Opinion
CIVIL ACTION NO. 00-0629 SECTION "R" (2)
July 17, 2001
ORDER AND REASONS
Before the Court is Defendant Lawson Lawson Towing Company, Inc.'s motion for summary judgment against Thomas E. Johnson, seeking to dismiss his negligence and unseaworthiness claims. For the following reasons, the Court grants defendant's motion for summary judgment.
I. Background
Plaintiff, Thomas Johnson, alleged that he was injured while employed as a chief relief engineer aboard the M/V HENRY B on August 19, 1999. Defendant, Lawson Lawson, is the employer of plaintiff and owner and operator of the M/V HENRY B.
On August 19, 1999, Johnson was asked by Captain Cavitt to install a 31 lb. stack fan motor atop a drum-like structure that was three to four feet high and sat on the deck of the M/V HENRY B. Johnson claims that he asked for assistance but that the Captain refused to give him a helper. Johnson testified that he experienced pain when he initially lifted the motor approximately 3 to 4 feet from a standing position. He then placed the motor on a rail level with the installation surface, and secured one bolt from a seated position. He installed the three other bolts from a standing position, once the motor had been secured by the first bolt. In the course of installing the motor, Johnson claims that he suffered serious and debilitating injuries to his cervical spine. He testified that it took him 45 minutes to an hour to install the motor. (Pl.'s Mot. Opp. Summ. J., at 9.)
Plaintiff filed suit alleging negligence under the Jones Act, 46 U.S.C. § 688, et seq. and unseaworthiness under the general maritime law. He seeks past and future medical expenses, past and future lost fringe benefits, past and future lost wages, income and earning capacity, and maintenance and care. The parties do not dispute that Johnson was a Jones Act seaman or that he did install the stack motor. Instead, the parties dispute whether Johnson's injuries arose from the installation of the motor, and whether Johnson asked for and was denied assistance in installing the motor.
Lawson now moves for summary judgment, seeking to dismiss plaintiff's complaint on the grounds that asking an engineer on a vessel to lift a 31 lb. motor approximately four feet does not establish negligence or unseaworthiness. Defendant admits that the parties dispute whether plaintiff ever asked for help. However, Lawson argues that even if plaintiff's version of the facts were true, and Johnson suffered injury while installing the stack motor by himself, Lawson's actions were not negligent and did not render the vessel unseaworthy as a matter of law.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. See Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993).
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exits. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996). In addition, an affidavit will not defeat summary judgment if it contains no more than a scintilla of evidence insufficient to create a genuine issue of fact. See Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
B. Jones Act Negligence
Under the Jones Act, a seaman's employer is liable for damages if the employer's negligence caused the seaman's injury. See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997). The employer is held to a standard of ordinary prudence under the circumstances. See id. at 336 (explaining that the circumstances include the employee's reliance on his employer to provide a safe working environment, the seaman's experience, training or education). The seaman is held to the standard of the reasonable seaman in like circumstances. See id. at 339. Here, the issue is whether Lawson exercised ordinary prudence under the circumstances in asking Johnson to install the motor without assistance.
Lawson argues that it is not negligent as a matter of law to require a seaman to lift a 31 lb. motor to a height of 3 to 4 feet without assistance. Lawson first contends that there was no negligence because the position of chief engineer falls into the category of heavy or medium work occupations as defined by the Department of Labor, and that since lifting 31 pounds falls squarely in both those categories, Lawson did not breach its duty. Secondly, Lawson points to case law for the proposition that it is not negligent as a matter of law to ask a seaman to lift an object weighing 31 lbs. See Thomas v. Diamond M Drilling Co., 569 F.2d 926, 927 (5th Cir. 1978) (finding no negligence when plaintiff injured his back when lifting and replacing a 60-100 lb. pump cap, when plaintiff had the opportunity to ask for assistance and failed to use safety devices); Vendetto v. Sonat Offshore Drilling Co., 725 So.2d 474, 479 (La. 1999) (finding no negligence when plaintiff sustained a ruptured disc after using the SAM method of lowering tools weighing 30-40 lbs. into a tunnel).
The Court finds that the facts here present no issue of negligence. For there to be an issue, the Court would have to accept the proposition that it takes two grown men to safely lift 30 to 35 lbs. to a height of 3 to 4 feet. This follows because plaintiff claims to have suffered pain when he was trying tolift the motor. After he lifted it, the work involved securing four bolts, one of which he installed from a seated position and the other three from a standing position with the motor at chest height. The bolt tightening did not involve any lifting. Plaintiff's own expert admitted that the amount of weight involved here is "common aboard vessels." (Pl.'s Mot. Opp. Summ. J., Expert Repot Eschete, at 4.) Further, he admits in his opinion that he is relying on "common sense" and not on any particular expertise to opine that the installation's height, positioning, and the fact that plaintiff had to "make the bolts fast by himself" contributed to his injury. (Pl.'s Mot. Opp. Summ. J., Expert Repot Eschete, at 3.) Plaintiff's expert adds nothing to the equation since his opinion is not based on any expertise. Moreover, once plaintiff lifted the motor to position, there is no evidence to indicate how plaintiff's having to secure the bolts by himself while seated or standing was dangerous or could cause him injury. If the motor had fallen and injured plaintiff, it might be different. In a somewhat similar case, Chisholm v. Sabine Towing Transportation Co., Inc., 679 F.2d 60, 61 (5th Cir. 1982), the Fifth Circuit held that plaintiff failed to establish either negligence or unseaworthiness when he showed that he was injured while lifting 40 to 50 pound pieces of iron pipe, which he carried from the engine room up to the main deck and jettisoned overboard. The Court likewise finds that plaintiff has failed to raise an issue of fact that defendant was negligent.
C. Unseaworthiness
As stated by the Fifth Circuit, the test for an unseaworthy condition is whether the vessel, equipment, or appurtenances were "reasonably fit for their intended uses. . . . The duty to provide a seaworthy vessel is absolute and the owner may not delegate the duty to anyone. Liability for an unseaworthy condition does not in any way depend upon negligence or fault or blame." Bommarito v. Penrod Drilling Corp., 929 F.2d 186, 189-90 (5th Cir. 1991). A vessel's unseaworthiness may arise from a variety of circumstances, including an unfit crew, an improper method of loading cargo, and an insufficient number of men assigned to perform a shipboard task. See Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517 (1971) (internal citations omitted).
Here, Johnson alleges that both the one-man method of installing the motor and the practice of installing the motor on the vessel rather than in the shipyard were unseaworthy practices. The Court has found that there is no issue of fact that an additional crew member was necessary to perform this installation safely. Further, Johnson admitted that installing the motor onboard the vessel was part of his job, although he wanted help to do it. The Court finds that there are no issues of fact suggesting that the vessel was unseaworthy by virtue of plaintiff's being instructed to install the motor in issue.
III. Conclusion
Accordingly, the Court grants defendant's motion for summary judgment.