Ozzello v. Peterson Builders, Inc.
| Decision Date | 24 August 1990 |
| Docket Number | No. 89-C-85.,89-C-85. |
| Citation | 743 F. Supp. 1302 |
| Parties | William OZZELLO and Marlene Ozzello, Plaintiffs, v. PETERSON BUILDERS, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Michael Tarnoff, Milwaukee, Wis., for plaintiffs.
Dennis Minichello, Chicago, Ill., for defendant.
On June 18, 1987, William Ozzello fell on a hose aboard the MCM-01, a ship under construction by defendant Peterson Builders, Inc. (PBI). He injured his ankle and claims that the cause was PBI's negligence in failing to maintain a safe workplace. Therefore, he commenced this lawsuit in which he seeks $500,000.00 in compensatory damages. William's wife, Marlene, is seeking $60,000.00 in damages for loss of companionship. The plaintiffs are attempting to sue PBI as the vessel owner pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-50, and have invoked this court's admiralty jurisdiction over the subject matter of their claims. See 28 U.S.C. § 1333; Federal Rule of Civil Procedure 9(h). After jurisdiction was challenged, the plaintiffs amended their complaint to allege that this court has an alternate basis for jurisdiction — diversity — because the plaintiffs are both citizens of Michigan; defendant PBI is a Wisconsin corporation with its principal place of business in Wisconsin; and the amount in controversy as to each plaintiff exceeds $50,000.00, exclusive of interest and costs. See 28 U.S.C. § 1332.
The defendant has answered and has denied liability. In addition, the defendant has continued to maintain that this court does not have admiralty, maritime, or federal question jurisdiction over the claims and that the plaintiffs are not entitled to relief under the LHWCA.
After the defendant's motion for summary judgment was denied, a trial to the court commenced on May 7, 1990. Following three days of testimony, the trial concluded with closing arguments on May 24, 1990. Having reviewed the testimony, depositions and exhibits received at trial, the court now sets forth its Findings of Fact separately from its Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.
Prior to trial the parties submitted a statement of uncontested facts. See Amended Final Pretrial Report at 1-3. Where material, these facts have been adopted by the court and incorporated into the court's own findings of facts which were established by a preponderance of the evidence at trial.1
1. Plaintiff William Ozzello is a citizen of Iron Mountain, Michigan. See Amended Complaint at ¶¶ 1 & 4.
2. Plaintiff Marlene Ozzello is a citizen of Iron Mountain, Michigan. She is the wife of plaintiff William Ozzello. See Amended Complaint at ¶¶ 4 & 8.
3. Defendant Peterson Builders, Inc. (PBI) is a Wisconsin corporation having its principal place of business in Sturgeon Bay, Wisconsin. PBI is engaged in the business of ship construction. See Amended Final Pretrial Report at (a), ¶ 4; Amended Complaint at ¶ 2.
4. The amount in controversy as to each plaintiff exceeds $50,000.00, exclusive of interest and costs. See Amended Complaint at ¶¶ 7 & 9.
5. At the time of William Ozzello's injury, Peterson Builders, Inc. was the owner of the MCM-01, a partially constructed minesweeper. See Amended Final Pretrial Report at (a), ¶ 6; Memorandum in Response to Order of January 26, 1990 (filed by PBI on February 21, 1990).
6. On June 18, 1987, William Ozzello was injured while working in the course of his employment aboard the MCM-01. See Testimony of William Ozzello (May 7, 1990).
7. At the time of William Ozzello's injury, the MCM-01 was afloat on the navigable waters of the United States on Lake Michigan secured to the shipbuilder's dock near Sturgeon Bay, Wisconsin. See Amended Complaint at ¶ 5; Defendant's Answer to Amended Complaint at ¶ 5.
8. Prior to and at the time of his injury, William Ozzello was engaged in maritime employment as a shipbuilder. His duties included inspecting and testing winches which had been fabricated and installed aboard ships by his employer, the A.C. Hoyle Company. See Testimony of William Ozzello (May 7, 1990); Trial Exhibit 26; Affidavit of William Ozzello at ¶ 3. The fabrication, installation, testing, and inspection of this equipment was called for by the construction contract under which PBI was building the MCM-01. See Trial Exhibit 21.
9. The general conduct from which William Ozzello's injury arose was the performance of ship construction work aboard the MCM-01. See Testimony of William Ozzello (May 7, 1990); Trial Exhibit 26.
10. William Ozzello's injury did not occur while he or any PBI employees aboard the MCM-01 were performing the work of seamen, or in the course of navigation, or in the course of any conduct affecting maritime commerce.
11. At all times relevant to this action, defendant Peterson Builders, Inc. was an employer maintaining a place of shipbuilding employment. See Amended Final Pretrial Report at (a), ¶ 4; Amended Complaint at ¶ 2.
12. At all times relevant to this action, defendant Peterson Builders, Inc. was the owner of the MCM-01, a ship under construction which was a place of shipbuilding employment. See Amended Final Pretrial Report at (a), ¶ 6.
13. At all times relevant to this action, defendant Peterson Builders, Inc. was the general contractor under an agreement to construct the minesweeper MCM-01 for the United States Navy. See Trial Exhibit 21.
14. The A.C. Hoyle Company was a subcontractor working under Peterson Builders, Inc.'s agreement to build the MCM-01. See Amended Final Pretrial Order at (a), ¶¶ 3, 4 & 5; Trial Exhibit 21.
15. William Ozzello was and is an employee of the A.C. Hoyle Company. See Testimony of William Ozzello (May 7, 1990).
16. Around 7:00 A.M. on June 18, 1987, William Ozzello, in the course of his employment with the A.C. Hoyle Company, boarded the MCM-01 to test equipment. See Testimony of William Ozzello (May 7, 1990); Exhibit 26.
17. On June 18, 1987, William Ozzello was a frequenter aboard the MCM-01.
18. William Ozzello had been working aboard the MCM-01 for two months prior to June 18, and was familiar with the vessel. See Amended Final Pretrial Report at (a), ¶ 6.
19. William Ozzello climbed up onto a piece of equipment to check for a leak. As he stepped up, he noticed no hose beneath his feet. See Testimony of William Ozzello (May 7, 1990).
20. After approximately twenty minutes, William Ozzello turned to climb off the equipment to the deck which was approximately four feet below. See Testimony of William Ozzello (May 7, 1990).
21. Facing frontward, but without looking down, William Ozzello stepped down. His left foot landed on the nozzle of a hose. See Testimony of William Ozzello (May 7, 1990).
22. As he stepped on the nozzle, William Ozzello fell and injured his left ankle. See Testimony of William Ozzello (May 7, 1990).
23. The hose had been left on the deck near William Ozzello's work area by unidentified employees of PBI. See Testimony of William Ozzello (May 7, 1990).
24. At all times relevant to this action, the hose and the area in which it was placed were under the supervision, custody, and control of defendant Peterson Builders, Inc. See Testimony of Calvin Matzke (May 2, 1990).
25. Defendant Peterson Builders, Inc. had constructive notice that its employees had left the hose and its nozzle in a place where it was foreseeable that it could present a hazard to frequenters working aboard the MCM-01.
26. Pursuant to PBI safety practices, its employees were to keep gear stowed when not in use and areas such as walk-ways were to be kept cleared of equipment. See Testimony of Calvin Matzke (May 8, 1990); Trial Exhibit 27.
27. The area in which William Ozzello was working was marked with yellow tape indicating a restricted work area. See Testimony of William Ozzello (May 7, 1990).
28. PBI, through its employees, failed to exercise due care for the safety of William Ozzello when PBI employees left a hose fitted with a nozzle in a place where it could present a hazard to a person climbing off equipment in a restricted work area on the vessel.
29. The conduct of PBI, as described in paragraph 28, above, was a substantial cause of the injury sustained by William Ozzello on June 18, 1987.
30. William Ozzello could have seen the hose had he looked down before descending from the equipment. See Testimony of John K. Barto (May 8, 1990).
31. William Ozzello failed to exercise due care for his own safety by failing to look down to determine whether the deck was clear as he began his descent from the equipment above.
32. The conduct of William Ozzello, as described in paragraph 31, above, was a substantial cause of the injury he sustained on June 18, 1987.
33. Assuming the total negligence which caused the injury to William Ozzello on June 18, 1987, to be one hundred percent (100%), the court attributes forty percent (40%) of the total negligence to plaintiff William Ozzello and sixty percent (60%) of the total negligence to defendant Peterson Builders, Inc.
34. After being injured, William Ozzello was aided by a PBI nurse, then treated at a local hospital. See Testimony of William Ozzello (May 7 & 9, 1990); Deposition Testimony of Marilou Jane Bowen (read at trial on May 8, 1990); Amended Final Pretrial Report at (a), ¶ 9.
35. William Ozzello continued medical treatment of his ankle with Donald Jacobs, M.D. See Testimony of William Ozzello (May 7 & 9, 1990); Video Deposition Testimony of Donald Jacobs, M.D. (viewed at trial on May 7, 1990); Amended Final Pretrial Report at (a), ¶ 9.
36. Dr. Jacobs referred William Ozzello to the Mayo Clinic in Rochester, Minnesota, where Ozzello was examined five times. See Amended Final Pretrial Report at (a), ¶ 9; Trial Exhibit 31.
37. On April 27, 1988, an examining physician at the Mayo Clinic stated that it was his "...
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