Ellis v. Tall Ships Charleston LLC

• Decision Date: 24 March 2022
• Docket Number: 2:18-cv-3588-DCN
• Court: U.S. District Court — District of South Carolina
• Parties: JERRY ELLIS and KEVEN ELLIS, Plaintiffs, v. TALL SHIPS CHARLESTON, LLC and AMERICAN SAIL TRAINING; ASSOCIATION d/b/a TALL SHIPS AMERICAN, Defendants.

JERRY ELLIS and KEVEN ELLIS, Plaintiffs, v. TALL SHIPS CHARLESTON, LLC and AMERICAN SAIL TRAINING; ASSOCIATION d/b/a TALL SHIPS AMERICAN, Defendants.

No. 2:18-cv-3588-DCN

United States District Court, D. South Carolina Charleston Division

March 24, 2022

ORDER

DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

The following matter is before the court on defendants American Sail Training Association d/b/a Tall Ships American (“Tall Ships American”) and Tall Ships Charleston, LLC (“Tall Ships CHS”)^[1] (together “defendants” or the “Tall Ships entities”) motion for summary judgment, ECF No. 58. For the reasons set forth below, the court grants the motion.

I. BACKGROUND

This action arises out of a slip-and-fall aboard a navy vessel named the FRAGATA (ARA) LIBERTAD (the “Libertad”). The Libertad is owned and operated by the Argentine Republic (“Argentina”). Tall Ships American and its local chapter, Tall Ships CHS organized a tall ships festival held in North Charleston, South Carolina from May 19-21, 2017. Defendants invited the Libertad to participate as one of the featured ships in the festival, and Argentina agreed to provide the Libertad.

In preparation for the festival, Tall Ships American and Tall Ships CHS signed an “American Sail Training Association DBA Tall Ships Challenge Port Organizer Agreement” (the “Agreement”). The Agreement referred to Tall Ships American as “Tall Ships America” and Tall Ships CHS as “Port Organizer.” It provided, in part:

1.5 Without expense to Tall Ships America (except as specified herein) and using its own resources others may afford to it, Port Organizer agrees to organize and conduct the Port Event in the Host Port during the period of the Event Dates, the publicity for which may employ the Name. It shall be so organized and executed as to afford the optimum level of safe interaction between the citizenry of the Port, particularly its youth, with the trainees and crew of the participating vessels. Port Organizer will secure, provide for, or arrange for the availability of waterfront services and equipment, and will obtain the licenses, permits, and permissions form local officials necessary to conduct the Port Event lawfully.

ECF No. 64-2 at 6 (emphasis added). Appendix A to the Agreement further provided: “h. Tall Ships America will provide professional review for Port Organizer's public safety, security and incident management plan, and specify changes to same as may be necessary to ensure conformity with MENS and other public safety stakeholder requirements.” Id. at 18.

On May 21, 2017, plaintiffs Jerry Ellis (“Ellis”) and Keven Ellis (together, “plaintiffs”) purchased tickets for the tall ships festival and attended it with their family. Plaintiffs visited the Libertad and stayed aboard for approximately thirty minutes. According to the complaint, when Ellis was disembarking the Libertad, he was instructed to step up onto and walk across “a painted metal bitt^[2] secured to the vessel's deck” to reach the gangway. ECF No. 1, Compl. ¶ 16. Due to the low tide in North Charleston that day, the ship's gangway rested on a pier cap, causing the gangway to be several feet above the ship's deck. ECF No. 64 at 5 (citing ECF No. 64-1, Brown Dep. at 124:9-11). While stepping onto the bitt, Ellis slipped and fell, badly injuring his right leg.

Plaintiffs filed suit against the Tall Ships entities and Argentina on December 27, 2018, asserting claims for negligence and loss of consortium. Compl. On September 3, 2021, Argentina filed an unopposed motion to dismiss. ECF No. 49. The plaintiffs consented to the motion, and the court dismissed Argentina with prejudice on September 7, 2021. ECF No. 50.

On December 15, 2021, defendants filed a motion for summary judgment. ECF No. 58. Plaintiffs filed their response in opposition on January 21, 2022, ECF No. 64, and defendants replied on January 28, 2022, ECF No. 66. The court held a telephonic hearing on the motion on February 1, 2022. ECF No. 68. On February 22, 2022, plaintiffs, with leave of the court, filed a supplement addressing the applicability of certain Coast Guard standards to the Libertad. ECF No. 64. On February 28, 2022, defendants replied to the supplement. ECF No. 72. As such, the motion has been fully briefed and is now ripe for review.

II. STANDARD

Summary judgment shall be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. The court should view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor. Id. at 255.

III. DISCUSSION

Defendants move for summary judgment on each of plaintiffs' claims. Defendants first argue that under the maritime negligence laws that guide this court, plaintiffs have failed to establish a prima facie case of negligence. In the alternative, defendants argue that they did not owe a duty while plaintiffs were on the Libertad as a matter of state law. The court considers each argument in turn, ultimately finding that summary judgment is warranted in defendants' favor on either ground.

A. Maritime Negligence Law

First, defendants argue that as a matter of general maritime law, summary judgment is appropriate because any alleged defect or dangerous condition was open or obvious. As a preliminary matter, the court must determine what law is to be applied. As a general matter, the court agrees with defendants that plaintiffs' claims are within this court's admiralty jurisdiction and are governed by substantive admiralty law. 28 U.S.C. § 1333(1); E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986); Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981); Nicholes v. M/V Maya, 949 F.Supp. 391, 397 (D.S.C. 1996); see also Green v. Pope & Talbott, Inc., 328 F.Supp. 71, 77 (D. Md. 1971) (“[If] the place of injury is on a ship, there is maritime jurisdiction . . . . [I]f the injured person is on the dock or wharf, or other structure equivalent to land, there is no such jurisdiction.” (citing G. Robinson, Handbook of Admiralty Law in the United States § 10 (1939))). Negligence is an actionable wrong under general maritime law. Leathers v. Blessing, 105 U.S. 626, 630 (1882). In admiralty cases, then, a plaintiff's cause of action for negligence is to be determined under the principles of maritime negligence law rather than common law negligence. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 411 (1953).

“Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules.” E. River, 476 U.S. at 864. The elements of a maritime negligence cause of action are: (1) the existence of a duty required by law that obligates a person to conform to a certain standard of conduct in order to protect another against unreasonable risks of harm; (2) a breach of the said duty by engaging in conduct that falls below the applicable standard; (3) a causal connection between the improper conduct and the resulting injury; and (4) an actual loss or injury to the plaintiff due to the improper conduct. Schumacher v. Cooper, 850 F.Supp. 438, 447 (D.S.C. 1994). The plaintiff has the burden of proof for each of these elements in a maritime negligence cause of action. Id.

Under the first element, “a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.” Bubla v. Bradshaw, 795 F.2d 349, 353 (4th Cir. 1986) (citing Kermarec v. Compagnie Generale 358 U.S. 625, 630 (1959)) (emphasis added). “Courts have also recognized that a slip owner under admiralty jurisdiction owes a duty of ordinary care toward those who use the pier.” Id. (citing Casaceli v. Martech Int'l, Inc., 774 F.2d 1322, 1328, 1331 (5th Cir. 1985)). The duty of ordinary care includes “a duty to warn of harm that is reasonably foreseeable under the circumstances.” Id. (citations omitted). Based on their briefs, defendants appear to concede that the court should analyze whether they were liable as the equivalent of shipowners. See ECF No. 58-1 at 11 (“Simple logic dictates that the Tall Ships festival organizers cannot have a superior duty than the Libertad to those members of the public onboard the Libertad; therefore, we reference the general negligence requirements for the Libertad (i.e., maritime negligence) as instructive for Plaintiffs' claims against Tall Ships.”); ECF No. 72 at 4 (“Although Mr. Ellis'[s] fall occurred entirely aboard the Libertad, the potential liability attributable to Tall Ships is analyzed as if Tall Ships were the actual possessor of the ship upon which Plaintiff fell.”). Despite this apparent concession, the court fails to comprehend why the Tall Ships entities owed a duty as...