Spears v. Kajima Engineering & Cost., Inc.

• Court: California Court of Appeals
• Writing for the Court: Johnson
• Citation: Spears v. Kajima Engineering & Cost., Inc., 124 Cal.Rptr.2d 97, 101 Cal.App.4th 466 (Cal. App. 2002)
• Decision Date: 21 August 2002
• Docket Number: No. B149539.,B149539.
• Parties: Melvin SPEARS, Plaintiff and Appellant, v. KAJIMA ENGINEERING & CONSTRUCTION, INC., Defendant and Respondent.

124 Cal.Rptr.2d 97

101 Cal.App.4th 466

Melvin SPEARS, Plaintiff and Appellant, v. KAJIMA ENGINEERING & CONSTRUCTION, INC., Defendant and Respondent.

No. B149539.

Court of Appeal, Second District, Division 7.

August 21, 2002.

Certified for Partial Publication.^*

Review Denied Nov. 26, 2002.

Stolpman, Krissman, Elber & Silver, Joel Krissman, Long Beach, Donna Silver; McGuinn, Hillsman & Palefsky and John R. Hillsman, San Francisco, for Plaintiff and Appellant.

Cox, Wootton, Griffin, Hansen & Poulos, Richard C. Wootton and Mitchell S. Griffin, San Francisco, for Defendant and Respondent.

JOHNSON, J.

Melvin Spears was injured while he was working aboard a derrick barge owned and operated by his employer, Kajima Engineering & Construction, Inc. Spears applied for and apparently has received benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA").¹ He filed this action against Kajima alleging he is a "seaman" entitled to recover damages under the Jones Act² and general maritime law. He filed a first amended complaint further alleging he is entitled to recover damages under the LHWCA, even if he does not meet the test for seaman status, because Kajima breached its duty as a third-party vessel owner (not as Spears' employer) to turn over a seaworthy barge to Spears and others working on a waterfront construction project. The trial court granted Kajima's motions for summary adjudication and summary judgment. We affirm.

FACTS AND PROCEEDINGS BELOW

The following facts are undisputed.

On or about April 4, 1996, the International Union of Operating Engineers, Local 12 dispatched Spears to work for Kajima as a heavy duty repairman on a job called the Berth 301 project. Kajima was constructing a wharf at Terminal Island. Spears reported for work at Todd's Shipyards where a crew was refurbishing a derrick barge Kajima owned, named the MR. GUY. The barge is approximately 130 feet long and 60 feet wide and has a Clyde crane attached to it. During this "mobilization phase" of the project, the MR. GUY remained tied to a pier at Todd's Shipyards. Spears performed construction repair work on the barge, such as "cutting and welding" on the crane. He also assisted in "running" or changing the MR. GUY's towing cables.

On or about May 21, 1996, a tugboat towed the MR. GUY to the waterfront construction site. None of Kajima's employees rode the tugboat or assisted in the movement of the MR. GUY from Todd's Shipyards to the construction site. The site was located at the southwestern end of Pier 300 on Terminal Island. It was "inside the breakwater" in the Los Angeles Harbor, "over one and a half nautical miles from the open waters of the Pacific Ocean." According to Spears, the MR. GUY was positioned between 200 and 400 yards off shore during this phase of the project. According to Kajima and other members of the crew, the barge was never more than 207.6 feet from shore. The crew took a boat to reach the MR. GUY and wore life vests while on board. The barge "was exposed to vessel traffic, swells and wakes."

Spears worked at the construction site when the crew was engaged in pile driving operations. He worked as a mechanic, responsible for maintenance and repair work on the MR. GUY and its equipment. He also assisted in "pulling lines" or, in other words, making fast and letting go lines to other barges which brought materials to the crew. He sometimes went on board the materials barges to assist in the transfer of equipment. He also did some work on land during this phase of the project.

Spears did not consider himself to be a seaman while he was working aboard the MR. GUY. The members of the crew were all dispatched from non-seaman's unions, such as operating engineers and pile drivers unions. Spears did not receive any training on what to do if a man went overboard, or the barge caught fire or there was bad weather. Kajima refers to this type of training as "perils of the sea training."

During the pile driving operations, the MR. GUY was secured by four anchors and a headline, which ran from the bow of the barge to an anchor on shore. The barge moved by "fleeting" on its anchor wires. To move the barge farther away from shore, the crew manipulated the winches to pull in on the stern anchor and let out on the bow anchor. Occasionally tug crewmen repositioned the barge by moving its anchors one at a time. There also were times when a tugboat repositioned the barge. At all times when Spears was aboard the MR. GUY, it was anchored to the harbor bottom and secured by a headline to shore.

Spears sustained an injury on August 21, 1996, while he was working aboard the MR. GUY. That morning, the crew's "captain," Raul Contreras, commented the swing locks (also referred to as the swing stops) on the crane would have to be fixed. The crew had to disengage the swing locks in order to use the crane during pile driving operations. An air-activated mechanism was supposed to move the locks from the engaged to the disengaged position when the crane operator pushed a button. The crew had experienced problems with the locks sticking since the mobilization phase of the project. Therefore, the crew had been using a sledgehammer to "pound" the locks and move them into the disengaged position.

Spears told Contreras he would inspect the locks when he had some time. Later that morning, he decided to take a look. Spears says he told Contreras he was going up to inspect the locks and he expected Contreras to notify the crane operator. Contreras claims he did not hear Spears say that. Spears climbed up on top of the platform on the crane. Apparently the crane operator did not know Spears was there. While Spears was inspecting the locks, the crane operator rotated the crane. Two fingers on Spears' right hand were caught in a pinch point and amputated.

In July 1999, Spears filed this action against Kajima. The original complaint alleges three causes of action, all based on the assumption Spears meets the test for seaman status. The first cause of action for violation of the Jones Act alleges as a result of Kajima's negligence, the crane aboard the MR. GUY was "dangerous, unsafe and hazardous to crew members" and Spears was injured because Kajima "failed to furnish [him] with a reasonably safe place to work." The second cause of action for "Maintenance and Cure" alleges after Spears became disabled, Kajima "failed and refused to furnish [Spears] all expenses of his Maintenance and Cure" as required by law. The third cause of action for "unseaworthiness" alleges Kajima breached its warranty and representation its "vessels and their appurtenances were reasonably safe and seaworthy."

The parties conducted discovery. On August 7, 2000, Kajima filed a motion for summary judgment/adjudication.³ Kajima argued the causes of action in the complaint fail because Spears cannot meet the test for seaman status set forth by the United States Supreme Court in Chandris, Inc. v. Latsis.⁴ Kajima argued Spears is a land-based mechanic, not a seaman, and the MR. GUY is a stationary work platform, not a vessel in navigation. Kajima relied on deposition testimony from Spears and other crew members and also submitted a declaration from John F. Seery, the project manager on the Berth 301 project.

In opposition to the motion, Spears argued he meets the test for seaman status because he is an experienced "marine mechanic" who performed deckhand duties aboard the MR. GUY. He also argued the MR. GUY is a vessel in navigation within the meaning of the Supreme Court test. Spears relied on his own deposition testimony and that of other crew members. He also submitted his own declaration and that of his expert witness, Captain Mitchell S. Stoller.

Spears objected to Seery's declaration submitted by Kajima on several grounds, including the declaration lacks foundation because Seery was not "regularly aboard the MR. GUY." Kajima objected to Spears' declaration on the ground it contradicts his deposition testimony. Kajima objected to Stoller's declaration on several grounds, including it states legal conclusions and lacks foundation.

Before the hearing on Kajima's motion, the trial court granted Spears' request for leave to amend his complaint to state a fourth cause of action for vessel owner negligence under the LHWCA.⁵ This cause of action is not based on the assumption Spears meets the test for seaman status. It is based on allegations Kajima had constructive knowledge of the defective swing locks on the crane aboard the MR. GUY and was negligent in its capacity as a vessel owner in failing to turn over a seaworthy barge to Spears and the others working on the project.

On October 5, 2000, the trial court heard Kajima's motion for summary judgment/adjudication on the three causes of action in the original complaint. In ruling on the parties' evidentiary objections, the court (1) overruled Spears' objections to Seery's declaration, (2) sustained Kajima's objections to Spears' declaration "to the extent that it contradicts [Spears'] deposition testimony" and (3) sustained Kajima's objections to Stoller's declaration "as to statements based on inadequate foundation and as to conclusions of law." The court denied the summary judgment motion because it did not address the fourth cause of action in the first amended complaint and granted the summary adjudication motion as to the first, second and third causes of action.

On November 6, 2000, Kajima filed a motion for summary judgment on the fourth cause of action for vessel owner negligence under the LHWCA. Kajima argued this cause of action fails because Spears' injury occurred when Kajima was acting in its capacity as Spears' employer. Kajima maintained Spears was not injured as a proximate result of some breach which occurred when Kajima was acting in its capacity as a vessel owner. Therefore, Kajima argued Spears' exclusive remedy for his injury is an application for workers' compensation benefits under...