Wilkinson v. FA Vinnen & Co.

• Decision Date: 18 March 2021
• Docket Number: CASE NO. CV419-112
• Court: U.S. District Court — Southern District of Georgia
• Parties: CHANDLER N. WILKINSON, Plaintiff, v. FA VINNEN & CO., GMBH & CO. KG; ZIM INTEGRATED SHIPPING; and SCHIFFAHRTSGESELLSCHAFT "MERKUR HORIZON," MBH & CO. KG; Defendants.

CHANDLER N. WILKINSON, Plaintiff, v. FA VINNEN & CO., GMBH & CO. KG;ZIM INTEGRATED SHIPPING; andSCHIFFAHRTSGESELLSCHAFT "MERKUR HORIZON," MBH & CO. KG; Defendants.

CASE NO. CV419-112

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

March 18, 2021

ORDER

Before the Court is Defendant Zim Integrated Shipping's Motion for Summary Judgment (Doc. 39) and Defendants FA Vinnen & Co. (GMBH & CO. KG) ("FA Vinnen") and Schiffahrtsgesellschaft "Merkur Horizon" MBH & CO. KG's ("Merkur Horizon") Motion for Summary Judgment (Doc. 42). For the following reasons, Defendant Zim Integrated's motion (Doc. 39) is GRANTED and Defendants FA Vinnen and Merkur Horizon's motion (Doc. 42) is GRANTED.

BACKGROUND¹

This case arises from an injury Plaintiff Chandler Wilkinson sustained while working as a stevedore aboard the M/V ZIM ISTANBUL ("Vessel"), a vessel owned and managed by Defendant Merkur Horizon and Defendant FA Vinnen (collectively, "Vessel Defendants").² (Doc. 26 at ¶¶ 2-6, 20; Doc. 42, Attach. 7 at 20; Doc. 52, Attach. 1 at 1.) On the day of the incident, February 20, 2018, the Vessel called at the Port of Savannah to load and discharge intermodal container cargo. (Doc. 51, Attach. 1 at 1-2.) Plaintiff, an "extra" for the International Longshoreman's Association Local 1475, was working for non-party Ports America Stevedores ("Ports America") loading and discharging cargo from the Vessel.³ (Doc. 42, Attach. 1 at 58.)

On the day of the incident, Plaintiff worked as a "deck stevedore" or "deckman" overseeing cargo operations between Bay 30 and Bay 34. (Id. at 14, 52.) Plaintiff worked alongside Chris Utley, a dock man, and John T. Meacham, III ("Tripp"), the "quarterback" of the Vessel. (Id. at 52, 55; Doc. 42, Attach. 2 at 6.) It rained consistently during Plaintiff's shift, but stopped raining around the time of the incident. (Doc. 42, Attach. 1 at 59-60.)

At approximately 8:00 P.M., a crane operator radioed Plaintiff and asked Plaintiff to check that a box was properly secured on top of another box. (Id. at 63, 96.) At the time Plaintiff received the crane operator's call, Plaintiff was standing in the well deck of the Vessel. (Id. at 68.) To check the box, which was approximately four or five boxes up from the deck floor, Plaintiff ascended from the well deck to the catwalk between Bay 30 and Bay 34. (Id. at 68-69, 71.) Plaintiff then stepped onto the outboard lashing platform above the catwalk.⁴ (Id. at 69; Doc. 51, Attach. 1 at 3.) While standing on the lashing platform, Plaintiff stepped backwards with his left foot to look up at the subject box. (Doc. 42, Attach. 1 at 90.) As he stepped back, Plaintiff's left foot "came out from under [him]" and Plaintiff fell from the lashing platform to the catwalk. (Id. at 91.)

From the dock, Mr. Utley saw Plaintiff fall and radioed Mr. Meacham to attend to Plaintiff on the Vessel. (Doc. 42, Attach. 2 at 15.) When Mr. Meacham reached Plaintiff, Plaintiff told him that he "slipped and fell." (Doc. 42, Attach. 3 at 23.) As a result of the fall, Plaintiff sustained injuries to his back, including fractures to his L2, L3, and L4 vertebrae; L5-S1 bulging disc; and a left shoulder injury. (Doc. 42, Attach. 1 at 124, 129.)

On March 6, 2019, Plaintiff brought this action in the State Court of Chatham County, Georgia, seeking recovery for the injuries he sustained while working on the Vessel. (Doc. 1 at 16.) On May 16, 2019, Defendant FA Vinnen removed the action to this Court. (Id. at 1.) In turn, Plaintiff filed an amended complaint alleging that his injuries were the result of Defendants' negligence and seeking to recover under the Longshore and Harbor Workers' Compensation Act ("LSHWA"), 33 U.S.C. § 905(b). (Doc. 26 at ¶ 24; Doc. 51 at 2.) Specifically, Plaintiff alleges that Defendants negligently maintained the lashing platform from which Plaintiff fell because Defendants permitted grease to accumulate on the platform and Plaintiff slipped on the grease.⁵ (Doc. 26 at ¶¶ 29-31.) Now, Defendants have filed motions for summary judgment on Plaintiff's claims. (Docs. 39, 42.)

STANDARD OF REVIEW

According to Fed. R. Civ. P. 56(a), "[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim of defense—on which summary judgment is sought." Such a motion must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. The "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56 advisory committee notes).

Summary judgment is appropriate when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that partywill bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The substantive law governing the action determines whether an element is essential. DeLong Equip. Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989).

As the Supreme Court explained:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323, 106 S. Ct. at 2553. The burden then shifts to the nonmoving party to establish, by going beyond the pleadings, that there is a genuine issue concerning facts material to its case. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

The Court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88, 106 S. Ct. at 1356. However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id., 475 U.S. at 586, 106 S. Ct. at 1356. A mere "scintilla" of evidence, or simply conclusory allegations, will not suffice. See, e.g., Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir. 1998). Nevertheless, where a reasonable fact finder may "draw morethan one inference from the facts, and that inference creates a genuine issue of material fact, then the Court should refuse to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989).

ANALYSIS

I. DEFENDANTS FA VINNEN AND MERKUR HORIZON'S MOTION FOR SUMMARY JUDGMENT

Vessel Defendants contend that they are entitled to summary judgment on Plaintiff's negligence claims. (Doc. 43 at 1.) Section 905(b) of the LHWCA, 33 U.S.C. §§ 901-950, authorizes suits by longshoremen injured due to the negligence of a shipowner or charterer. The Supreme Court, however, has significantly narrowed the duties a shipowner or charterer owes to longshoremen under the LHWCA. See Scindia Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156, 164-72, 101 S. Ct. 1614, 1620-25, 68 L. Ed. 2d 1 (1981). These duties, now known as the Scindia duties, include (1) the turnover duty, (2) the active control duty, and (3) the duty to intervene. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98, 114 S. Ct. 2057, 2063, 129 L. Ed. 2d 78 (1994).

In this case, the only Scindia duty at issue is the turnover duty. (Doc. 51 at 15.) With respect to the turnover duty,

[a] vessel must exercise ordinary care under the circumstances to turn over the ship and its equipment and appliances in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship's service or otherwise, will be able by the exercise of ordinary careto carry on cargo operations with reasonable safety to persons and property.

Howlett, 512 U.S. at 98, 114 S. Ct. at 2063 (citation and internal quotations omitted). As a corollary to this duty, the vessel must also

warn the stevedore of any hazards on the ship or with respect to its equipment, so long as the hazards are known to the vessel or should be known to it in the exercise of reasonable care, and would likely be encountered by the stevedore in the course of his cargo operations, 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.

Id. at 98-99, 114 S. Ct. at 2063 (citation and internal quotations omitted). "The duty to warn, however, is narrow. It does not include dangers which are either (1) open and obvious, or (2) which a reasonable competent contractor should anticipate encountering." In re Knudsen, 710 F. Supp. 2d 1252, 1274 (S.D. Ala. 2010); see also Howlett, 512 U.S. at 98-99, 114 S. Ct. at 2063.

Plaintiff alleges that the Vessel Defendants breached their turnover duty by turning the Vessel over to the stevedores with a hazardous condition. (Doc. 51 at 16.) Namely, Plaintiff alleges that there was grease on the lashing platform from which Plaintiff fell and that the Vessel Defendants failed to warn Plaintiff about the alleged grease. (Id. at 19.) In his brief, Plaintiff also suggests that the Vessel Defendants violated the turnover dutybecause the Vessel's crew failed "to conduct a proper pre-turnover inspection."⁶ (Id. at 19, 21.)

The Vessel Defendants argue that they are entitled to summary judgment on Plaintiff's negligence claims because Plaintiff cannot establish that grease was on the platform when Plaintiff fell or that the Vessel was turned over with grease on the platform. (Doc. 43 at 6.) The Vessel Defendants further contend that, even if grease was on the platform at the time the Vessel...