Biering v. Harvey's Iowa Management Company, Inc.

Full title: KRISTINE BIERING vs. HARVEY'S IOWA MANAGEMENT COMPANY, INC

Court: United States District Court, D. Nebraska

Date published: Jun 1, 2000

8:99CV48 (D. Neb. Jun. 1, 2000)

Opinion

8:99CV48

June 2000

MEMORANDUM AND ORDER

BATAILLON, Judge

This matter comes before the Court on the defendant's motion for summary judgment (filing 33). In support of its motion, the defendant has filed an index of evidence (filing 34) and submitted a brief. In opposition to the motion, the plaintiff has filed an index of evidence (filing 43) and submitted a brief in opposition. On June 15, 2000, the Court heard oral arguments. After carefully considering the evidence and arguments of counsel, the Court will grant the defendant's motion.

I. Factual Background

The plaintiff was employed as a part-time blackjack dealer at Harvey's Casino and worked on the upper or main decks of the M/V Kanesville Queen. The M/V Kanesville Queen is a 272-foot steel excursion vessel which operates as a casino river-boat on the Missouri River. The vessel is under the jurisdiction of the United States Coast Guard. The vessel has officers, including a captain and chief engineer, mates, as well as engineering technicians, deck hands, and security personnel. These operational personnel are known as the "hard crew." The gaming employees, including the plaintiff, are known as the "soft crew."

The M/V Kanesville Queen takes 100 cruises on the Missouri River during the excursion season which runs from April 1 through October 31 of each year. The cruises occur during the early morning hours. When the vessel is not cruising, the vessel is moored in a slip.

During her employment, the plaintiff worked a seven- to eight-hour shift beginning at approximately 8:00 p.m. The plaintiff never worked abroad the vessel while it was cruising. On September 11, 1997, at approximately 12:20 a.m., as she was returning to her work from her hourly break, the plaintiff tripped while descending one the vessel's interior staircases and sustained personal injuries.

On February 10, 1999, the plaintiff filed a three-count complaint alleging jurisdiction based on the Jones Act, 46 U.S.C. § 688, and the General Maritime Law of the United States, including the doctrines of unseaworthiness and maintenance and cure. The defendant has filed a motion for summary judgment, claiming that because the plaintiff is not a "seaman" as contemplated by the Jones Act and general admiralty and maritime law, she is not entitled to recovery. The plaintiff opposes the motion, contending that she qualifies as a "seaman" under federal law.

II. Standard of Review

A court ruling on a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that the court can draw from the facts. Fed.R.Civ.P. 56(b)(c). The moving party bears the responsibility to identify those portions of the record which illustrate the lack of a genuine issue of material fact. If a moving party carries this burden to show the nonexistence of a material fact, the nonmoving party must go beyond the pleadings to the evidence and specify facts establishing a genuine issue of material fact for trial.

To recover from an employer under either the Jones Act or general maritime law, a plaintiff must be a "seaman." The "seaman" status inquiry is a mixed question of law and fact. Often, it will be inappropriate to take the question from the jury. However, the Supreme Court has ruled that where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to a vessel in navigation, a court may take the question from the jury by granting summary judgment. Chandris, Inc. v. Latsis, 515 U.S. 347, 371 (1995).

III. Discussion

In order to recover under the Jones Act or general maritime law, a plaintiff must establish that he/she is a "seaman." Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 87 (1991). In Chandris, Inc. v. Latsis, the United States Supreme Court declared that there were two essential requirements for seaman status to exist. The Court explained:

First, as we emphasized in Wilander, "an employee's duties must `contribut[e] to the function of the vessel or to the accomplishment of its mission. . . .'" (Citations omitted.) Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea. . . . (Citations omitted.)

515 U.S. at 368-69.

The Court further declared:

The Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to `the special hazards and disadvantages to which they who go down to sea in ships are subjected.' (Citation omitted.). . . . In our view, `the total circumstances of an individual's employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereupon.' (Citation omitted.) The duration of a worker's connection to a vessel and the nature of the worker's activity, taken together, determine whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time.

Id. at 370.

Two years later, in 1997, the Supreme Court decided Harbor Tug Barge Co. v. Papai, 520 U.S. 548 (1997). The Supreme Court in Papai stated the issue of whether an employee satisfies seaman status often will turn on the second standard in Chandris "which requires the employee to show a `connection to a vessel in navigation. . . ." Papai, 520 U.S. at 555. The Court explained:

For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee's connection to the vessel must concentrate on whether the employee's duties take him to sea. This will give substance to the inquiry both as to the duration and nature of the employee's connection to the vessel and be helpful in distinguishing land-based from sea-based employees.

Id.

In the instant case, the defendant has conceded, for the limited purpose of its motion for summary judgment, that the M/V Kanesville Queen is a "vessel in navigation" for purposes of the Jones Act. The defendant also has conceded that the plaintiff's employment abroad the Kanesville Queen advanced the gaming mission of the defendant. Hence, the only issue before the Court is whether there are any facts from which a jury can draw a rational inference from the evidence that the plaintiff has sufficient connection to a vessel in navigation and the perils attendant thereon.

Upon careful consideration of the evidence and arguments presented, the Court finds that the only rational inference to be drawn is that the plaintiff is not a seaman but rather a land-based worker employed upon a vessel in navigation. The undisputed evidence establishes that at all relevant times the plaintiff worked the night shift, during which time the vessel did not cruise. As such, her employment did not require her to transverse the navigable waterways of the Missouri River. She, therefore, was not exposed to the perils of sea. Accordingly, because the Court finds that at no time during her employment with the defendant did the plaintiff attain seaman status, entry of summary judgment is appropriate.

IT IS HEREBY ORDERED that the defendant's motion for summary judgment (filing 33) is granted.

JUDGMENT

In accordance with the Court's Memorandum and Order filed today (filing ___), judgment is entered in favor of the defendant and against the plaintiff.