether such incident is likely to disrupt commercial activity. Id. Second, a court applying the connection test must determine whether the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. Grubart, 513 U.S. at 534; Luhr Bros., 100 F.Supp.2d at...