Summary
denying summary judgment because the ship's “buckling, bowing, and cracking of the ceiling” and plaintiff's “fears that the roof would cave in create a question of material fact concerning whether [plaintiff] faced a threat of imminent physical impact”
Summary of this case from In re Magnolia Fleet, LLCOpinion
CIVIL ACTION NO: 99-3008 SECTION: "R"(5).
December 12, 2000.
ORDER AND REASONS
Before the Court is a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 by defendants Bouchard Transportation Co., Inc., B. No. 195 Corp., J. George Betz Corp., and Bouchard Coastwise Management Corp. Defendants seek to dismiss plaintiff Donald Pullman's claims, arguing that, as a matter of law, he may not recover damages for a purely emotional injury under the Jones Act or General Maritime Law. After the Court held a hearing on November 21, 2000, the parties supplemented the record with four depositions. For the following reasons, the Court denies defendants' motion for summary judgment.
I. Background
The events culminating in this lawsuit began on October 1, 1996, when the M/V J. GEORGE BETZ, with the tank barge B. No. 195 in tow, departed Houston, Texas, bound for Garyville, Louisiana. The expected voyage called for the tug and tow to arrive at the Southwest Pass Sea Buoy two days later.
The crew aboard the tank barge consisted of plaintiff Donald Pullman, the barge captain, and Joseph Coerts, his subordinate tankerman. As captain, Pullman's duties included maintaining the barge, running the various equipment aboard the barge, and securing the barge against the elements. His duties did not include the safe navigation of the tow; that responsibility was entrusted to the tug captain, Jeff Barnhart. The tug captain was also entrusted with the discretion to delay or alter a voyage because of inclement weather.
Before this voyage, Pullman and Barnhart discussed a tropical storm brewing in the Gulf of Mexico. Although Pullman expressed concerns, Barnhart asserted he could "beat" the storm and elected to depart as scheduled. (Pullman Mar. 9, 1998 Dep. at 56.) As the tug and tow transited the Gulf of Mexico, the weather deteriorated and prevented the M/V J. GEORGE BETZ from entering the Southwest Pass when she arrived in the early morning hours of October 4, 1996. Awakening to rough weather the following morning, Pullman decided to secure the hatches and generally prepare the barge for more bad weather, but he kept the aft ventilation hatch open to keep the air conditioning running. While he and Coerts were securing the barge, Pullman noticed the "tug getting further and further away." ( Id. at 71.) The tug radioed him that the tow cable was broken. By this time the tug and tow were battling fifteen to twenty foot seas and thirty knot winds. Instead of rigging another bowline as Pullman recommended, Barnhart elected to rig an emergency towing hawser, which had been stowed at the stern of the barge. The resulting towing configuration turned the boxy stern of the barge into the seas, causing the barge to "take a pounding." (Pl.'s Mem. Opp'n Mot. Summ. J. at 2.) After the tug began towing the barge by the stern, Pullman told Coerts to secure the aft hatch. While attempting to do so, Coerts was swept into a deck locker by a boarding sea and was injured.
As the storm continued to rage, the situation aboard the barge became untenable. The barge lost its generators; water entered both the port and starboard houses; the electrical outlets began to spark; the life rafts blew away; the VHF radio ceased to operate; and the ceiling of the living quarters buckled under the crashing seas. Pullman said that the "roof of the living quarters looked like they were about to cave in as the seas hit it" and "the whole ceiling kept bowing in on us." (Pullman Mar. 9, 1998 Dep. at 137, 167. See also Id., Ex. 2 at 3; Hanawalt Dep. at 13.) Fearing for their lives, Pullman pleaded with Barnhart a dozen times to call the Coast Guard to evacuate them. Pullman says that he does not believe that Barnhart did so. ( Id. at 130.) Eventually, a Coast Guard helicopter did arrive, but when it attempted to lift Coerts in a basket amid thirty foot seas, seventy-five knot wind gusts, and driving rain, he fell fifteen feet to the deck when the barge suddenly plunged, further injuring him. Pullman saw Coerts land on his back and helped him back into the basket. Both Coerts and Pullman were ultimately evacuated, but by that time the emergency towing hawser had broken, and the barge had been adrift for over half an hour.
Although Coerts suffered physical injuries, Pullman did not. Pullman claims, however, that, as a consequence of the trauma he experienced during this voyage, he developed post-traumatic stress disorder with a phobia of working over water. He claims that defendants were negligent in a number of ways, including by towing the barge from the stern, failing to have proper equipment, towing the barge into a storm, and failing to timely rescue the crew.
Defendants now move for summary judgment. Although defendants apparently do not dispute plaintiff's diagnosis with post-traumatic stress disorder, they argue that plaintiff's claim is nothing more than a claim for emotional injury from a storm at sea and that as a matter of law plaintiff may not recover damages.
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. See FED . R. CIV. P. 56(c). See also Celotex Corp. V. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). Accordingly, a court must be satisfied that no reasonable trier of fact could find for the nonmoving party. In other words, "if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden." Beck v. Texas State Bd. of Dental Exam'rs, 204 F.3d 629, 633 (5th Cir. 2000).
Initially, the moving party bears the burden of establishing that there are no genuine issues of material fact. 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 2554; see also 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 exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential on which it bears the burden of proof at trial. See Id. at 322, 106 S.Ct. at 2552. 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; Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999).
B. Emotional Injury Absent Physical Contact
Defendants initially moved to dismiss plaintiff's claims, arguing that under Fifth Circuit jurisprudence Pullman may not recover damages for an emotional injury in the absence of any physical impact. Plaintiff countered that defendants failed to cite the controlling case law, which holds that physical injury is not required for recovery. Relying upon the analysis of Consolidated Rail Corp. v. Gottshall in In re Clearsky Shipping Corp., plaintiff argued that the "zone of danger" test permits recovery for emotional injury not only by plaintiffs who sustain physical impact, but also by those placed in immediate risk of harm. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547-48, 554-55, 114 S.Ct. 2396, 2406, 2410-11 (1994) ; In re Clearsky Shipping Corp., 1998 WL 560347, at *2 (E.D. La. Aug. 28, 1998).
As plaintiff noted, the United States Supreme Court adopted a zone of danger test for recovery of emotional damages for the purposes of the Federal Employees Liability Act. Gottshall, 512 U.S. at 554-55, 114 S.Ct. at 2410. It found that "a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself." Id. at 555, 114 S.Ct. at 2410-11. The Supreme Court further observed that "employees thus will be able to recover for injuries — physical and emotional — caused by the negligent conduct of their employers that threatens them imminently with physical impact." Id., 114 S.Ct. at 2411. Although the Fifth Circuit has not discussed the impact of Gottshall on its Jones Act jurisprudence, the Jones Act incorporates FELA by reference, and this Court has previously recognized the zone of danger rule as the appropriate test to analyze claims for emotional injury under the Jones Act. See 46 U.S.C. app. § 688. See also Frazier v. Callais Sons, Inc., 1999 WL 717666, at *6-7 (E.D. La. Sept. 13, 1999); Williams v. Treasure Chest Casino, L.L.C., 1998 WL 42586, at *7 (E.D. La. Feb. 3, 1998). Although defendants now concede that Gottshall applies, they posit that, even under the zone of danger test, plaintiff is not entitled to recovery.
As the zone of danger is the proper framework of analysis, the Court must determine whether Pullman was in the zone of danger. Pullman does not allege that he suffered any physical injury. Therefore, the inquiry is whether plaintiff was threatened with imminent physical impact. After reviewing the record, the Court finds that Pullman's statements concerning the "buckling," "bowing," and "cracking" of the ceiling of the living quarters and his fears that the roof would cave in on him create a question of material fact concerning whether Pullman faced a threat of imminent physical impact. (Pullman's Mar. 9, 1998 Dep. at 137, 167. See also Hanawalt Dep. at 13 ("He pictures the waves, the sea, the hitting, the roof and then he fears that it will cave in.").) Therefore, the Court denies defendants' motion for summary judgment.
The Court is of course mindful that inclement weather has always been a hazard of life at sea. But the Court is not holding that every seaman who feels fearful during a storm has a Jones Act claim. Rather, the Court reiterates that for plaintiffs such as Pullman to succeed they must allege and prove that their emotional injuries were caused by negligent conduct of their employers that threatened them with imminent physical impact.
III. Conclusion
For the foregoing reasons, the Court denies defendants Bouchard Transportation Co., Inc., B. No. 195 Corp., J. George Betz Corp., and Bouchard Coastwise Management Corp.'s motion for summary judgment.