Rush v. Casino Magic Corp., 1998-CA-01161-SCT.
| Decision Date | 01 July 1999 |
| Docket Number | No. 1998-CA-01161-SCT.,1998-CA-01161-SCT. |
| Citation | 744 So.2d 761 |
| Parties | Rhonda RUSH v. CASINO MAGIC CORPORATION, Mardi Gras Casino Corporation and Fictitious Parties A B C. |
| Court | Mississippi Supreme Court |
Kenneth R. Watkins, Gulfport, Attorney for Appellant.
George F. Bloss, III, Richard Sliman, Gulfport, Matthew Mille, Attorneys for Appellees.
EN BANC.
¶ 1. Rhonda Rush ("Rush") worked as a cocktail waitress at the Casino Magic ("Casino") facility from September 15, 1991, until February 5, 1992, when she slipped on what was believed to be "chapstick" lying on the floor. Rush has undergone three back surgeries and remains in constant pain, unable to return to work. Rush filed suit against the Casino, alleging that the Casino was a "vessel" for the purposes of the Jones Act and General Maritime Law. She further alleged that the Casino is exposed to the "perils of the sea," has characteristics generally associated with Jones Act vessels, and is in navigation.
¶ 2. Rush worked as a cocktail waitress at the Casino from September 15, 1991, until February 5,1992, when she slipped on "chapstick" lying on the floor. Rush has undergone three back surgeries and remains in constant pain, unable to return to work.
¶ 3. Rush filed suit against the Casino. She filed her claim under 46 U.S.C.App. § 688, alleging that she was a seaman injured while working on a maritime vessel. She further alleged that the Casino was a "vessel" for the purposes of the Jones Act and General Maritime Law. She also alleged that the Casino is exposed to the "perils of the sea," has characteristics generally associated with Jones Act vessels, and is in navigation.
¶ 4. The Casino answered, denying that Rush was seaman and that the Casino was a vessel. The Casino then moved for summary judgment. The trial court granted summary judgment for the defendants, citing King v. Grand Casinos of Mississippi, Inc.-Gulfport, 697 So.2d 439 (Miss.1997), Thompson v. Casino Magic Corp., 708 So.2d 878 (Miss.1998), and Lane v. Grand Casinos of Mississippi, Inc.-Gulfport, 708 So.2d 1377 (Miss.1998), for the proposition that Rush was not a seaman under the Jones Act.
I. WHETHER STATUTORY QUALIFICATIONS REQUIRE THE MARDI GRAS CASINO VESSEL TO BE A "CRUISE VESSEL" LOCATED ON A NAVIGABLE WATER.
II. WHETHER THE MARDI GRAS CASINO VESSEL IS A "VESSEL" FOR PURPOSES OF THE JONES ACT AND GENERAL MARITIME LAW.
III. WHETHER A COCKTAIL WAITRESS INJURED ABOARD A VESSEL IS A JONES ACT "SEAMAN."
IV. WHETHER THE TRIAL COURT ERRED IN NOT UPHOLDING THE PLAINTIFF'S "UNSEAWORTHINESS" CLAIM UNDER GENERAL MARITIME LAW.
¶ 5. The standard of review governing reviews of summary judgment is well settled in this state:
The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court, conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to a judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where on party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.
Lumberman's Underwriting Alliance v. City of Rosedale, 727 So.2d 710, 712-13 (Miss.1998) (quoting Aetna Casualty & Surety Co. v. Berry, 669 So.2d 56 (Miss. 1996)).
¶ 6. This Court has further stated that... [A] motion for summary judgment should be denied unless the trial court finds beyond any reasonable doubt that the plaintiff would be unable to prove any facts to support his/her claim.
Lumberman's Underwriting Alliance, 727 So.2d at 713.
¶ 7. Rush maintains that the Mardi Gras Casino gaming vessel is required by law to be a cruise vessel located on navigable waters. Rush further maintains that because the gaming vessel is a cruise vessel located on navigable waters, she should be entitled to recovery for her injuries under the Jones Act.
¶ 8. Rush cites three statutes in support of her contention: Miss.Code Ann. §§ 97-33-1 & -7 (1994) and 27-109-1 (1990). Section 27-109-1 defines a cruise vessel. Section 97-33-1 prohibits betting, gaming, or waging unless the betting, gaming, or waging occurs on a cruise vessel as defined in Miss.Code Ann. § 27-109-1. Section 97-33-7 prohibits certain gaming devices except those found on a cruise vessel as defined in Miss.Code Ann. § 27-109-1.
¶ 9. This exact issue was recently addressed by this Court in King v. Grand Casinos of Mississippi, Inc.-Gulfport, 697 So.2d 439 (Miss.1997). There we held that:
... The term "vessel" has an entirely different meaning in the context of federal maritime law than in the context of the gaming licensing statutes of this State. Assuming that the Grand Casinos is in fact a "vessel" for the purposes of this State's gaming regulations, said fact is nevertheless utterly irrelevant to the issue of whether said casino constitutes a "vessel" for the purposes of the federal maritime law. The definition of "vessel" in § 27-109-1 makes no reference whatsoever to the definition of "vessel" under either Jones Act legislation and/or under general maritime case law, nor, of course, do the applicable maritime cases on point make reference to the gaming statutes of this state in defining the term "vessel."
King, 697 So.2d at 442-43. We reiterated King's Thompson v. Casino Magic Corp., 708 So.2d 878 (Miss.1998), stating:
This Court recently determined that shore side casinos constructed out of navigable barges were not vessels for purposes of federal maritime law. King v. Grand Casinos of Mississippi, Inc.— Gulfport, 697 So.2d 439 (Miss.1997). King defers to the Fifth Circuit federal court ruling that moored barges for gambling are not vessels under federal maritime law. Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir.1995) consolidated with Ketzel v. Mississippi Riverboat Amusement, Ltd., 867 F.Supp. 1260 (S.D.Miss. 1994).
¶ 10. However, in Thompson we said that "it should be made clear that in each case the trial court must consider the factual circumstances of each particular case in light of the concerns expressed by this opinion as well as by the Fifth Circuit's comments in Pavone v. Mississippi Riverboat Amusement Corp. as quoted supra when determining if a particular barge is a vessel for the purposes of federal maritime jurisdiction." Id. at 882. In Thompson we did not decide whether the Casino Magic barge was a vessel for maritime purposes because we concluded that Thompson, a casino "change person," was not a seaman.
¶ 11. This issue is, therefore, without merit.
III. WHETHER A COCKTAIL WAITRESS INJURED ABOARD A VESSEL IS A JONES ACT "SEAMAN."
¶ 12. Again, this Court has addressed this exact issue and concluded that a cocktail waitress is not a "seaman" for the purposes of the Jones act. The facts in King are almost identical to the facts in the case sub judice: a cocktail waitress slipped on something, falling to the floor and injuring herself. In King, this Court stated:
Congress and the federal courts have established the rather generous remedies available to seamen injured in their jobs based in large part upon the increased risks which those workers face in said jobs. A seaman faces numerous dangers and hardships which are not faced by those who work on land. King's work duties, by contrast, do not place her at any greater risk of maritime injury than if she worked at any other seaside entertainment facility or restaurant on the Gulf Coast. The notion that a waiter or waitress working at a shore-based casino should be considered to be a "seaman" based upon the fact that the casino is built on barges which were once properly considered to be "vessels" is contrary to notions of fairness and common sense.
¶ 13. This Court in Thompson set forth the criteria for one to be considered a seaman: (1) the duties of the employee must contribute to the function of the vessel or to the accomplishment of its mission, and (2) the employee must have a connection to a vessel that is actually in navigation that is substantial in terms of both its duration and its nature. Applying those criteria to a casino "change person," Thompson found no seaman status. Thompson, 708 So.2d at 882. In Lane v. Grand Casinos of Mississippi, Inc.—Gulfport, 708 So.2d 1377 (Miss.1998), we applied these criteria and found that a casino janitorial employee was not a seaman. In Wininger v. Ameristar Casino, Inc., 1999 WL 228986, ___ So.2d ___ (Miss.App., 1999), a divided Court of Appeals recently followed Lane and affirmed a summary judgment that an Ameristar Casino security guard was not a seaman. The dissent argued that there was a sufficient evidentiary basis to establish a jury issue on both the vessel and seaman issues.
¶ 14. Based on these criteria, Rush is not a seaman for the purposes of the Jones Act. First, the casino was moored at the time of the accident. It was not in navigation, as required by criterion 2. Second, a cocktail waitress can in no way be found to contribute to the function of the...
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