Bommarito v. Belle Chasse Marine Transp.
| Decision Date | 07 June 2022 |
| Docket Number | Civil Action 21-204 |
| Parties | BOMMARITO v. BELLE CHASSE MARINE TRANSPORTATION, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
BOMMARITO
v.
BELLE CHASSE MARINE TRANSPORTATION, ET AL.
Civil Action No. 21-204
United States District Court, E.D. Louisiana
June 7, 2022
SECTION “L” (5)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This litigation arises out of injuries that Bosit Bommarito, III (“Mr. Bommarito”) sustained on November 13, 2020 while in the course and scope of his employment as a welder with Belle Chasse Land Transportation. At the time of the incident, Mr. Bommarito was engaged in the construction of a foot dock or walkway. While standing on the dock, Mr. Bommarito was struck in the head and eye by a hook that was attached to the sling of a crane, which was located on a crane barge floating in the Mississippi River and being used in the construction of the dock. Mr. Bommarito was knocked off the dock and fell to the river batture below. Mr. Bommarito claimed injuries to his eye, skull, neck, shoulders, and back. Mr. Bommarito died on March 15, 2021, during the course of his treatment for these injuries, due to an overdose of drugs including fentanyl and xylazine.
Mr. Bommarito originally filed suit against his employer and the barge owner under the Jones Act and General Maritime Law. The complaint was later amended to include a claim under § 905(b) of the Longshore and Harbor Workers' Compensation Act (“LHWCA”), 33 U.S.C. §901 et seq. After Mr. Bommarito's death, his surviving children and his mother were substituted as Plaintiffs and the complaint was amended to include a wrongful death claim and a
claim for bystander damages. The Court, on a motion for summary judgment, dismissed the Jones Act claim and the case proceeded under § 905(b) of the LHWCA.
The case was tried to the Court without a jury, commencing on April 4, 2022 and ending on April 5, 2022. The Court has carefully considered the testimony of all witnesses, the exhibits entered into evidence, and the relevant entries in the record. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court enters the following Findings of Fact and Conclusions of Law. To the extent that any findings of fact may be construed as a conclusion of law, the Court adopts them as such. To the extent that any conclusions of law may constitute findings of fact, the Court adopts them as such.
I. FINDINGS OF FACT
1. Belle Chasse Marine Transportation, LLC (“Marine”) owns and operates a launch service on the lower Mississippi River, facilitating the transportation of personnel and goods to and from vessels traversing the river
2. Marine owns and operates transport vessels and barges to conduct its work. Belle Chasse Land Transportation, Inc (“Land”) provides shore-side support for Marine's launch service business
3. Marine and Land are closely related entities with the same ownership and upper management. Land does not have its own income; its expenses are paid by Marine. Land exists to provide services to Marine.
4. Land provides maintenance, repair, and construction work on Marine's infrastructure and vessels. Land employs a group of construction and repair workers to perform special projects.
5. Special projects include the construction of personnel docks, which are referred to as foot docks or walkways, to allow personnel to board their vessels.
6. In November of 2020, Land was building a foot dock at its Magnolia launch site on the Mississippi River. Marine's crane barge known as the OC 160 was used in this construction. The barge was approximately 130 feet in length and 30 to 40 feet in width. The barge was loaded with tools and materials from the Marine yard and towed to the work site by a tugboat. The workers arrived by trucks.
7. Mr. Bommarito was employed by Land as a welder on the Magnolia project. By November 13, 2020, the crew had already driven the pilings for the dock and installed the lateral I-beam supports. The next job was to lay out and install the grating for the walkway.
8. The grating consisted of 2-foot by 20-foot sections that had been fabricated in Marine's yard and transported to the work site by the OC 160 barge.
9. A two-lead sling was attached to the crane. At the end of each lead was a hook. These hooks were made at the Marine yard and were open hooks, without any latch.
10. The crew would attach one hook to one end of a section of grating and the other to the opposite end. The crane would then lift the section of grating off the deck of the barge and place it on the walkway supports.
11. Two sections of grating were laid side by side and welded together. The crew would then use a come-along to pull the grating along the I-beam supports to its final position.
12. To take some of the weight off and assist the workers in dragging the grating, the sling was hooked to the aft end of the grating; then, the crane would lift it slightly off the I-beam and the come-along would pull it into position.
13. Mr. Bommarito was assigned to signal the crane operator during this operation. However, because the hooks did not have latches, he had to hold on to each sling strap to remove the slack so the hooks would not slip out of the grating.
14. With his hands occupied, Mr. Bommarito was instructed to signal the crane operator by nodding his head to let the operator know when to raise the grating. Mr.
Bommarito would then step away and use the appropriate hand signal to tell the crane operator when to stop.
15. On the morning of November 13, 2020, Mr. Bommarito was engaged in the above process. While he was holding the sling straps to keep the hooks attached to the grating, and before he could step away to give hand signals, the part of the grating to which one of the hooks was attached failed. The hook swung free and hit Mr. Bommarito in his head and eye. This impact knocked Mr. Bommarito off the walkway to the ground approximately 10 feet below.
16. As a result of this incident, Mr. Bommarito suffered injuries to his eye, skull, neck, shoulder, and cervical spine.
17. Mr. Bommarito's injuries included an eye socket fracture that caused his eye to be sunken. This injury caused blurred vision and pain when moving his eyes. This injury would have required two surgeries to repair, but these surgeries were delayed and Mr. Bommarito did not receive these surgeries before his death.
18. Mr. Bommarito's injuries also included a fractured vertebra in his neck and a tear in his shoulder. On December 10, 2020, Mr. Bommarito underwent surgery to realign his spine and replace a damaged disc.
19. Due to his injuries, Mr. Bommarito suffered from constant pain, especially in his eye, head, neck, and back. Because of his pain and inability to care for himself, Mr. Bommarito moved into his parents' home. He needed to rely on others for help with daily tasks including dressing and bathing.
20. Mr. Bommarito's mother, who cared for him after his injuries, documented his condition in a diary. The diary illustrates that, in addition to consistent pain, Mr. Bommarito suffered from depression, irritability, insomnia, urinary incontinence, and other symptoms that significantly diminished his quality of life due to his injuries.
21. Mr. Bommarito was unable to drive due to his injuries and rarely left his home after the accident.
22. Due to his injuries and surgery, Mr. Bommarito received prescriptions for drugs to reduce his pain, including oxycodone and tramadol, which are opioid painkillers.
23. On March 15, 2021, 122 days after the original incident, Mr. Bommarito died. His death resulted from an overdose of fentanyl, xylazine, and diazepam. Mr. Bommarito died in his parents' home and his mother attempted to resuscitate him by performing CPR.
24. Fentanyl is a synthetic opioid. Mr. Bommarito did not have a prescription for fentanyl. Xylazine is a tranquilizer typically used for horses. Xylazine is not available for prescription to humans.
25. Mr. Bommarito did not have a history of illicit drug use or substance abuse prior to his death. The evidence supports the conclusion that the reason he took the drugs that caused his overdose was to relieve the intractable pain caused by his injuries.
26. During his life, Mr. Bommarito maintained close relationships with his two children and his mother. The mother of Mr. Bommarito's children died in 2019, leaving him as their only living parent. Mr. Bommarito's children were both minors at the time of his death; however, by the time of trial, his older child had reached the age of majority.
27. Though Mr. Bommarito's children lived with their maternal grandmother and not with him, he spoke to them daily and paid $350.00 per month for their support. He also frequently paid for gifts and other purchases for his children beyond this amount.
II. CONCLUSIONS OF LAW
a. Jurisdiction
In this case, Plaintiffs seek recovery under § 905(b) of the LHWCA, which gives a covered worker a tort cause of action against a vessel or vessel owner for vessel negligence. 33 U.S.C. § 905(b). For this claim to be viable, it must be within the Court's admiralty jurisdiction. See Margin v. Sea-Land Servs., Inc., 812 F.2d 973, 975 (5th Cir. 1987) (noting that § 905(b) does not provide an independent basis for admiralty jurisdiction). “[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). First, the “location test” depends on “whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” Id. The Admiralty Extension Act expressly provides that “[t]he
admiralty and maritime jurisdiction of the United...
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