Opinion
CIVIL ACTION No. 01-3137, SECTION "L" (5)
December 2, 2002
ORDER REASONS
Before the Court is a motion for summary judgment filed by Defendant, Captain Harold Dan Sheets. For the following reasons, the motion for summary judgment is GRANTED.
I. BACKGROUND
This case arises out of an allision on the Mississippi River at the IMTT St. Rose Facility on March 2, 2002 when the vessel the M/V PAUL GILMORE was attempting to dock. Defendant Captain Sheets was the compulsory pilot on board the M/V PAUL GILMORE and was attempting to pilot the vessel into Dock #8 at the IMTT facility. Dock #8 is an inside dock which is bounded on both sides by other docks. While attempting to dock, the M/V PAUL GILMORE allided with the M/V ROSS PICKETT, an inland towboat docked at the facility. Plaintiff was a relief captain aboard the M/V Ross Pickett and claims that as a result of the impact, he fell while on the vessel and sustained injuries. In his complaint, the Plaintiff asserts negligence of the Defendant Captain Sheets, among others.
II. LAW AND ANALYSIS
Summary judgment will be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits show that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. If the party moving for summary judgment demonstrates the absence of a genuine issue of material fact "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995). "[A] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To oppose a motion for summary judgment, the non-movant cannot rest on mere allegations or denials but must set forth specific facts showing that there is a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986). If the evidence leads to only one reasonable conclusion, summary judgment is proper. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
In this district, Local Rule 56.2 sets forth requirements for an opposition to a summary judgement. Specifically, the rule provides the following:
Each copy of papers opposing a motion for summary judgment shall include a separate, short, concise statement of material facts as to which there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted, for purposes of the motion, unless controverted as requireby this rule.
Plaintiff's opposition to the Defendant's motion for summary judgment did not contain a separate short statement of contested material facts as required by local rule and, therefore, the Defendant's statement of uncontested material facts are deemed admitted for purposes of this motion.
The uncontested facts necessary to decide this motion for summary judgment are as follows. The PAUL GILMORE was assisted by one tug, the LOUISIANA, and attempting to dock in Dock #8 at the IMTT facility. The vessel's captain and Captain Sheets discussed proceeding with only one tug and agreed that it was safe under the circumstances. After the PAUL GILMORE had been positioned in the proper angle to enter the Dock #8, the wind increased from approximately three miles an hour to between fifteen and twenty miles per hour. The wind increased from the southwest, blowing toward the ROSS PICKETT. The cause of the accident was the extraordinary and unexpected increase in wind speed, which moved the PAUL GILMORE out of the proper position to enter Dock #8 and pushed the vessel toward the ROSS PICKETT. Captain Sheet's actions after the allision limited the potential damage and personal injuries to both the ROSS PICKET, her crew and linesmen.
Defendant argues in his motion for summary judgment that the Plaintiff cannot recover against him as a matter of law because he failed to plead gross negligence as required to maintain an action for negligence against a pilot and, nevertheless, the facts do not support a finding of gross negligence. The Court agrees.
First, Plaintiff is required under Louisiana law to make a specific allegation of gross negligence against the Defendant as a river boat pilot. Louisiana Revised Statute 34:1055 provides that "Any party seeking-to hold a pilot.., liable for damage or loss occasioned by the pilot's errors, omissions, fault or neglect, shall be required to prove by clear and convincing evidence that the damages arose from the pilot's gross negligence or willful misconduct." La. R.S. 34:1055 (West 2002). Only two reported cases analyze this statute and both hold that a plaintiff cannot maintain a cause of action against a pilot for negligent acts "absent an allegation of either gross negligence or willful misconduct against him." Busby v. Lasco Towing, Inc., No. 94-1958, 1994 WL 532030, at *1 (E.D. La. Sept. 29, 1994); see also Transit Enter., LTD. v. Bisso Towboat Co., No. 86-2965, 1988 WL 2689, at *1 (E.D. La. Jan. 14, 1988). Although the Busby and Transit courts allowed the Plaintiff to amend his complaint, ' the Court finds that allowing the Plaintiff to amend his complaint in this case is not proper because the trial date is only three weeks away and the deadline to file amendments has long since passed. Therefore, because Plaintiff did not allege gross negligence in his complaint, he cannot recover as a matter of law against the Defendant Captain Sheets.
The docket sheet in the Busby case indicates that at the time the Court allowed the plaintiff to amend his pleadings, a preliminary conference had not been held yet and no deadlines or trial dates had been set.
Amendments to pleadings were due no later than April 19, 2002.
However, even if the Plaintiff had alleged gross negligence, the result would not change. The facts of this case simply do not meet the strict standard of gross negligence, which has been described as "willful, wanton and reckless conduct that falls between intent to do wrong and ordinary negligence." Houston Exploration Co. v. Halliburton Energy Serv., Inc., 269 F.3d 528, 531 (5th Cir. 2001). Considering the Defendant's uncontested facts as admitted for purposes of the summary judgment motion, and the fact that Plaintiff has failed to assert facts that establish the gross negligence of the Defendant, the Defendant Captain Sheets is entitled to judgment as a matter of law. of course, the fact that Captain Sheets was not grossly negligent does not exclude a finding of negligence for which the vessel may be liable in rem. The two theories are separate and distinct.
II. CONCLUSION
For the foregoing reasons, the motion for summary judgment filed by Defendant Captain Harold Dan Sheets is GRANTED. Accordingly, Plaintiff's claims against Defendant Captain Harold Dan Sheets are DISMISSED WITH PREJUDICE.