Layman v. Lahaina Divers, Inc.

• Citation: 23 F.Supp.3d 1170
• Decision Date: 28 May 2014
• Docket Number: Civil No. 12–00602 ACK–BMK.
• Parties: Christopher LAYMAN, Plaintiff, v. LAHAINA DIVERS, INC., and M/V Dauntless USCG Doc. No.: 1148204, her tackle, rigging and appurtenances en rem, Defendants.
• Court: U.S. District Court — District of Hawaii

23 F.Supp.3d 1170

Christopher LAYMAN, Plaintiff

v.LAHAINA DIVERS, INC., and M/V Dauntless USCG Doc. No.: 1148204, her tackle, rigging and appurtenances en rem, Defendants.

Civil No. 12–00602 ACK–BMK.

United States District Court, D. Hawai‘i.

Signed May 28, 2014.

Harold G. Hoppe, Honolulu, HI, John R. Hillsman, McGuinn Hillsman & Palefsky, San Francisco, CA, for Plaintiff.

Craig S. Jenni, Donna E. Albert & Associates, PA, Boca Raton, FL, John–Anderson L. Meyer, Kenneth S. Robbins, Alston Hunt Floyd & Ing, Honolulu, HI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

ALAN C. KAY, Senior District Judge.

For the following reasons, the Court hereby GRANTS IN PART AND DENIES IN PART Plaintiff's Motion for Partial Summary Judgment.

FACTUAL BACKGROUND¹

This matter arises under admiralty law. Plaintiff Christopher Layman alleges that he was injured while working as a PADI certified² SCUBA diver for Defendant Lahaina Divers, Inc. (“LDI”). LDI is a dive tour company and dive shop based in Lahaina Maui. (Pl.'s Concise Statement of Facts (“CSF”) ¶ 1.0.) LDI owns and operates two 46–foot sister ships, the Dauntless and the Dominion, that take passengers for hire on SCUBA dive tours to Lanai, Molokini, Molokai, and Maui. (Id. ¶ 1.1.) Both the Dauntless and the Dominion are required to have a Coast Guard certificate of inspection indicating that they are certified to carry passengers for hire. (Id. ¶ 1.2, Ex. 1 (“Howeth Depo.”) at 46.)

Plaintiff has been working “on and off for LDI since 1993” as a skipper, deck hand, and diver; however, this lawsuit arises out of the work he performed between December 29, 2010 and February 29, 2012. (Mot. at 5; Howeth Depo. at 17–18.) For purposes of this lawsuit, the parties have stipulated that Plaintiff was employed as a seaman within the meaning of the Jones Act at the time of his injuries. (Howeth Depo. at 43; Def.'s Concise Statement of Facts (“CSF”) at 2.) During the period between December 29, 2010 and February 29, 2012, Plaintiff divided his time between providing SCUBA instruction, working as a dive master and dive tour leader, and conducting underwater vessel inspections, maintenance, and repair. (Mot. at 5; Pl.'s CSF ¶¶ 1.4–1.6; Def.'s CSF at 2.) Plaintiff spent approximately “less than 25 percent” of his overall dive time during that period working as a SCUBA instructor, and approximately “75 percent or more” of his overall dive time working as a dive master or dive tour leader. (Pl.'s CSF ¶¶ 1.4–1.5; Howeth Depo. at 37; Def.'s CSF at 2.) His work as a dive master or dive tour leader involved “taking [g]roups of previously certified divers on underwater tours at the dive sites visited by LDI's vessels.” (Pl.'s CSF, Layman Decl. (¶ 4.))

Plaintiff suffered three separate injuries while working as a seaman aboard LDI's vessels. On December 29, 2010, Plaintiff was injured in Lahaina Harbor when he fell into an open hatch aboard the Dauntless. (Pl.'s CSF (¶ 4.1); Def.'s CSF at 2.) On October 26, 2011, Plaintiff experienced severe abdominal pain following a series of SCUBA dives he made with groups of passengers from the Dauntless off the coast of Molokini. (Pl.'s CSF (¶ 4.2); Def.'s CSF at 2.) Following the October 26, 2011 incident, Plaintiff was diagnosed with “an occult ventral or periumbilical hernia or other soft tissue vascular posttraumatic anomaly which predisposed [Plaintiff] to transient venous bubble trapping” when he did repeated SCUBA dives. (Pl.'s CSF, Ex. 2 (“Macris Depo.”) at 60–61.) Plaintiff's doctor, Dr. George Macris, advised him not to dive until the source of his abdominal pain was “better understood.” (Id. at 65.) Plaintiff underwent an umbilical hernia repair on December 10, 2011. (Id. at 67.)

Greg Howeth, co-owner and Chief Executive Officer of LDI, states that, following this surgery, he instructed Plaintiff not to participate in any more LDI diving activities until further notice. (Def.'s CSF, Howeth Decl. (¶ 13.)) Nevertheless, Plaintiff states that he was cleared to return to diving on January 22, 2012.³ (Mot. at 7.) Plaintiff states that, on January 23, 2012, he completed a “test dive” after which Greg Howeth directed him to return to the company dive rotation. (Pl.'s CSF, Layman Decl. (¶ 8.)) Mr. Howeth disputes this claim and states that any subsequent dives Plaintiff made were “entirely of his own volition,” and “against the direction I gave to him.” (Def.'s CSF, Howeth Decl. (¶ 13.))

On February 29, 2012, Plaintiff again experienced severe abdominal pain following another series of SCUBA dives he made while serving as a dive master for tour groups diving from the Dominion at Molokini Island. (Pl.'s CSF (¶ 4.3); Def.'s CSF at 2.) Plaintiff again presented with a distended abdomen and acute abdominal pain, and Dr. Macris diagnosed a “symptomatic gas embolism ” caused by “some type of gas trapping either mechanical distension or distension of the venous circulation secondary to diving.” (Macris Depo. at 67–68.) Greg Howeth states that Plaintiff's dives on February 29, 2012 were against the directions given to him by Howeth. (Def.'s CSF (¶ 9), Howeth Decl. (¶ 13.))

PROCEDURAL BACKGROUND

On November 9, 2012, Plaintiff filed his Seaman's Complaint for Compensatory and Punitive Damages for Personal Injuries Under the Jones Act and the General Maritime Law. (Doc. No. 1.) On January 17, 2014, after the parties conducted some discovery, the magistrate judge granted Plaintiff permission to file an amended complaint. (Doc. No. 79.) On January 21, 2014, Plaintiff filed his First Amended Complaint. (Doc. No. 80 (“FAC”).) In the First Amended Complaint, Plaintiff brings the following claims: (1) Jones Act Negligence, (2) Unseaworthiness, (3) Maintenance, Found, and Cure, (4) and Vessel Owner Negligence under General Maritime Law. (FAC ¶¶ 5–23.)

On March 28, 2014, Plaintiff filed the instant Motion for Partial Summary Judgment, along with a concise statement of facts and a number of exhibits. (Doc. Nos. 88, 89.) LDI filed a memorandum in opposition, supported by a concise statement of facts and several exhibits, on April 21, 2014. (Doc. Nos. 106, 107.) Plaintiff filed his reply on April 25, 2014. (Doc. No. 114.) A hearing on the motion was held on May 12, 2014.

STANDARD

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir.1999).

“A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548 ); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir.2004). “When the moving party has carried its burden under Rule 56 [(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that a party cannot “rest upon the mere allegations or denials of his pleading” in opposing summary judgment).

“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material’ only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir.2008) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 ; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir.2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor” (citations omitted)).

DISCUSSION

The instant motion addresses only Plaintiff's Jones Act negligence claim, and concerns only the injuries that occurred on October 26, 2011 and February 29, 2012. (Mot. at 7, 9.) The Jones Act provides a cause of action for “[a]ny seaman who shall suffer personal injury in the course of his employment.” 46 U.S.C. § 30104. The parties have stipulated for purposes of this litigation that Plaintiff was employed as a seaman within the meaning of the Jones Act at the time he was injured. (Pl.'s CSF ¶ 3.0; Def.'s CSF at 2.)

With the instant motion, Plaintiff seeks to establish that LDI may be held liable for per se negligence for its failure to adhere to the Coast Guard regulations governing commercial diving operations. Specifically, Plaintiff seeks an order finding that Plaintiff was injured in the course of his employment as a seaman with LDI, that he was engaged in “commercial diving operations” at the time of those injuries, that his activities were covered by the Coast Guard Commercial Diving Operations regulations, that LDI violated those regulations, and that LDI is therefore subject to per se liability for Plaintiff's injuries pursuant to Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958), and the burden shifting set...