Romero v. Cajun Stabilizing Boats, Inc.
| Decision Date | 13 August 2007 |
| Docket Number | Civil Action No. 6:06cv0263. |
| Citation | 501 F.Supp.2d 816 |
| Parties | Ken ROMERO v. CAJUN STABILIZING BOATS INC., et al. |
| Court | U.S. District Court — Western District of Louisiana |
Thomas R. Edwards, Domengeaux Wright et al, Lafayette, LA, Jason A. Itkin, Stephen R. Foster, Arnold & Itkin, Houston, TX, for Ken Romero.
Mark R. Pharr, III, Galloway Johnson et al, Lafayette, LA, for Cajun Stabilizing Boats Inc.
MEMORANDUM RULING
Before the Court is defendant's Motion for Summary Judgment [Rec. Doc. 48]; plaintiff's Response [Rec. Doc. 53] and Supplemental Response [Rec. Doc. 61] in opposition thereto; and defendant's Reply [Rec. Doc.62]. For the reasons stated, defendant's Motion [Rec. Doc. 48] will be GRANTED.
Plaintiff, Ken Romero ("plaintiff" or "Romero"), was injured when he allegedly fell down a man-hole on or about June 6, 2005 as he descended into the rudder room of a jack-up service vessel, the M/V MR. COURT, owned by defendant, Cajun Stabilizing Boats, Inc. ("defendant"). (Plaintiff's Opposition, p. 1). At the time of the incident, plaintiff was employed by and working in the course and scope of his employment with Marine Industrial Fabricators ("MIF"). (Defendant's Motion, p. 3; Ex. 1: Deposition of Ken Romero, pp 6-8). Romero had been employed by MIF as a fitter/welder for a number of years, during the course of which he had frequently worked about lift-boats such as the MR. COURT, and had worked on the MR. COURT while it was dry-docked for a U.S. Coast Guard Inspection and general maintenance work in the Port of Iberia, Louisiana for several weeks prior to the incident. Id.; Ex. 1 at pp 6-8, 27.
On the day of the incident, Romero was working in the starboard rudder compartment, an area of the vessel he had worked in for several days prior. Id. This area is accessed by a man-hole cover located on the deck of the vessel. Id. As Romero began to climb down the angle iron supports located inside the rudder room, he slipped, causing him to twist his knee. Id. Defendant alleges, and plaintiff does not dispute, that Romero had accessed this rudder room using the same manhole several times in the days prior to this incident and was aware that the interior of this rudder room had been coated with a slippery anti-corrosive material:
Romero admits that, prior to his fall, his usual and customary method of descending into the rudder room included holding on to permanent, welded, iron safety rails as he would place one foot after the other, one step at a time, onto angle iron steps that themselves were welded onto the hull of the boat, fashioning an access ladder. Id at pages 48-50. He had used this method numerous times before to gain access to the rudder room aboard this and many other similar vessels. Despite his prior, more prudent prior practices, Mr. Romero alleges that his accident occurred when he slipped on one of the middle rungs or steps and that he could not break his fall because a temporary safety barricade which he then grabbed to brace himself slid and did not stop his fall Id at pages 74-75 ....
Mr. Romero had worked only on this vessel during the week preceding his fall and he had gone down the hole using the angle-irons at least 1-2 times on the day of the fall in near identical conditions and used even used a similar manhole to gain entry to the engine room which connected to the starboard rudder room. Id at page 46. Mr. Romero had gone down these same hatches several times in the weeks preceding the accident where the conditions were virtually identical. Id at pages 46-49.
On the occasion of his alleged fall and injuries, Romero took a completely different approach from the safe, usual and customary method of holding onto iron safety railings: Romero sat on the side of the manhole with his feet dangling and he alone made the decision to enter the manhole by starting down with one foot per rung (iron step) rather than by bringing both feet to each rung before moving to the next. For the very first time in his experience with this and other similar boats, he opted to grab hold of a portable steel safety barricade which had been placed temporarily around the hole to prevent accidental top-side falls in the hole, but he does not know why he chose to subsequently grab for the barricade rather than the using the permanent railings as support. See, Exhibit 1 at pages 48-51. He admits that he was satisfied that the barricade was sturdy enough and it would be able to brace him despite it not being permanently fixed to the vessel and despite, at less than 100 pounds, weighing significantly less than he did. Id.
Mr. Romero began his descent and had taken the first two to three steps when he felt his body shift and his foot slip off of one of the steps; he was only using one foot per step and thus could not balance himself with the other foot. Id. at page 63. He had negotiated the first two or three of the five to six steps and his chest was about level with the deck floor when he began to slip and then tried to grab hold of and secure himself with the portable (non-fixed) safety barricade and fell. Id. at pages 62-62, 66-68. The temporary barricade he chose to hold onto slid and moved along the deck whereupon he lost his grip and fell to the floor of the rudder room, a distance about equal to the last few steps.
Id. at pp. 3-5; citations are to Exhibit: 1, Deposition of Ken Romero.
Plaintiff does not dispute or otherwise address this statement of fact, but alleges (Plaintiff's Opposition, p. 2; Ex. A, Deposition of Ken Romero, pp. 16:1-2; p. 33:12-22).
On February 16, 2007, Romero commenced this litigation, alleging that he sustained severe and painful injuries to his knee, back, and other parts of his body as a result of the conditions on the vessel, which was caused by defendant's negligence and the vessel's unseaworthiness: "plaintiff's injuries occurred as a proximate result of the unsafe and unseaworthy condition of the vessel, its crews and appurtenances and/or equipment or, in whole or in part, as a proximate result of the initial acts and/or negligence or lack of attention on the part of Defendants, their agents, servants and/or employees acting in the course and scope of their employment and agency." (Complaint [Rec. Doc. 1], pg. 3).
Defendant moves for summary judgment alleging that Romero was a maritime employee and that his alleged injuries were not caused by negligence of the vessel, the M/V MR. COURT. As such, defendant avers that it is not liable to the plaintiff for his injuries under the Longshore & Harbor Workers' Compensation Act, 33 USCA § 905(b), and that, as a matter of law, plaintiff's suit should be dismissed. (Defendant's Motion, p. 1).
Plaintiff responds that the Court should deny defendant's Motion, because there are genuine issues of material fact exist regarding: (1) defendant's breach of its turnover duty to plaintiff; (2) defendant's active control over the vessel in issue; and (3) defendant's knowledge of two serious hazards aboard the vessel. (Plaintiff's Opposition, p. 1). Plaintiff, in its Supplemental Response, submits the report of Edward Ziegler, a purported registered Professional Engineer and Certified Safety Professional, which allegedly "prominently sets forth numerous facts and expert opinions bearing on Defendant's liability for the underlying incident in this case." (Plaintiff's Supplemental Response, pg. 1).
Defendant replies to plaintiffs Supplemental Response and the submitted expert report, that Ziegler's "observations do not apply to the service vessel WV MR. COURT," because Ziegler's report considers and purportedly applies the Occupational Safety and Health Administration's ("OSHA") regulations. Defendant alleges that OSHA regulations are preempted with respect to "inspected vessels" because the Coast Guard exercises broad statutory authority over maritime workers' occupational health and safety, through 46 U.S.C. § 3306. (Defendant's Reply, p1).
A motion for summary judgment shall be granted if the pleadings, depositions and affidavits 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. Fed.R.Civ.P. 56; Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994)(en banc). Initially, the party moving for summary judgment must demonstrate the absence of any genuine issues of material fact. When a party seeking summary judgment bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if such evidence were uncontroverted at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim. Id. If the moving party fails to carry this burden, his motion must be denied. If he succeeds, however, the burden shifts to the non-moving party to show that there is a genuine issue for trial.1 Id. at 322-23, 106 S.Ct. 2548. Once the burden shifts to the respondent, he must direct the attention of the court to evidence in the record and set forth specific facts sufficient to establish that there is a genuine issue of material fact requiring a trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Fed.R.Civ.Pro. 56(e). The responding party may not rest on mere allegations or denials of the adverse, party's pleadings as a means of establishing a genuine issue worthy...
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...De, 111 F.3d 1239, 1248 (5th Cir.1997) (citing Randolph v. Laeisz, 896 F.2d 964, 971 (5th Cir.1990)); Romero v. Cajun Stabilizing Boats, Inc., 501 F.Supp.2d 816, 824 (W.D.La.2007). 1. Actual Knowledge of a Condition Posing an Unreasonable Risk of Harm A plaintiff must provide evidence showi......