George v. Hillman Transportation Company

• Decision Date: 21 March 1972
• Docket Number: 70-394.,Civ. A. No. 69-809,69-1225
• Citation: 340 F. Supp. 296
• Parties: Rosella GEORGE, Plaintiff, v. HILLMAN TRANSPORTATION COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

340 F. Supp. 296

Rosella GEORGE, Plaintiff, v. HILLMAN TRANSPORTATION COMPANY, Defendant.

Civ. A. Nos. 69-809, 69-1225, 70-394.

United States District Court, W. D. Pennsylvania.

March 21, 1972.

COPYRIGHT MATERIAL OMITTED

Hymen Schlesinger, Pittsburgh, Pa., for plaintiff.

Clyde W. Armstrong, and William M. Wycoff, Pittsburgh, Pa., for defendant.

OPINION

WEBER, District Judge.

These three consolidated cases arise out of two separate incidents in which plaintiff claims she was injured. Defendant has filed motions for Summary Judgment in each case on the grounds that the negligence claims asserted under the Jones Act are barred by the three year statute of limitations upon such claims, that the seaworthiness claims under the general maritime law are barred by laches and that the claim for maintenance and cure must fail for want of notice and demand for maintenance and cure by plaintiff.

These motions for summary judgment were filed at the end of all pretrial preparation, and the grounds therefor were thoroughly reviewed at the pretrial conference as well as the full hearing on the motions. Plaintiff's counsel was warned before the hearing that the brief which he filed was not a sufficient response to the evidentiary matters submitted by movant and he was allowed additional time. After the hearing he was allowed further time to supply evidentiary materials.

We believe that Fed.R.Civ.P. 56(e) as amended places a real burden on a responding party that cannot be met by mere allegations or briefs, and the plaintiff has been afforded ample opportunity to meet this burden:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." F.R. of Civ.P. 56(e).

The chronology of the various claims is as follows:

Civil Action No. 69-809, filed July 7, 1969, asserts a claim for negligence under the Jones Act, and unseaworthiness under the general maritime law for an injury allegedly received in October, November or December 1962, whereby as a result of an attack by a fellow member of the crew, her back was injured.

Civil Action No. 69-1225 asserts a claim for maintenance and cure arising out of the above incident and consequential damages.

Civil Action No. 70-394, filed April 3, 1970, asserts a claim for negligence under the Jones Act, and unseaworthiness under the general maritime law, and for maintenance and cure for injuries allegedly received in 1963 when oven doors in the galley stove of the vessels fell open and struck her legs causing various circulatory troubles and consequential damages for failure to pay maintenance and cure.

I. The Jones Act Claims for Negligence.

(Civil Action No. 69-809 and Civil Action No. 70-394).

With respect to allegations under the Jones Act for negligence the action must be brought within the three year statute of limitations found in 45 U.S.C. § 56. None of the Jones Act claims were brought within this period.

The three year statute of limitations under Jones Act actions "is one of substantive right, setting a limit to the existence of the obligation which the Act creates." Engel v. Davenport, 271 U.S. 33, 38, 46 S.Ct. 410, 412, 70 L.Ed. 813 1926.

However, the court may apply equitable principles to estop a defendant to assert the statute of limitations where his own conduct or representations have caused plaintiff to delay filing suit. Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L. Ed.2d 770 1959.

In response to the motion and evidentiary material filed by defendant in support of the motion, plaintiff produces the following evidentiary material:

(a) Her affidavit that she was fearful of losing any employment or would be blacklisted for employment by other companies if she filed suit;

(b) Deposition testimony of plaintiff that the failure of any physicians consulted to support her claim that the symptoms which she suffered were from the back injury alleged until 1968;

(c) Deposition testimony of plaintiff that she was unaware of her rights to sue for injuries received aboard the vessel;

(d) Deposition testimony that in 1968 she consulted an attorney who told her that she had no case.

In a motion for summary judgment the burden is on the plaintiff to present facts which, if true, would require a court as a matter of law to estop the defendant from asserting the statute of limitations. Longo v. P. & L. E. R. Co., 355 F.2d 443 3rd Cir., 1966. This is a question of law to be determined by the court. Burke v. Gateway Clipper, Inc., 441 F.2d 946 3rd Cir., 1971.

The plaintiff's evidentiary material asserts the grounds of (a) ignorance of the nature of the injuries; (b) ignorance of plaintiff's right to sue; and (c) fear of loss of employment. Of these grounds, only the fear of loss of employment can be in any way attributable to the defendant. Yet plaintiff has produced no evidence to show that such fear was induced by any action of the defendant. In fact, the evidentiary effect of this alleged fear is lost when we consider the evidence that defendant ceased its maritime business on March 31, 1965 and discharged its employees, including plaintiff.

We find nothing in the evidentiary material produced before us to warrant the invocation of the equitable doctrine of estoppel against defendant's assertion of the three year statute of limitations.

II. The Unseaworthiness Claims.

(Civil Action No. 69-809 and Civil Action No. 70-394).

As to the unseaworthiness claim for both accidents the three year statute does not apply, but the equitable defense of laches applies. This is a matter to be determined by the court. Gardner v. Panama Railroad Co., 342 U. S. 29, 30, 72 S.Ct. 12, 96 L.Ed. 31 1951; Burnett v. New York Central R. R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 1965. The burden is upon the plaintiff to come forward and prove that his delay was excusable and that it did not unduly prejudice the defendant. Mroz v. Dravo Corp., 429 F.2d 1156 3rd Cir., 1970; Lipfird v. Mississippi Valley Barge Line, 310 F.2d 639 3rd Cir., 1962. In these cases more than six years in the one case and seven in the other case had passed before suit was instituted. Plaintiff does not allege that defendant had notice or knowledge of her claim, except that she had told some supervisory employees of back pains and leg pains that prevented her from working for periods in 1964. On her return to work after a thirteen month layoff in October 1964 she had a re-employment physical examination and did not mention these injuries to the physician examining for the company. At no time after leaving the employ of the defendant on March 31, 1965 did she assert any claim against the company until these suits were filed.

The mere passage of time creates a presumption of prejudice to the defendant. Morrow v. Point Towing Co., 187 F.Supp. 168 W.D.Pa., 1960. The plaintiff has produced no evidence to show that defendant is not prejudiced, except to make an unsworn assertion that the only eyewitness to the 1962 incident, the seaman who attacked her, is presently available. On the other hand the defendant reinforces the presumption of prejudice by showing that the company suspended all towing operations and terminated the employment of all operating personnel, including plaintiff, on March 31, 1965. The affidavit of defendant's president further avers that it has no records in its files of any accident or injuries suffered by plaintiff.

Thus, plaintiff has not carried her burden of proof on the question of prejudice. She must also carry the burden on excusable delay.

Plaintiff alleges that she was afraid to sue for fear of loss of her employment. While this type of allegation has been held insufficient to prove excusable delay, Crumrine v. Jones & Laughlin Steel Corp., 104 F.Supp. 92 W.D.Pa., 1951, the evidence here shows that she laid off from work for a period of thirteen months during the three year period following both accidents and that she was terminated from employment in March 1965 and brought no claim for almost four years thereafter.

Plaintiff alleges that she was unaware of the nature of her injuries and their relationship to the complaints from which she suffered until late 1968 when she learned of them through employment physical examinations. Yet her own deposition, and the documentary evidence from records of the United States Public Health Service in 1964 show that she reported to an examining physician on May 6, 1964 that she hurt her back a year or two before when hyperextended over a sink, but still gets occasional back pain.

Her principal complaint given to the United States Public Health Service in 1964 was that her legs had been bothering her for the last six months, that she felt a burning sensation and numbness. The medical impression was "circulatory problem" and she was given medication. A reaction to the medication caused a change in prescription, and on a visit of June 16, 1964 her legs were much improved, very few symptoms were present, leg ache now occurs only with a lot of exercise, i. e. running up and down steps a great deal.

While plaintiff testified that she was unaware of her rights this testimony is contradicted by her own testimony that she was afraid to bring suit because of fear of loss of her job.

We do not consider the testimony of plaintiff that an attorney told her that she had no case to be of any probative value in this matter because the event occurred in 1968 or 1969, six or seven years after the accidents alleged. In any event, faulty judgment of counsel is no defense against the charge of laches. Landell v. Northern Pacific Rwy Co., 122 F.Supp. 253, affd. 96 U.S.App. D.C. 24, 253 F.2d 316 1955.

Plaintiff's counsel argues that neither laches nor the statutory limitation of...