Reed v. ULS Corp., 98-2142

• Citation: 178 F.3d 988
• Decision Date: 28 May 1999
• Docket Number: No. 98-2142,98-2142
• Parties: , John C. REED, Appellant, v. ULS CORPORATION, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

178 F.3d 988, John C. REED, Appellant, v. ULS CORPORATION, et al., Appellees.

No. 98-2142.

United States Court of Appeals,

Eighth Circuit.

Submitted March 12, 1999.

Decided May 28, 1999.

Larry J. Peterson, St. Paul, Minnesota, argued (Toby E. Marcovich, Superior, Wisconsin, on the brief), for appellant.

Robert T. Coniam, Cleveland, Ohio, argued (William D. Carle III, Cleveland, Ohio, Thomas A. Clure, Duluth, Minnesota, on the brief) , for appellee.

Before BEAM and HEANEY, Circuit Judges, and FENNER, ¹ District Judge.

FENNER, District Judge.

Appellant, John Reed, appeals the District Court's grant of summary judgment on his claim of negligence against appellee, ULS Corporation (ULS). Reed is a longshore worker who was employed by American Grain Trimmers. In November of 1995, American Grain Trimmers had a contract to load grain onto a vessel owned by ULS. As Reed was walking down the vessel's gangway, a step on the gangway gave way causing Reed to fall and injure himself. ²

On appeal, Reed argues that there are genuine issues of material fact that preclude summary judgment and that considering the facts in the light most favorable to him, supports his theory that ULS was negligent. Specifically, Reed argues that ULS failed to conduct a reasonable inspection which would have revealed the defect in the step that caused his injury. ULS argues that the record is insufficient to establish that it was negligent.

STANDARD FOR SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56, Summary Judgment is mandated where depositions, discovery responses and affidavits show that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v.. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In ruling on a motion for summary judgment, it is the court's obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Inland Oil and Transport Co. v. United States, 600 F.2d 725, 727-28 (8th Cir.1979), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979).

FACTS

The record reveals that the vessel in question was equipped with a gangway on each side of the vessel. The gangways were stowed vertically off the side of the vessel's deck when not in use. On the day in question the vessel docked at approximately 4:00 a.m. and the gangway in question was swung into place to allow passage to and from the dock. When the gangway was put in place, it was inspected visually from the vessel and walked on to determine if there was anything unusual. No problems were observed. At 8:00 a.m., on the day in question, appellant, Mr. Reed, and five other longshoremen boarded the vessel via the gangway; they encountered no problems with the gangway. Loading of the vessel began at approximately 9:00 a.m., and the gangway continued to be used by vessel crew members and others. At approximately 12:50 p.m., Mr. Reed fell while using the gangway when the eighth step from the bottom failed. A subsequent inspection revealed that the two pins which hold the step in a horizontal position when the gangway is in use were missing. Only if both pins are missing will a step fail by moving from a horizontal to a vertical position when the gangway is extended to the dock for use.

The gangway is made of heavy aluminum with 29 steps and a top and bottom platform. A threaded hole and axle on each end of the step bolts every step along its centerline to the gangway. This allows each step to turn along its centerline. Each step also has unthreaded holes, or ears, at the underside of both back corners. Each ear is pinned to an angle iron that runs the length of the gangway under each of the steps. The pins, which are slip fit, are held in place by keeper wires through holes drilled in the ends of the pins. The pins are 1 1/2 inches long and 5/6 inch wide. The pins are made out of aluminum, and the bushings that fit on the pins are one inch long. The upper end of each angle iron is hinged to the gangway's top platform, creating a mechanical linkage that changes the angle of the steps to keep them level as the angle of the gangway changes during loading.

LEGAL ANALYSIS

The Longshore and Harbor Workers' Compensation Act as amended in 1972, is controlling in this cause. Pursuant to 33 U.S.C.A. § 905(b), the Act provides as follows:

In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person ... may bring an action against such vessel as a third party in accordance with the provisions of § 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly....

The liability of the vessel under the subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.

"Unseaworthiness," a form of strict liability, had until 1972 also been a longshoreman's remedy. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).

Although Section 905(b) abolished a longshoreman's right to recover for unseaworthiness, it did not specify the acts or omissions of the vessel that would constitute negligence. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 165, 101 S.Ct. 1614, 1621, 68 L.Ed.2d 1 (1981). The contours of a vessel's duty to longshoremen were left to be resolved through the application of accepted principles of tort law and the ordinary process of litigation. Id. at 165-166, 101 S.Ct. at 1620-1622.

In Scindia, the Supreme Court outlined the three general duties vessel owners owe to longshoremen. The first, which courts have come to call the "turnover duty," relates to the condition of the vessel upon the commencement of stevedoring operations. ³ Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98, 114 S.Ct. 2057, 2063, 129 L.Ed.2d 78 (1994), (citing Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 167, 101 S.Ct. 1614, 1622, 68 L.Ed.2d 1 (1981)). The second duty, applicable once stevedoring operations have begun, provides that a vessel owner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the "active control of the vessel." Id. The third duty, called the "duty to intervene," concerns the vessel's obligations with regard to cargo operations in areas under the principal control of the independent stevedore. Id.

The duty to intervene is not implicated here and under both the turnover and active control duty the vessel owes the stevedore the duty to exercise due care under the circumstances. Scindia, 451 U.S. at 166, 101 S.Ct. at 1622. The duty to exercise due care extends at least to exercising ordinary care under the circumstances in order that the vessel and its equipment are in such condition that an expert and experienced stevedore will be able, by the exercise of reasonable care, to carry on cargo operations with reasonable safety to persons and property. Id. at 166-67, 101 S.Ct. at 1622. The duty to exercise ordinary care also requires that a warning be given to the stevedore of any hazards on the vessel or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work. A vessel owner has a duty, with respect to the condition of the vessel's gear, equipment, tools, and work space, to be used in the stevedoring operations; and if he fails at least to warn the stevedore of hidden danger which would have been known to him in the exercise of reasonable care, he has breached his duty and is liable if such breach causes injury to a longshoreman. Id. A vessel may also be liable if it actively involves itself in the cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation. Id.

Thus, in accordance with the holding of Scindia, plaint...