Reecer v. McKinnon Bridge Co.
| Decision Date | 31 July 1990 |
| Docket Number | No. 3-89-0205.,3-89-0205. |
| Citation | 745 F. Supp. 485 |
| Parties | Joe Frank REECER, and his wife, Mable Reecer v. McKINNON BRIDGE COMPANY and Ingersoll-Rand Rock Drill Division. |
| Court | U.S. District Court — Middle District of Tennessee |
COPYRIGHT MATERIAL OMITTED
Arnold Goldin, Memphis, Tenn., for plaintiffs.
G. Ray Bratton, Memphis, Tenn., Jack B. Draper, Arnett Draper & Hagood, Knoxville, Tenn., and Yerrid, Knopik & Valenzuela, Tampa, Fla., for defendants.
Pending before the Court are the plaintiff's and the defendants' motions for summary judgment.
The plaintiff, Joe Frank Reecer, was hired by the defendant McKinnon Bridge Company, Inc. on July 8, 1988 as a construction worker. The plaintiff continued to work for the defendant until the plaintiff was injured on October 5, 1988. The defendant was involved in a road construction project which included the construction of a bridge across the Cumberland River at Carthage, Tennessee. The plaintiff served as a carpenter, general laborer and drill operator while assisting with the construction of the land portion of the bridge until work was completed on the first bridge pier. The bridge was designed with three piers supporting its deck. After the completion of the first pier, the defendant began construction of the other two piers which were built in the river from barges.
As soon as work began on the second pier, sometime in early August, the plaintiff was reassigned from his land duties to operating a drill on a portable drill barge in the river. The plaintiff operated the drill on the portable drill barge until the date the plaintiff was injured on October 5, 19881.
The defendant maintained approximately four barges, including the portable drill barge, and a tugboat at the construction site to assist in the construction of piers two and three. The portable drill barge on which the plaintiff worked was composed of several sections which could be joined to create barges of different sizes. The sections could be transported to the job site by various means, including by truck and by barge. In the present case, the dismantled sections were transported to Carthage, Tennessee, assembled and then loaded onto a crane barge which was pushed out into the river by towboat. The portable drill barge left the construction site in May of 1989 in tow with another barge.
During the time in which the plaintiff worked on the portable drill barge, the barge remained moored and tied to a larger crane barge. The crane barge was secured to the river bed by poles called spuds. The portable drill barge was moved up the river only twice during the drilling and that was so that the defendant could dynamite the drill holes. The portable drill barge was moved slightly while moored through the use of winches and lines. The portable drill barge was moved in this way infrequently.
During the time in which the plaintiff worked for the defendant, the portable drill barge was not used to move materials, or equipment. However, the defendant had used the portable drill barge on previous job sites to transport materials from the bank to the middle of the river. The defendant had also used the portable drill barge in the past to support and transport a crane.
No structure or equipment was permanently affixed to the portable drill barge or its deck. The portable drill barge did not have kitchen or sleeping facilities.
The portable drill barge was designed with a rake piece that is attached to form a raked bow, or front. The portable drill barge was also outfitted with kevels, that are used to tie the barge to other barges in tow, and temporary navigational lights.
The plaintiff worked approximately ten to fourteen hours a day on the portable drill barge. He ate lunch on the portable drill barge.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court explained the District Court's function in ruling upon a motion for summary judgment:
It is likewise true that " Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). As the Sixth Circuit Court of Appeals stated:
Summary judgment may only be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. All facts and inferences to be drawn therefrom must be read in a light most favorable to the party opposing the motion. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.) cert. denied, 444 U.S. 986 100 S.Ct. 495, 62 L.Ed.2d 415 (1979).
Duchon v. Cajon Co., 791 F.2d 43 (6th Cir.1986). Under these holdings, three questions are to be considered upon a motion for summary judgment: (1) does the plaintiff present sufficient facts to establish all the elements of his claim; (2) are those facts sufficient to support a jury verdict or judgment; and (3) are there any material factual issues with respect to those facts.
The plaintiff is attempting to recover damages for his injuries from the defendants under the Jones Act, 46 U.S.C.App. § 688, which allows seamen to invoke federal admiralty jurisdiction against their employers for adjudication of their injury claims. The Jones Act provides in pertinent part:
Any seaman who shall suffer personal injury in the course of his employment, may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply ...
The sole issue which must be resolved in ruling on the parties' motions for partial summary judgment on the plaintiff's Jones Act claim is whether the plaintiff is a "seaman."
The Jones Act does not define what type of worker is to be considered a "seaman," thus, the courts have had to determine who has standing to bring an action under the Act. In 1953, the Sixth Circuit Court of Appeals, in Wilkes v. Mississippi River, Sand & Gravel Co., 202 F.2d 383 (6th Cir.1953), enunciated a three-pronged test for determining seaman status within the meaning of the Jones Act. The test is as follows:
202 F.2d at 388. See also, Petersen v. Chesapeake & Ohio Railroad Co., 784 F.2d 732, 737 (6th Cir.1986); Searcy v. E.T. Slider, Inc., 679 F.2d 614, 616 (6th Cir. 1982); and Luckett v. Continental Engineering Co., 649 F.2d 441, 442 (6th Cir. 1981).
The Sixth Circuit has indicated that in determining whether these requirements have been satisfied that the three elements necessary to constitute a seaman should be liberally construed. Searcy v. E.T. Slider, Inc., 679 F.2d 614, 617 (6th Cir.1982) ().
The Supreme Court, in Senko v. La Crosse Dredging Corp., 352 U.S. 370, 374, 77 S.Ct. 415, 417, 1 L.Ed.2d 404, rehearing denied 353 U.S. 931, 77 S.Ct. 716, 1 L.Ed.2d 724 (1957), its last decision addressing the question of seaman status, relegated the question of seamen status to the jury (or finder of fact) in most cases:
We believe ... that our decision in ... South Chicago Coal & Dock Co. v. Bassett 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940) ... has not been fully understood. Our holding there that the determination of whether an injured person was a `member of a crew' is to be left to the finder of fact meant that juries have the same discretion they have in finding negligence or any other fact. The essence of this discretion is that a jury's decision is final if it has a reasonable basis, whether or not the appellate court agrees with the jury's estimate.
Similarly, the Fifth Circuit Court of Appeals has consistently held that the question of...
To continue reading
Request your trial
-
Bonnette v. Shell Offshore, Inc.
...as in Watson on behalf of Watson v. Massman Construction Co., 850 F.2d 219 (5th Cir. 1988). It was followed in Reecer v. McKinnon Bridge Co., 745 F.Supp. 485 (M.D.Tenn. 1990), and it was adopted in the First Circuit by Shea v. Rev-Lyn Contracting Co., 868 F.2d 515, 518 (1st Plaintiffs cited......
-
Elia v. Mergentime Corp.
... ... construction of a new Route 129 highway bridge over a ... tributary of the Croton River, Hunter's Brook, which is ... now part of the ... invoking jurisdiction. See Reecer v. McKinnon Bridge ... Co., 745 F.Supp. 485, 496 (M.D. Tenn. 1990). Contrary to ... ...