IN CRUISE SHIP PASSENGER SLIP AND FALL ACTION, DEFENDANT CRUISE LINE ORDERED TO PRODUCE PHOTOGRAPHS TAKEN ROUGHLY 30 MINUTES AFTER THE FALL OVER CRUISE LINE’S WORK PRODUCT OBJECTION.
Teresita SORRELS and Joseph Sorrels, her husband, Plaintiffs, v. NCL (BAHAMAS) LTD., a Bermuda company d/b/a Norwegian Cruise Line, Defendant.
2013 WL 4714159, United States District Court, S.D. Florida.
Aug. 29, 2013.
Cruise ship passengers brought action against cruise line, alleging negligence and loss of consortium after one passenger slipped and fell on ship. Passenger moved to compel discovery.
Plaintiffs bring this negligence and loss of consortium action against Defendant NCL (Bahamas) Ltd., arising from injuries sustained while Plaintiff Teresita Sorrels was a passenger aboard one of Defendant’s vessels and slipped and fell. The incident at issue occurred pool side on a teak wood deck that was wet from rainwater. While engaging in discovery, Plaintiffs were informed that Defendant possessed four photographs of the incident scene that had been taken by the ship’s security officer approximately 35 minutes after Plaintiff Teresita Sorrels fell on April 13, 2012. Plaintiff now moves the Court to compel Defendant to produce these four photographs. In response, Defendant objects to the production of the photographs on work product grounds. Claims of work product protection are governed by Federal Rule of Civil Procedure 26(b)(3) (which codifies the work product doctrine first articulated in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). Rule 26(b)(3) provides that “[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative….” Fed.R.Civ.P. 26(b)(3)(A). Such documents and things, however, are discoverable upon a showing that the party seeking discovery has a “substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed.R.Civ.P. 26(b)(3)(A)(ii). Here, even if the requested materials constitute attorney work product, Plaintiff has demonstrated that she has a substantial need for these materials and cannot obtain their substantial equivalent by other means. Plaintiff seeks these photographs to determine whether there “were any signs or warnings at the time of the accident.” Because Plaintiff Teresita Sorrels was taken directly to the ship’s medical facility after she fell, she had no opportunity to take her own contemporaneous photographs of the scene. Moreover, Defendant’s remaining claims that Plaintiff has not met her burden because she can depose others as necessary, rely on the provided security footage, and/or take current photographs of the scene are unavailing on this record. Indeed, “[c]ourts have generally allowed discovery of photographs and diagrams which were made at the time of the accident because of the inherent inability of a party to reproduce these materials.” Accordingly, Defendant shall produce to Plaintiff the four requested photographs on or before September 4, 2013.
Defendant ordered to produce the requested photographs.
SUMMARY JUDGMENT ENTERED AGAINST JONES ACT EMPLOYEE WHERE HE PRODUCED NO EVIDENCE SUGGESTING THAT JONES ACT EMPLOYER FAILED TO PROVIDE A REASONABLY SAFE PLACE TO WORK OR EVEN THAT AN INCIDENT HAPPENED.
Deren SMITH v. BASIC MARINE SERVICES, INC.
2013 WL 4046272 United States District Court, E.D. Louisiana.
Civil Action No. 12-2270. | Aug. 7, 2013.
Before the Court are two motions by Basic Marine Services, Inc.: (1) motion for summary judgment dismissing the plaintiff’s claims for unseaworthiness and Jones Act negligence; and (2) motion for partial summary judgment dismissing the plaintiff’s claims related to punitive damages for maintenance and cure and unseaworthiness.
This marine personal injury case concerns alleged Jones Act negligence and unseaworthiness arising from a pipe-tripping operation on a rig. On June 8, 2011 Basic Marine Services, Inc. hired Deren Smith as a floor hand. On February 26, Smith injured his left shoulder while pushing on the elevators when the crew was tripping pipe out of the hole and laying drill string down on the rig floor. Defendant moved for summary judgment and court found that the plaintiff presented no evidence supporting his allegation that Basic Marine violated its duty to plaintiff, or that any alleged negligence caused his shoulder injury. Significantly, “a Jones Act employer is not an insurer of a seaman’s safety; the mere occurrence of an injury does not establish liability.” Court further held that Smith advances no theory to suggest how his employer could have acted more prudently under the circumstances such that his shoulder injury would have been prevented; he presents no genuine issues of material fact concerning the safety of the pipe-tripping method employed by Basic Marine’s crew, or other crew-based negligence that caused him to injure his shoulder. Absent any evidence that the pipe-tripping method employed was itself unusual or hazardous, the plaintiff has failed to raise a material fact issue concerning whether Basic Marine acted negligently in the method it employed for tripping pipe, including the use of oil-based mud. There is no record evidence suggesting that Basic Marine failed to provide Smith with a reasonably safe place to work. Or that an incident happened. Because the plaintiff cannot establish an essential element of his Jones Act negligence claim, summary judgment in Basic Marine’s favor is warranted. Independent from a claim under the Jones Act, a seaman has a claim for injuries caused by the unseaworthiness of a vessel under general maritime law. Mr. Smith contends that Basic Marine failed to institute safe housekeeping practices, failed to perform job safety analysis related to tripping pipe, and otherwise employed an unsafe method of tripping pipe. His contentions find no support in the record. On the other hand, Basic Marine submits that the record shows that Rig 10 was reasonably fit and safe for its intended purpose, that the method of tripping pipe in effect on February 26, 2012 was a safe method, that it was accomplished using a reasonable number of crew members, and that all of the equipment needed to perform the pipe-tripping task was in safe and working order. The Court agreed. Basic Marine has carried its summary judgment burden by demonstrating that Mr. Smith cannot prove an essential element of his unseaworthiness claim (that Rig 10’s appurtenances or its crew were not fit for their intended purposes such that an unseaworthy condition played a substantial part in causing Smith’s injury); accordingly, summary judgment is appropriate.
Accordingly, the defendant’s motion for summary judgment regarding plaintiff’s claims for unseaworthiness and Jones Act negligence is GRANTED.