Tucker v. Cascade Gen., Inc.
| Decision Date | 13 November 2014 |
| Docket Number | 3:09-cv-1491-AC |
| Parties | PHILIP TUCKER, Plaintiffs, v. CASCADE GENERAL, INC., an Oregon corporation, and UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Oregon |
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Philip Tucker ("Tucker") brings this negligence action against Cascade General, Inc. ("Cascade") and the United States to recover damages for personal injury to Tucker.1 Tucker sustained permanent and life-altering injuries aboard the Dredge ESSAYONS, a public vesselowned by the United States, when a hatch cover from the upper pump room fell through the hatch opening and struck him in the head while he was working below in the lower pump room.
The United States and Cascade filed cross-claims against each other. Prior to trial, Tucker settled his claim against Cascade; and Cascade's cross-claims against the United States were dismissed, with prejudice. The court defers ruling on the United States' contractual cross-claims against Cascade.
A nine-day court trial of Tucker's case against the United States commenced on April 28, 2014, and concluded on May 23, 2014.2 On June 18, 2014, the court heard closing summations, and the parties' final submissions were filed on August 22, 2014, On August 25, 2014, the United States filed an Objection and Motion to Strike References in Plaintiff's Proposed Findings of Fact to Excluded Exhibits. Thereafter, the court took this case under advisement.
After careful consideration of the facts and evidence presented by the parties at trial through live and video witnesses, deposition testimony, and exhibits, and having had the opportunity to assess the demeanor of the witnesses, and review and weigh the evidence, the court makes the following findings of fact, which the court finds and holds were established by a preponderance of the evidence, and conclusions of law, pursuant to Rule 52(a)(1) of the Federal Rules of Civil Procedure. Moreover, to the extent any finding of fact constitutes a conclusion of law, the court adopts it as such and, to the extent any conclusion of law constitutes a finding of fact, the court adopts it as such.
After the parties filed their respective Proposed Findings of Fact and Conclusions of Law, the United States filed an Objection and Motion to Strike References in Plaintiff's Proposed Findings of Fact to Excluded Exhibits (doc. # 351). The United States moves to strike references and related argument in Tucker's proposed post-trial findings concerning photographs excluded prior to trial and not admitted into evidence.
Tucker has voluntarily withdrawn the challenged exhibits and related argument, In addition, the court neither considered, nor relied upon the objected exhibits in reaching its decision below. Accordingly, that portion of the United States' Motion is DENIED, as moot.
Additionally, the United States renews its request to have certain transcribed testimony and videos assigned exhibit numbers and admitted as part of the trial record. Tucker has no objection. The portion of the government's Motion that requests the following evidence be admitted is GRANTED:
Exhibit 603:
Stevens Transcript;
Exhibit 604:
Dyer Transcript;
Wolff Transcript;
Wolff Video;
Tucker Transcript;
Exhibit. 606(b):
Tucker Video;
Exhibit 607:
Dr. Hamburg Video.
The Revised Joint Pretrial Order (doc. #235) contains the following joint stipulations:
1. At times material hereto, Tucker has been a resident of Clark County, Washington.
2. At times material hereto, the Department of the Army, Army Corps of Engineers ("Corps"), which is a department of the United States of America, had offices in Portland, Multnomah County, Oregon, and within this District.
3. The Dredge ESSAYONS ("Dredge" or "ESSAYONS") is a public vessel of the United States, which was operated by the Corps and was located in this District when suit was filed.
4. At times material hereto, the United States entered into two contracts with Cascade to perform maintenance and repairs on the Dredge at its Portland, Oregon facility. Under one of those contracts, Cascade was required to clean in the Dredge's lower pump room.
5. Tucker was an employee of West Coast Marine Cleaning ("West Coast"), which, inter alia, cleaned tanks and bilges on vessels such as the Dredge.
6. Cascade hired West Coast to clean areas of the Dredge for the Corps.
7. On September 26, 2008, Tucker and other West Coast workers were onboard the Dredge at Cascade's Portland shipyard to accomplish this work.
8. While Tucker was working in the lower pump room on the Dredge, one of Cascade's employees, Joshua Economides, attempted to lift one end of a hatch cover or deck plate (the parties disagree on the proper terminology for this object)3 that was located in the upper pump room on the Dredge. Economides was unable to hold the cover, and it dropped to the lower pump room where Tucker was working, injuring him.
9. As a result of his injuries, Tucker incurred medical expenses and lost income. The parties do not agree on the amount, extent, or nature of his damages, but Cascade and the United States have not disputed that Tucker sustained injuries in the accident on the Dredge.
1. Tucker was born on February 15, 1975, and was thirty-three years old on September 26, 2008, the date of the accident. Tucker is married to Toni Hotten, who was previously dismissed from the lawsuit. The couple has a daughter, Chelsea, age 13.
2. In 2008, Cascade owned and operated a shipyard on the Columbia River at Swan Island, Portland, Oregon. Cascade employs eight trades or crafts of shipyard repair workers, and between 200 and 600 Cascade shipyard repair workers work on any given day. (Derek Bristow Trial Tr. 1536:6-15, May 22, 2014; William John Kelley Trial Tr. 534:6-10, April 22, 2014; Def.'s Trial Ex. 546.)
3. The Dredge has four primary decks. (Def.'s Trial Ex. 503 at 3; Def.'s Trial Ex. 505 at 3; (Trial Tr. Clement 715: 5-25.) The forward portion of the vessel contains the Dredge's pump room, a three-deck high room connected vertically by a central opening. (Def.'s Trial Ex. 503 at 3; Def.'s Trial Ex. 504.) The lower pump room, situated on the lower deck, houses most all of the dredging pumps, piping, and related equipment, and provides access to the bilge tanks. (Def.'s Trial Ex. 503 at 3; Def.'s Trial Ex. 504; Pl.'s Trial Ex. 317H.) The second level, identified as the main deck on vessel drawings, consists primarily of the large central opening surrounded by a perimeter catwalk.4 (Pl.'s Trial Ex. 317F; Pl.'s Trail Ex. 317G.) The third level of the pump room, located on the upper deck, was called the upper pump room. (Def.'s Trial Ex. 503 at 1, 3; Def.'s Trial Ex. 504.) The top deck above the pump room was the poop deck orweather deck.5 People travel from one level to the next using an incline-ladder staircase situated approximately forty feet forward of the pump room, (Def.'s Trial Ex. 503 at 3; Def.'s Trial Ex. 504; Patrick Sloan Trial Tr. 812:15-22, May 1, 2014.)
4. In 1991, the Corps opted to modify the cover for the opening or hatchway in the deck of the ESSAYONS's upper pump room, (Def.'s Trial Ex. 505 at 1, 2.) The opening in the upper pump room deck was large enough to permit dredging equipment to move between the three decks comprising the pump room. Most of the time, the opening was covered with a removable gripstrut grating bolted to the deck with a central walkway. (Stephen R. Cinkosky Trial Tr. 330: 13-15; 337: 13-18, April 29, 2014.) The Corps assigned its mechanical engineer, Stephen R. Cinkosky, the task of designing a stauncher new cover for the opening that was less cumbersome to remove. (Cinkosky Trial Tr. 317:8-10; 335:17-336:6; 337:2-23.)
5. Cinkosky's design was acceptable with respect to American Bureau of Shipping ("ABS") class rules and U.S. Coast Guard regulations. (Christopher Todd Clement Trial Tr. 734:22-735:7, May 1, 2014.)
6. The Corps' personnel looked for guidance on safety issues for activities such as the modification project in the Corps' safety manual titled Safety and Health Requirements Manual ("Safety Manual"), commonly known as EM 385-1-1. (Pl.'s Trial Ex. 414; Jeffery McDonald Trial Tr. 77: 6-16, April 28, 2014.) The Corps' Safety Manual in effect in 1991, was published in October 1987. (Pl.'s Trial Ex. 414 at 1.) The Safety Manual states:
(Pl.'s Trial Ex. 312 at 1; Pl.'s Trial Ex. 414 at 3.) Section 31 of the Safety Manual is titled "Floor and Wall Holes and Openings." (Pl.'s Trial Ex. 414 at 152; Cinkosky Trial Tr. 366:12-18.) It sets forth the following provisions:
(Pl.'s Trial Ex. 414 at 152 (emphasis added).) Section 10 of the Safety Manual is titled "Signals, Warning Signs, and Signaling." (Pl.'s Trial Ex. 414 at 51.) It sets forth the following provisions regarding safety warnings:
10.C.01 Warning signs shall be placed and provide adequate warning of hazards to workers and the public. Signs should be removed or covered when the hazards no longer exist.
7. If the Corps' personnel sought to deviate from Safety Manual provisions,...
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