Opinion
Civil Action Nos. 2:01cv804, 2:02cv622.
August 17, 2004
ORDER AND OPINION
This matter is before the court on defendant C.J. Langenfelder Son, Inc.'s motion for summary judgment. After examination of the briefs and record, this court determines oral argument is unnecessary because the facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. For the reasons set forth in greater detail below, the defendant's motion is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
As a threshold matter, the plaintiff only contests two facts on summary judgment. Under Local Rule 56(B), any fact not controverted by the opposing party is deemed admitted. Consequently, the following facts are undisputed, except where noted, and are adapted from the defendant's brief in support of its motion for summary judgment.
The tug KENT ISLAND was docked at Love Point, Maryland over Christmas and was to resume work on December 26, 2000. The tug was owned and operated by the defendant at that time. Willie Benjamin Lewis, the decedent, was to begin working as a tug captain for the defendant on December 26, 2000. Although he had been offered the job over the phone and had accepted, he had not yet filled out any official employment paperwork. Lewis was supposed to report for work between six and seven that morning but, for reasons unknown, arrived at approximately three in the morning, unannounced, instead.
The tug KENT ISLAND is a pusher-type tug, with a square bow and two pushing knees located on the bow. The knees are two large features, over six feet high, perpendicular to the deck with flat faces pointing out from the bow, which are used to push against other vessels. Located midway between them is the center bit, a chest-high feature that takes up most of the space between the knees. To the right side of the center bit is a step with a handle welded to the starboard pushing knee. On the port side of the center bit is an overhanging catwalk, parallel to the port pushing knee, that stands approximately five feet above the deck. The galley is set aft about eight to ten feet from the bow, and a galley door is on the center line with the center bit, with a window. A bulwark encircles the tug deck and there is a fender or bumper that encircles the vessel at the water line.
The step and handle are the primary means of ingress and egress from the vessel. When getting on the tug, it is common to step from the dock or bulkhead onto the bumper and either step over the bulwark or sit on it and swing one's legs over it. If the bulwark and the bulkhead or dock are roughly level, then it is simply a matter of stepping from one to the other. The handle can be grabbed to assist this process. Egress is accomplished similarly.
As noted, Lewis boarded the vessel at approximately three in the morning and awakened one of the two crewmen onboard at the time, John Powell. Powell knew a relief captain was coming that day, but did not know who it was or when he would arrive. Upon awaking, Powell accompanied Lewis to the tug galley to make some coffee. The galley door faces the bow and the center bit. It has a window in it. The coffeemaker is located to the right side of the door, several feet back. From the coffeemaker, it is possible to see the tug's bow through the galley door window. When Powell began to make coffee, Lewis left to retrieve his gear from his truck. According to Powell, his attention was directed at making coffee; however, he raised his head just in time to see Lewis falling from the tug on the port side of the center bit.
Powell stated he ran out to the bow, expecting to see Lewis laying on the concrete bulkhead. Instead, he heard Lewis yell for help, moved around the port pushing knee and saw Lewis surface in the water on the port side of the tugboat. Powell claims he grabbed Lewis by the collar. Aside from yelling help once more, Lewis was silent and motionless in the water. Powell could not lift him out of the water, and claims he "ensured" that Lewis' head was above water and ran into the tugboat to get the other crew member onboard, William Bowen. Powell Decl. at Para. 13
Bowen arrived in less than a minute, but the two could not get Lewis out of the water. Bowen then ran onshore, called 911, and emergency personnel arrived within minutes. Lewis was pulled from the water and an attempt made to revive him on the tugboat. He was then taken off on a stretcher and later pronounced dead at the hospital. The coroner's report stated that he died of drowning.
At the time of this accident, the deck was free of any substances, such as ice or oil, that may have caused the decedent to slip, as well as any obstacles that might have caused him to trip. The bulwark and the bulkhead were roughly level, with the top of the bulwark positioned at most a foot above the bulkhead. The witnesses do dispute the exact distance the tug was from the shore.
The decedent's wife filed suit in state court, alleging a number of claims: negligence as covered by the Jones Act, unseaworthiness, and common law negligence as applied under admiralty law. The state court dismissed the plaintiff's Jones Act claim, finding that the decedent was not an employee of the defendant. As a result, the plaintiff's unseaworthiness claim is not viable either, because it too is premised on the duty of an employer to its employee. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 629 (1959). The plaintiff does not challenge the defendant's conclusion that the sole remaining claim is one for negligence. The plaintiff currently claims that there are three acts of negligence for which the defendant is liable.
The parties do not dispute the applicability of admiralty law in this case.
This matter was removed from state court, and following a complicated procedural history, this court retained jurisdiction of the case. The defendant filed its motion for summary judgment, and the court ordered the parties to address whether the plaintiff's expert report would be admissible at trial. The matter was referred to Magistrate Judge Miller. Following a hearing on that particular issue, Judge Miller excluded the plaintiff's expert report, which was the primary evidence in favor of her claims. The court now addresses the merits of the case in the absence of this report.
II. ANALYSIS
A. Standard on Summary Judgment
Summary judgment is appropriate when it is apparent from the entire record, viewed in the light most favorable to the non-moving party, that there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P 56(c); Clark v. Alexander, 85 F.3d 146, 150 (4th Cir. 1996); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The court may properly deny summary judgment when there is sufficient evidence favoring the nonmoving party that would allow a reasonable jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A properly supported motion for summary judgment, however, may not be defeated by "the mere existence of some alleged factual dispute between the parties." Id. at 247-48.
Entry of summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "A scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff."Anderson, 477 U.S. at 244. Accordingly, the court must grant summary judgment where "the evidence is so one-sided that one party must prevail as a matter of law." Id. at 251-52; see also Harleysville Mut. Ins. Co. v. Packer, 60 F.3d 1116, 1120 (4th Cir. 1995) (quoting Anderson).
In the instant case, the defendant's motion was accompanied by sworn affidavits and supporting documentary evidence. When a motion for summary judgment is made and supported in this manner, the "adverse party may not rest upon the mere allegations or denials" of his pleading, but must respond with affidavits or some other proper evidence, and "set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e). As noted, Local Rule 56 provides that a response to a motion for summary judgment must set forth the specific facts that the non-movant believes are in dispute, with support from the record. The court has assumed the facts not so controverted in the instant matter are admitted.
B. The Plaintiff's Claims
As noted, the only currently viable claim is what the defendant styles a "Garris" wrongful-death claim, evoking this court's decision in Garris v. Norfolk Shipbuilding. The plaintiff does not dispute this legal conclusion. Accordingly, the law to apply is traditional maritime negligence law.
To succeed on her claim, the plaintiff would have to establish the standard elements of any negligence claim: that the defendant owed the decedent a duty, that this duty was breached, that the breach was the proximate or legal cause of the decedent's death, and that the plaintiff suffered legally cognizable damages as a result. See, e.g., In re Cooper/T. Smith, 929 F.2d 1073 (5th Cir. 1991); Naglieri v. Bay, 93 F. Supp. 2d. 170 (D. Ct. 1999); SeaRiver Maritime, Inc. v. Industrial Medical Services, 983 F. Supp. 1287 (N.D. Cal. 1997).
In the instant case, it appears that the plaintiff is currently asserting three tort claims. First, she argues the defendant was negligent in failing to provide a gangway for ingress and egress; second, that the defendant was negligent for failing to train the decedent; and third, that the defendant was negligent or reckless in its employees' rescue attempt of the decedent. The plaintiff's primary witness is her expert, Captain Mitchell S. Stoller, who provided a report summarizing his opinions on the three issues at hand. See Pl. Ex. G (Expert Report). As stated above, in an earlier order, the court noted that the report was deficient in a number of respects. As a result, the court referred the case to Magistrate Judge Miller to determine whether this expert report should be excluded. Judge Miller agreed that the report suffered from a number of fatal flaws and excluded the report. While attaching no weight to the expert's opinion, the court will assume that it is generally in accord with the plaintiff's theory of what happened and what the plaintiff would seek to prove through other evidence at trial.
The plaintiff raises two factual disputes: 1) whether and to what extent there was a gap between the tug and the dock; and 2) the extent to which the area was lit that night. The court does not find that the latter issue is in dispute. All the witnesses generally agree as to the nature of the lighting that night. The plaintiff contends that the area was poorly lit, relying on a deposition statement from Morris Jones, a corporal in the local sheriff's department. Jones stated that the bow area of the tug was dark. See Pl. Ex. E. at 28 (Jones Dep.). He stated further, however, that it was not too dark for him to see what he was doing and that he did not have any trouble getting on and off the boat. See id. at 40-41.
As the defendant points out, not a single witness testified that they could not see well enough to get on and off the boat without trouble, including Jones. Jones got on and off the boat five or six times without difficulty. Consequently, although it was certainly dark, the court finds that all the evidence indicates it was lit well enough to see and to get on and off the vessel because no evidence exists to the contrary. In other words, there is no evidence that the area was too dark, and the plaintiff's expert does not rely on any lack of lighting in giving his opinion that there was a duty to provide a gangway. In fact, the plaintiff's own expert states that the area was well lit. Expert Report at 2. The only possible factual issue in dispute then is the distance of the tugboat from the shore. The court will now assess the plaintiff's three claims.
C. Negligent Failure to Provide Safe Egress
a. Plaintiff's Claim
The plaintiff's primary claim is her contention that the defendant had a duty to provide a gangway under the circumstances present in this case. This claim rests on a factual dispute regarding the distance of the tugboat from the shore and on the expert's opinion that the circumstances necessitated a gangway. While the plaintiff also claims the sufficiency of the lighting around the vessel is also at issue, the court has already concluded there is no material dispute as to this fact.
b. Defendant's Arguments
The defendant first argues that it owed Lewis no legal duty to provide a gangway. This conclusion derives from the following facts: 1) Lewis fell while attempting to step over a gap between the port side of the bow and the bulkhead; 2) that gap was open and obvious; 3) Lewis was a business invitee or guest; 4) therefore under Fourth Circuit case law, there is no duty to warn such a person of an open and obvious danger. The defendant relies on Marin v. Myers, 665 F.2d 57, 58 (4th Cir. 1981), cert. denied, 456 U.S. 906 (1982) for this proposition. The defendant also claims that it had no duty to correct any of the open and obvious conditions that might have been present, like the gap between the tug and the shore.
Although arguing that it owed no duty to the decedent with regard to safe egress, the defendant alternatively argues that there was (1) no negligence on its part, (2) no proof of negligence, and (3) no proof that any negligence contributed to the decedent's accident. The defendant contends that any duty it may have had in this instance was satisfied by the fact that it provided a step and handle.
The defendant's second argument is that the plaintiff has not demonstrated, and cannot prove, "how and why" causation. The defendant argues that the plaintiff cannot demonstrate that the failure to provide a gangway contributed to Lewis' death. While the defendant also argues that there are equally viable alternative theories of causation to the plaintiff's claim, the court does not believe this argument is properly made at the summary judgment stage. Assuming a sufficiency of evidence is present, the court must resolve the dispute between competing arguments in favor of the plaintiff. Consequently, the court must simply decide whether the plaintiff has put forth enough evidence regarding her characterization of the events that would enable the court to allow the matter to go to a jury. In other words, the court must decide if there is more than a mere scintilla of evidence establishing each element of the plaintiff's claim and whether the evidence is of a type that would enable a reasonable jury to find in favor of the plaintiff.
c. Open and Obvious Doctrine
As the court has mentioned, the defendant contends that there was no duty to warn the decedent of an open and obvious danger, the gap between the tugboat and the shore; therefore, there was no breach of any duty towards the decedent that would give rise to a claim for negligence. The defendant is correct that any owed to the decedent did not require the shipowner or its employees to specifically warn him about any open and obvious dangers. Marin v. Myers, 665 F.2d 57, 58 (4th Cir. 1981), cert. denied, 456 U.S. 906 (1982); Diaz v. United States, 655 F. Supp. 411 (E.D. Va. 1987) (following Marin). However, it is also clear that the defendant owed the decedent a general duty of reasonable care. The court concludes this duty included a requirement that the defendant maintain a safe means of ingress and egress. If the nature of the gap between the vessel and the shore was a dangerous condition, it was created by the defendant through its employees, and the defendant had a duty to correct this condition, regardless of whether it was open and obvious. The decedent's decision to proceed despite this condition may have been contributorily negligent, but this conclusion is not a per se bar to recovery under the law of admiralty.
d. Duty to Maintain Safe Egress
Courts have considered it negligent simply to encounter an obvious danger when there were other alternatives, but in the absence of reasonable alternatives, the victim's "choice" to encounter a danger should not be considered negligent per se. This argument appears to be borne out by case law and the law of real property.
Several courts have explicitly stated that a shipowner has a duty to establish and maintain a reasonably safe means of ingress and egress. Tittle v. Aldacosta, 544 F.2d 752 (5th Cir. 1977); Tullis v. Fidelity and Casualty Co., 397 F.2d 22, 23 (5th Cir. 1968); Hardesty v. Rossi 1995 WL 688416, *5 (D. Md. 1995) (unpublished); see also Thomas J. Schoenbaum, Admiralty and Maritime Law, § 5-5, at 199 (4th ed. 2004) (citingTittle). This Fifth Circuit case law is binding on the Eleventh Circuit as well. See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981). The court also notes that the law of the Fifth Circuit is significant non-binding authority in the law of admiralty given that circuit court's extensive experience in this area of federal law.
In Arthur v. Flota Mercante Gran Centro Americana S.A., 487 F.2d 561 (5th Cir. 1973), the defendant argued that it owed no duty to protect the plaintiff from the risk of harm created by a dangerous condition that the plaintiff knew or should have known of because he was an experienced seaman. Importantly, much like the instant case, the seaman was not an employee. The circuit court noted that the "trial court properly considered this contention as relating to plaintiff's negligence in boarding the vessel in the condition in which it existed. Comparative negligence is the rule to be followed; the negligence of the plaintiff, regardless of how gross, does not preclude recovery, but only mitigates damages." Id. at 563. This holding comports with the court's conclusion that there is an independent duty to maintain safe ingress and egress regardless of the lack of a duty to warn of the unsafe condition, if open and obvious. The tort law of real property supports this characterization.
The Restatement (Second) of Torts states: "A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts, § 343A(1). A comment to the Restatement explains:
There are . . . cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Restatement (Second) of Torts, §§ 343A, cmt. f.
Illustration 5 to this section of the Restatement is almost exactly on point: "A owns an office building, in which he rents an office for business purposes to B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C."
e. The Plaintiff's Expert Report
The plaintiff recognizes that the defendant had a duty to provide safe means for the decedent to exit the tugboat. The plaintiff contends that this duty was breached because no gangway or its equivalent was in place on the date in question. The plaintiff premises this contention on her expert's analysis of the evidence and his opinion on the issue. The Expert Report relied on certain regulations not applicable to the instant case, and apparently, his experience working on large ships and the facts of this case, among other things.
In the absence of this Expert Report, it must be reasonable for a jury to conclude, based on the evidence before it and its own experiences, that the defendant breached a duty to provide safe egress by either not providing a gangway or by not ensuring that the tug was tied snugly to the shore, obviating the need for a gangway. The jury must then conclude that any such breach caused, in part, Lewis' death.
The plaintiff premises her conclusion that the step taken was too great to be safely accomplished without a gangway on the fact that some witness testimony indicates that the step may have been as long as two feet. There is also apparently an OSHA accident report, not presented to the court as an exhibit to the briefs, that apparently stated that the tug's mooring lines were slack, reinforcing the conclusion that there was a gap between the boat and the shore.
The plaintiff must contend that it is self-evident that a distance of up to two feet from shore requires the presence of a gangway or that the vessel be moored closer to shore. A jury is not competent to render such a conclusion based on its members' personal experiences. They are, perhaps, more able to determine whether a crack in a sidewalk should have been remedied and cause an accident rather than determining how far a tug can safely be from shore without employing a gangway. Perhaps, if there was some debate among the direct witnesses regarding the existence of a safety issue, a jury would be reasonable in resolving such a dispute in favor of the plaintiff. However, in the instant case, the uniform testimony from the witnesses on the tug at the time in question was that the distance from the tug to shore presented no difficulty to the police, rescue workers, or others getting on and off the boat.
Witnesses gave a variety of opinions on the distance between ship and shore: "one to two feet," or "a foot, foot and a half," a "long step or a short jump," "eighteen to twenty-four inches", or an "extended step." Regardless of the actual distance, not a single witness testified that they had trouble getting on and off the vessel that night, and not a single witness testified that the distance of the tug from the shore was unreasonably far or unusual. Moreover, the plaintiff has no evidence to support the contention that experienced crewmen of a tugboat cannot make such a step under the conditions present in this case, and it is clear that the decedent was far more experienced in traversing such gaps than the individuals on the scene following the accident.
Testimony also indicated that the tug may have been touching the bulkhead at the starboard side, where the handle and step were located.
As a result of this evidence, there can be no dispute as to whether the distance was too difficult to surmount safely. A jury's conclusion to the contrary would be too speculative to permit. In the present case, where the distance was not unarguably great, where no witness opined that it was too wide to be traversed safely, and where the activity is not one within a layman's common experience, no reasonable jury could find in favor of the plaintiff on this particular issue.
D. Negligent Failure to Train
The plaintiff's expert also argued that the defendant should have provided the decedent with safety training, his employee handbook, and a new employee orientation. The expert concluded that the defendant's "improper sign-on procedures unnecessarily exposed Mr. Lewis to safety hazards that increased his risk of injury." Expert Report at 7. The defendant argues that there could be no duty to train the decedent given the fact that the decedent arrived at three in the morning, several hours earlier than expected. William Moore, the defendant's operations manager was going to meet the decedent between six and seven to sign him up so he could work but the decedent arrived early.
As a result of the exclusion of the expert report, there is simply nothing from which a jury could reasonably infer that the defendant had a duty to train the decedent upon his arrival in the early morning. More importantly, assuming such a duty existed, there would be no basis whatsoever to conclude that this failure to train caused the accident. Even the expert report does does not opine that the alleged breach of duty caused, even in part, Lewis' death. It states only that it exposed him to increased risk. Consequently, assuming the Expert Report was admissible, any conclusion as to causation based on this opinion, the only "evidence" in favor of the plaintiff's claim, would be purely speculative. See Coats Clark, Inc. v. Gay, 755 F.2d 1506, 1510 (11th Cir.), cert. denied, 474 U.S. 903 (1985) (holding that expert report opining only as to "potential cause" of accident was speculative and not probative).
Finally, it is clear that the decedent was an experiencedcaptain of tugboats who had spent years on all manner of tugs. The plaintiff has provided no reason why the defendant or its employees had an obligation to train such an experienced individual in the manner in which to properly board and leave the boat.
E. Negligent Rescue
Finally, the expert opined that crewmen Powell and Bowen failed to perform a proper man overboard rescue, by (1) Powell's failure to sound a general alarm when he saw the decedent fall, and (2) failing to deploy a life ring immediately to keep the decedent afloat. The defendant argues that there is no evidence demonstrating the decedent drowned after Powell began lending assistance. The defendant relies on Powell's declaration that he believed Lewis had fallen onto dry land, thereby justifying his failure to sound a general alarm and have a life ring ready to deploy. He also stated that he grabbed Lewis and ensured that Lewis' head was above water before alerting Bowen of the accident. Ultimately, the defendant relies on its conclusion that there is no proof Lewis' head went under after Powell arrived to assist him. Additionally, the defendant states that any claim the plaintiff may be asserting for negligent rescue should be ignored by the court because it was not pled in the plaintiff's motion for judgment, and this theory was not supplied when requested via an interrogatory.
Assuming that the plaintiff has not procedurally defaulted on this claim, the court concludes that it fails as a matter of law. For liability to attach as the result of a rescue attempt, the rescuer must act wantonly and recklessly in attempting the rescue. Furka v. Great Lakes Dredge and Dock Co. 824 F.2d 330, 331-32 (4th Cir. 1987). "The wanton and reckless standard aims to encourage the impulse to assist. The law will not deter rescuers by charging them `with the consequences of errors of judgment resulting from the excitment [sic] and confusion of the moment.'" Id. at 332 (quoting Corbin v. Philadelphia, 195 Pa. 461, 45 A. 1070, 1074 (1900)).
In this case, Powell stated that he ran out from the galley believing Lewis had fallen on the bulkhead. Discovering Lewis was actually in the water, he confirmed that Lewis' head was above water before then enlisting the aid of Bowen. The court concludes that there was nothing reckless about this initial action. First, a reasonable jury would not conclude that it was unreasonable for Powell to believe Lewis was not in the water, given the proximity of the tug to the bulkhead and the location of his fall. It follows, then, that Powell was not unreasonable in failing to deploy a life ring when he ran to the bow and found Lewis in the water because he did not expect him to be in the water. After discovering Lewis in the water, he then got Bowen. Under the circumstances, it may be that Powell could have taken a more appropriate course of action, but it is certainly not the case that the choices he made constitute reckless conduct.
There is simply no other evidence regarding Powell's alleged conduct other than his contention that he saw the decedent in the water and went to get help. There is no evidence to support an inference that this conduct was reckless or even negligent, as the plaintiff's expert has only concluded that Powell should have sounded the general alarm and brought a life ring with him when he ran to the decedent's aid. As the court has noted, given Powell's reasonable belief as to the decedent's location, there is nothing to support the conclusion that his actions were unreasonable. Furthermore, as the defendant points out, there is no evidence from the record, nor any accusation made, that Powell's conduct worsened Lewis' position. Consequently, causation is lacking regarding that aspect of the claim. Ultimately, in the absence of the expert's opinion that it was reckless to go to the decedent's aid without a life ring and without having sounded the general alarm, it would be mere speculation for a jury to infer from the facts before the court that Powell had breached a duty to the decedent in a reckless manner.
III. CONCLUSION
With the exclusion of the plaintiff's Expert Report and the opinions contained therein, the court has no evidence before it that would enable a reasonable jury to conclude that the defendant was negligent or reckless or that such alleged conduct caused Willie Lewis' death. Accordingly, for the reasons stated above, the court GRANTS defendant's motion for summary judgment.
The Clerk is REQUESTED to send a copy of this Order to counsel of record.
It is so ORDERED.