Opinion
Civil Action No. 99-1946, Section "A"
May 5, 2000
ORDER AND REASONS
Before the Court are motions of defendants Pride International, Inc. ["Pride"] and Noble Drilling Corporation ["Noble"] for summary judgment. Plaintiff opposes the motions, asserting that they are premature and are without merit. For reasons set out infra, the motions are GRANTED.
Plaintiff was employed by Pride as a roustabout aboard an off-shore oil rig owned by Pride; and on the rig he was injured in an encounter with Noble employees Durell Lee and Wayne Carter, assistant drillers. The facts set out infra are undisputed and are taken from plaintiff's deposition. (Only page numbers from that deposition will be cited.)
Plaintiff bad been employed by Noble on the rig, but Pride bought the rig; and some employees, including plaintiff, became Pride employees while others, including Lee and Carter. remained Noble employees. Plaintiff's deposition. p 29.
FACTS
On the rig, Lee and Carter would engage in horseplay with each other and others. To plaintiff's knowledge, no one was injured by the pranks or complained of them. Before the incident at issue, plaintiff had no such encounters with Lee. Carter had grabbed plaintiff a few times, and once chased him. Plaintiff never voluntarily engaged in any horseplay. Noble's supervisor on the rig was aware of the horseplay but did not stop it.
Pp 41-42.
Pp 43-44, 105.
p 44.
p 64.
Pp 63-65.
P 97.
116, 120-121.
Pp 120-121.
The incident involving plaintiff began as plaintiff walked past Lee and Carter. Lee grabbed plaintiff around his body and held him, but plaintiff got away. Carter immediately grabbed plaintiff. Plaintiff told Carter he could get away from Carter as he had gotten away from Lee. Plaintiff knew Carter was joking with him.
p 54.
Pp 50-51, 54.
Pp 50. 91.
p 91.
Pp 92, 97.
Carter lifted plaintiff horizontally onto his shoulders, with plaintiff's back against the back of Carter's neck and head. Carter bent plaintiff's body forward and plaintiff heard "what sounded like my back just kind of popped." He briefly lost consciousness, and then found himself on the floor with a chipped tooth and a black eye, apparently caused by a fall.
pp 50, 55-58, 91.
p 50.
Pp 50, 58-59.
Pp 50, 59, 66.
Shortly thereafter, Carter apologized, asked plaintiff not to say anything about the incident, and said he did not mean to hurt plaintiff. Plaintiff knew Carter did not intend to harm him. Carter was just "horseplaying" with plaintiff, as he did with others. But, before that incident plaintiff had never seen Carter use the "wrestling move" he used on plaintiff.
P 64.
P 98.
Pp 42, 65.
p 66.
Plaintiff suffered injury to his upper back; and his hand and leg sometimes go numb. The degree of numbness has been constant. Plaintiff also has an occasional problem with pain when he reaches with either arm.
p 92
p 120.
p 97.
TIMELINESS
Plaintiff contends that "This case is not remotely ripe for summary judgment, as depositions of the fact witnesses have not been obtained at present. . . . It is likely that the lack of discovery will mandate further memoranda."The instant motions were not prematurely filed. The pretrial conference and trial in this action are scheduled on May 11 and May 22, 2000. Pursuant to the Court's scheduling order and the regular schedule for motion hearings, the discovery deadline was April 11 and any summary judgment motions had to be filed in time to be heard on April 12, at the latest. The instant motions were timely filed and set for hearing on that date.
Record, document B.
Ibid. Motions must be filed and set to be heard no later than thirty days before trial. Thirty days before trial was April 22; and April 12 was the last hearing date before April 22.
Defendant Pride had previously scheduled the depositions of Lee and Carter on April 6 and 7. On April 6, plaintiff moved for a two-week continuance of the hearing on the summary judgment motions because, in part, his counsel had to attend two depositions "that may assist in defeating the motions for summary judgment." The Court granted the two-week continuance. Apparently, before plaintiff filed his memorandum in opposition to the summary judgment motions he had not obtained transcripts of the Lee and Carter depositions.
Record, documents 14 and 15.
Record, document 22.
Though plaintiff has not moved for another continuance, the factors considered on a motion for continuance are relevant.
To obtain a continuance of a motion for summary judgment, a party must specifically explain both why it is currently unable to present evidence creating a genuine issue of fact and. how a continuance would enable the party to present such evidence. The non-moving party may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts in opposition to summary judgment. If it appears that further discovery will not provide evidence creating a genuine issue of material fact, the district court may grant summary judgment.Access Telecom, Inc. v. MCI Telecommunications Corporation, 197 F.3d 694, 719-720 (Ca5 1999). (internal citations and quotation marks omitted.)
The depositions of Lee and Carter were taken before plaintiff filed his opposition memorandum. plaintiff has not averred that any facts from those depositions would bolster his opposition. The undisputed facts from plaintiff's deposition show that summary judgment is appropriate. Plaintiff has shown no need for further memoranda or delay in resolving these motions.
MOTIONS
Plaintiff's complaint asserts that he was a seaman and alleges jurisdiction pursuant to the Jones Act, 46 App. U.S.C. § 688, and general maritime law. The complaint alleges that "A cause of plaintiff's injuries was negligence attributable to the defendants in having an unseaworthy vessel." Defendants contend that they cannot be liable to plaintiff because the undisputed facts do not show any Jones Act negligence or unseaworthiness.
Defendants do not contest the seaman status or the law asserted by plaintiff.
Complaint, paragraph V.
LAW
Summary judgment is mandated if the pleadings, discovery materials, and affidavits show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.CIV.P. Rule 56(c). This Court's function is not to weigh the evidence, determine credibility or determine the truth of the matter, but to determine whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 2512-2513 (1986).
The substantive law will identify which facts are material. Anderson, 477 U.S., at 248, 106 S.Ct., at 2510. The substantive law applicable here is the Jones Act and maritime law as applied to an "assault" by one seaman on another. Plaintiff refers to the incident at issue as an assault and defendants have addressed it as such.
Under the Jones Act, seamen have "a right of recovery against their employers for negligence resulting in injury or death." Moragne v. States Marine Lines, Inc., 398 U.S. 375, 394, 90 S.Ct. 1772, 1784 (1970).
"Establishing shipowner negligence in assault cases normally requires evidence supporting either of the following propositions: 1) that the assault was committed by the plaintiff's superior for the benefit of the ship's business, or 2) that the master or ship's officers failed to prevent the assault when it was foreseeable." 1B Benedict on Admiralty § 31, at 3-242 (1987).Miles v. Melrose, 882 F.2d 976, 983-984 (CA5 1989).
Under maritime law, a vessel may be unseaworthy if a seaman on it is not "equal in disposition to the ordinary men of the calling." Boudoin v. Lykes Brothers Steamship Co., Inc., 348 U.S. 336, 337, 75 S.CL. 382, 384 (1955).
The warranty of seaworthiness is a species of liability without fault. Yet it does not mean that the shipowner is liable for injuries resulting from every sailor's brawl. . . . It does not mean that the owner is liable every time a seaman gets drunk and does damage to a member of the crew. it does not man that the owner is liable for injuries from all the fisticuffs on shipboard.
We see no reason to draw a line between the ship and the gear on one hand and the ship's personnel on the other. A seaman with a proclivity for assaulting people may, indeed, be a more deadly risk than a rope with a weak strand or a hull with a latent defect. The problem, as with many aspects of the law, is one of degree. Was the assault within the usual and customary standards of the calling? or was it a case of a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature? If it is the former, it is one of the risks of the sea that every crew takes. If the seaman has a savage and vicious nature, then the ship becomes a perilous place.Boudoin, 348 U.S., at 338-340, 75 S.Ct., at 384-385. (Citations and internal quotation marks omitted.)
DISCUSSION
In opposition to defendants' motions for summary judgment, it is contended that the roustabout plaintiff was assaulted by his superior, driller Carter, for the benefit of the vessel's business. Plaintiff agrees that he is not trying to show that Carter was a savage or vicious person who was trying to injury him. But, he asserts that he was injured by negligent horseplay perpetrated by "a couple of buffoons," and that defendants could have prevented his injuries by establishing and enforcing a rule against horseplay.
Jones Act
The Jones Act provides that a seaman may recover from his employer' for injuries resulting from the employer's negligence. Noble was not plaintiff's employer; so Noble may not be liable to him under the Jones Act.
Regarding the employer Pride, the first issue is whether the actions of Carter were "committed by the plaintiff's superior for the benefit of the ship's business." The cases cited in the section of Benedict on Admiralty referred to by the Fifth Circuit in Miles are instructive as to how a superior may assault an inferior for the benefit of the ship's business. In all those cases, a superior struck a seaman in order to make the seaman get to work or to work faster on the ship's business. Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440 (1930); Alpha Steamship Corp. v. Cain, 281 U.S. 642, 50 S.Ct. 443 (1930); Nelson v. American-West African Line, Inc., 86 F.2d 730 (CA2 1937).
In the instant matter, Carter's actions toward plaintiff were not related to the work of Carter, of plaintiff or of the rig. They were only private horseplay. Carter's actions were not "committed . . . for the benefit of the ship's business."
The final Jones Act issue is whether Pride "failed to prevent the assault when it was foreseeable." It is not disputed that Noble, through its toolpusher, knew of Carter's propensity for horseplay. plaintiff has presented no evidence that anyone at Pride had that knowledge; but even if it did, neither Noble nor pride could have foreseen that the horseplay would put anyone at risk of injury.
In Miles, supra, the court observed, "A seaman in a Jones Act case has only a featherweight burden of proof; he need only prove slight negligence, which can be accomplished with very little evidence." 882 F.2d, at 984. (Internal quotation marks and citation omitted.) Miles and another case which mentions "horseplay" on a vessel are instructive regarding the evidence of foreseeability which is necessary to avoid summary judgment.
In Miles, one drunken seaman stabbed another to death. The court found that "the slight burden of proof" regarding negligence was satisfied by plaintiff's evidence that an officer knew the killer to be "hostile, argumentative, and `on something'" prior to the killing; and knew him to be "belligerent and argumentative when he drank yet allowed him to do so;" and allowed drinking aboard the vessel despite rules against it. 882 F.2d, at 984.
In Stankiewicz v. United Fruit Steamship Corporation, 229 F.2d 580 (CA2 1956), one seaman, who had been drinking, swung his jacket at another and injured his eye. The court found that allegations of the employer's negligence should have gone to a jury, because "There was evidence from which the jury might have found that the ship's officers were lax in enforcing the rule against bringing liquor aboard ship;" and "There was also evidence which would support a jury finding that (the] attack was an act of viciousness induced by intoxication rather than ordinary horseplay in response to a prank." 229 F.2d, at 581-582. (Emphasis added.)
In this action, Carter was not hostile, argumentative, belligerent or vicious; and did not intentionally attack plaintiff. There is no evidence that anyone on the rig previously had been injured by or complained of the horseplay. Nothing in Carter's acts before the incident at issue would have caused Noble or Pride to foresee that he would injure plaintiff.
Furthermore, insofar as plaintiff was aware, Carter had never before used the "wrestling move" which caused plaintiff's injury; and plaintiff contends that his injury was caused by the negligence of Carter. Plaintiff has cited no authority, and the Court has found none, for the proposition that an employer should foresee and attempt to prevent a unique and negligent act by an employee. While Noble and pride could foresee "ordinary horseplay," Stankiewicz, there is no evidence from which it could be found that they could foresee plaintiff's injuries or the act which caused them.
Plaintiff contends that Carter's act "could have been prevented by a rule against horseplay;" and "Anyone familiar with the drilling industry knows that horseplay is supposed to be forbidden. . . . " Plaintiff has presented no evidence of such an industry-wide rule or that defendants had such a rule.
Memorandum at 2.
Memorandum at 4.
As to the Jones Act claims, neither defendant may be found liable. Noble was not plaintiff's employer; plaintiff was not attacked by his superior in furtherance of the rig's business; and the injurious "assault" could not have been foreseen.
UNSEAWORTHINESS
The Fifth Circuit has found that the intemperate actions of a seaman rendered a vessel unseaworthy in circumstances involving deliberate and unprovoked attacks, not horseplay. In Clevenger v. Star Fish Oyster Company, 325 F.2d 397 (CA5 1963), the mate of a vessel, without warning, stabbed a seaman in the back with an ice chisel, a four-foot long steel bar with a sharp point. In Claborn v. Star Fish Oyster Company, 578 F.2d 983 (CA5 1978), a seaman, without warning, attacked another with a ten-inch knife and killed him; "the assault was unprovoked, sudden, extraordinarily savage, and fatal." 578 F.2d, at 987. Miles, supra, also involved a fatal knife attack. Therein, the court stated, "The evidence of the nature of the assault here leaves no doubt that [the attacker] had an extraordinarily violent disposition. He did not merely exchange blows with [the victim] . . . .[The attacker] inflicted 62 knife wounds on [him] . . . ." 882 F.2d, at 982.
The Fifth Circuit has found that violent acts of seamen did not render a vessel unseaworthy in Holmes v. Mississippi Shipping Company, 301 F.2d 474 (CA5 1962) (seaman became deranged and amputated his own hand and sued the vessel owner alleging unseaworthiness because of his own conduct); Robinson v. S.S. Atlantic Starling, 369 F.2d 69 (CA5 1966) (ordinarily peaceful seaman finally responded to Captain's mistreatment of the crew, and particular of that seaman, by stabbing the Captain in the abdomen); and McConville, supra (plaintiff seaman started a fight in which he was injured).
The undisputed facts in the instant action show only nonhostile horseplay which resulted in injury, not even a "sailor's brawl" or normal "fisticuffs," which will not render a ship unseaworthy, Boudoin, and certainly not an unprovoked, unexpected and vicious attack intended to cause severe harm, as in Clevenger, Claborn and Miles. Plaintiff has shown only that Carter normally engaged in non-injurious horseplay, and that on one occasion he accidentally injured one person. Plaintiff has not shown that the rig was unseaworthy.
CONCLUSION
The Court has examined all the submitted evidence in the light most favorable to plaintiff. Anderson, supra. On the basis of that evidence, neither Pride nor Noble can be found to be liable to plaintiff for his injuries. Accordingly,
IT IS ORDERED that the Clerk of court is to prepare a judgment in favor of defendants, Noble Drilling Corporation and Pride International, Inc., and against plaintiff, Christopher Reynolds, dismissing plaintiff's complaint with prejudice.