Dufrene v. Hospitality Enters., Inc.
| Decision Date | 03 March 2021 |
| Docket Number | CIVIL ACTION NO. 19-13748 |
| Citation | 523 F.Supp.3d 913 |
| Parties | Dalton DUFRENE v. HOSPITALITY ENTERPRISES, INC. et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Hugh Palmer Lambert, Cayce Christian Peterson, Jay Christopher Zainey, Jr., Jacki Lyall Smith, Lambert Firm, APLC, New Orleans, LA, for Dalton Dufrene.
William Bryon Schwartz, Jill Schultz Willhoft, Baldwin, Haspel, Burke & Mayer, LLC, New Orleans, LA, for Hospitality Enterprises, Inc., New Orleans Paddlewheels, Inc.
Katharine Rachael Colletta, Adelaida J. Ferchmin, Chaffe McCall LLP, New Orleans, LA, for Ascot Insurance Company.
SECTION "R" (4)
ORDER AND REASONS
Before the Court is defendant New Orleans Paddlewheels, Inc.’s motion for summary judgment.1 Plaintiff Dalton Dufrene opposes the motion.2 The Court grants defendant's motion in part, dismissing plaintiff's claims under the Jones Act, general maritime law, and Louisiana law. The Court denies defendant's motion as to plaintiff's negligence claim under § 905(b) of the Longshoremen and Harbor Workers Compensation Act, 33 U.S.C. § 901, et seq. ("LHWCA").
This case arises from injuries that Dufrene allegedly suffered while working aboard the RIVERBOAT LOUIS ARMSTRONG. According to marketing material that plaintiff submitted with his response to defendant's motion, the LOUIS ARMSTRONG is a "music and event venue"3 with a capacity of up to 3,000 people.4 The LOUIS ARMSTRONG's pilot, Paul Keller, attests in an affidavit that he began working on the vessel in 1997.5 According to Keller, at that time, the ship was named the CITY OF EVANSVILLE, and it operated as a floating casino in Evansville, Indiana.6 Keller states that, from 1997 to 2002, the CITY OF EVANSVILLE navigated daily on the Ohio River, as required by Indiana law for a casino.7 Keller attests that, in 2002, Indiana law changed such that casinos were no longer required to navigate.8 From that point on, the CITY OF EVANSVILLE was continuously moored to its dock, and it ceased navigation activities.9
New Orleans Paddlewheels, Inc. ("NOP") purchased the CITY OF EVANSVILLE on October 30, 2017, according to an affidavit by Craig Smith, NOP's director of marine operations.10 Smith attests that, after some modifications to prepare the ship for towage, the CITY OF EVANSVILLE was brought to Conrad Industries in Amelia, Louisiana.11 At Conrad Industries, the ship was, "completely gutted."12 During this time, NOP also changed the vessel's name to the RIVERBOAT LOUIS ARMSTRONG.13 The LOUIS ARMSTRONG was moved again in October 2018 for further renovation work.14 Finally, in July 2019, it was towed to the Orange Street Wharf on the east bank of the Mississippi River in New Orleans, Louisiana, where it remained continuously moored, and underwent final renovations.15
Plaintiff began working aboard the LOUIS ARMSTRONG on August 6, 2019.16 On September 10, 2019, plaintiff allegedly fell from a ladder and injured his lower back.17 He filed this lawsuit on November 11, 2019, alleging five claims: (1) negligence under the Jones Act, 46 U.S.C. § 30101 ;18 (2) unseaworthiness under general maritime law;19 (3) maintenance and cure under general maritime law;20 (4) negligence under the LHWCA, 33 U.S.C. § 905(b) ;21 and (5) negligence under the Louisiana Civil Code articles 2315, 2317, and 2317.1.22
Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). "When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co. , 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp. , 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983) ); see also Little , 37 F.3d at 1075. "No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." EEOC v. Simbaki, Ltd. , 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’ " Int'l Shortstop, Inc. v. Rally's, Inc. , 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease , 755 F. Supp. 948, 951 (D. Colo. 1991) ). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the "existence of a genuine dispute of material fact," or by "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex , 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for resolution. See, e.g. , id. ; Little , 37 F.3d at 1075 .
Plaintiff must show that he is a "seaman" to succeed on his claims under the Jones Act and general maritime law. Chandris, Inc. v. Latsis , 515 U.S. 347, 354, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). Although the term "seaman" is not defined in the Jones Act, the Supreme Court has explained that "Congress intended the term to have its established meaning under the general maritime law at the time the Jones Act was enacted." Id. at 355, 115 S.Ct. 2172. To qualify as a seaman, an employee must show (1) that his duties contributed to the function of a vessel or the accomplishment of its mission; and (2) that he had "a connection to a vessel in navigation (or to an identifiable group of vessels) that is substantial in terms of both its duration and its nature." Id. at 368, 115 S.Ct. 2172. The purpose of this test is to "separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea." Id.
Whether an individual is a seaman is "ordinarily a question of fact for the jury." Ellender v. Kiva Constr. & Eng'g, Inc. , 909 F.2d 803, 805 (5th Cir. 1990). But "summary judgment may be appropriate where ‘the facts establish the lack of seaman status beyond a question as a matter of law’ and no reasonable evidentiary basis exists to support a jury finding that the injured person is a seaman." Id. at 805-06 (quoting Barrett v. Chevron U.S.A., Inc. , 781 F.2d 1067, 1074 (5th Cir. 1986) ); see also Chandris , 515 U.S. at 371, 115 S.Ct. 2172 ().
Defendant contends that Dufrene was not a seaman because the LOUIS ARMSTRONG was not a "vessel in navigation."23 As the Fifth Circuit has defined it, the term "in navigation" means "engaged" as "an instrument of commerce and transportation on navigable waters." Williams v. Avondale Shipyards, Inc. , 452 F.2d 955, 958 (5th Cir. 1971) (citations omitted).
Defendant argues that the CITY OF EVANSVILLE was withdrawn from navigation in 2002, and it remained out-of-navigation for the remainder of the time that it operated as a "stationary, floating casino."24 In Pavone v. Mississippi Riverboat Amusement Corp. , 52 F.3d 560 (5th Cir. 1995), the Fifth Circuit held that the BILOXI BELLE, a "floating dockside casino" was not a vessel. In reaching that conclusion, the Fifth Circuit rejected the application of the "classical maritime methodology for determining, on the basis of a watercraft's unique physical and functional attributes," whether a craft is a "vessel." Id. at 568. Instead, it concluded that the BILOXI BELLE was not a vessel because it was both (1) "withdrawn from navigation" and (2) "a work platform." Id. at 570.
As the Pavone court explained, the "withdrawn from navigation" concept is used to distinguish "craft or structures that meet the general dictionary definition of ‘vessel’ from those that meet" the requirements under the Jones Act or general maritime law. Id. at 569. For example, a craft that has been "laid up for winter" is withdrawn from navigation, and therefore not a vessel. Id. (citing Desper v. Starved...
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