A Magistrate Recommended Summary Judgment In Favor Of An Employer, A Riverboat Casino, In An Employee’s Personal Injury Action Under The Jones Act Because The Boat Was Indefinitely Moored And Unlikely To Travel On The River. Thus, The Boat Was Not A Vessel In Navigation As Required By The Jones Act
TERRI L. EARLS, Plaintiff, v. BELTERRA RESORT, INDIANA, LLC d/b/a BELTERRA RESORT AND CASINO, Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, NEW ALBANY DIVISION
2006 U.S. Dist. LEXIS 53004
July 14, 2006, Decided
Plaintiff employee filed an action for personal injury under the Jones Act, 46 U.S.C.S. ¤ 688, against defendant employer, which operated a moored riverboat casino. The employer filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56 with a magistrate.
The employee allegedly sustained injuries to her hip and back while attempting to control a large cart on the boat. The employee alleged that the cart was unwieldy and unseaworthy, which contributed to her injuries by causing her to twist and wrench her body. The employer claimed that the Jones Act did not apply to the action. The magistrate found that, for the Jones Act to apply, the employee’s duties had to either contribute to the function of the vessel or to the accomplishment of its mission, and she had to have a substantial employment-related connection to a vessel in navigation. The boat’s status at the time of the employee’s injury did not expose its employees to the perils of the sea as required by the Jones Act. The boat was indefinitely moored for nearly two and one-half years when the employee was injured. And, while it was theoretically possible for the boat to begin traveling on the river at some point in the future, such a possibility was merely theoretical or remote and did not render the Jones Act applicable to the undisputed facts of the case. Thus, the employee did not meet both prongs of the test to be a seaman, and the Jones Act did not apply to her.
The magistrate recommended the grant of summary judgment.
Summary Judgment Dismissing Jones Act And Unseaworthiness Claims Was Improper Because A Causal Connection Between A Fishing Accident And A Seaman’s Ulcer Could Be Found Based On A Doctor’s Opinion That Nonsteroidal Anti-Inflammatory Drugs Could Cause Ulcers And The Seaman’s Affidavit That He Took Such Drugs Following The Accident.
JAMES NAPIER, Plaintiff, Appellant, v. F/V DEESIE, INC., Defendant, Appellee.
Nos. 05-1503, 05-2545
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
2006 U.S. App. LEXIS 17270
July 11, 2006, Decided
Plaintiff seaman filed an action against defendant employer, seeking damages for negligence under the Jones Act, 46 U.S.C.S. app. ¤ 688, for unseaworthiness, and for maintenance and cure. The United States District Court for the District of Massachusetts granted the employer’s motion for summary judgment on the Jones Act and unseaworthiness claims and denied the seaman’s Fed. R. Civ. P. 59(e) motion for reconsideration. The seaman appealed.
During a fishing accident, a hook impaled the seaman’s abdomen. Approximately one week later, physicians discovered that the seaman had suffered a perforated duodenal ulcer. According to the seaman’s medical expert, although the fishing hook did not directly cause the perforated ulcer, there was a causal relationship between the hook injury and the development of the ulcer because nonsteroidal anti-inflammatory drugs (NSAIDs) could cause ulcers. The district court concluded that there was no evidence that the seaman ingested two types of NSAIDs and, thus, that there was insufficient evidence that the fishing accident caused the ulcer. On appeal, the court held that the district court erred in granting summary judgment because the employer admitted that the seaman took two types of NSAIDs following the fishing accident and the seaman’s affidavit stated that he took the NSAIDs. The denial of the motion for reconsideration was also improper because the medical expert’s report unambiguously indicated that any NSAID alone could cause an ulcer. Whether the ulcer was foreseeable and whether the taking of NSAIDs was an intervening cause were issues for the jury to decide.
The court reversed the district court’s grant of summary judgment on the Jones Act and unseaworthiness claims and remanded the case for further proceedings.
Although A Company’s Maintenance & Cure Claims Arose Out Of Federal Maritime Law, Texas Law Applied To The Company’s State Law Negligence Claims & Thus The Company Was Required To File Expert Reports. The Trial Court Erred In Not Granting An Extension Of Time To File The Expert Reports Because The Delay Was Due To An Accident Or Mistake And Was Not Intentional.
MARINE TRANSPORT CORPORATION, Appellant v. THE METHODIST HOSPITAL; THE INSTITUTE FOR PREVENTATIVE MEDICINE/METHODIST HEALTHCARE SYSTEMS, THE METHODIST HOSPITAL/INSTITUTE FOR PREVENTATIVE MEDICINE MANAGEMENT, INC. AND RASHID KHAN, Appellees
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2006 Tex. App. LEXIS 6422
July 20, 2006, Decided
Appellant company challenged a decision of the 61st District Court, Harris County (Texas), which granted dismissal motions filed by appellees, hospitals and a doctor, in the company’s action seeking damages for negligence. The trial court applied former Tex. Rev. Civ. Stat. Ann. art. 4590i (repealed 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. ¤¤ 74.001-.507 (2005)) and refused the company an extension to file expert reports.
The doctor pronounced a worker fit for duty as a merchant seaman. He was employed by the company, became ill, and later died. The company then brought this action to recover damages. The trial court granted the motions to dismiss filed by the hospitals and doctor and refused to allow the company time to file the requisite expert reports. On appeal, the court reversed and remanded. The court found that the company’s claim for maintenance and cure was governed by federal maritime law. However, because the underlying health care liability claim was not governed by federal maritime law or statute, former Tex. Rev. Civ. Stat. Ann. art. 4590i (repealed 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. ¤¤ 74.001-.507 (2005)), governed to supplement the federal maritime law. The company was required under the former article to file expert reports under Tex. Rev. Civ. Stat. Ann. art. 4590i, ¤ 13.01(d) (repealed 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. ¤ 74.351 (Supp. 2005)). The trial court erred in refusing to extend the time to file such reports because the failure to timely file them was due to an accident or mistake and was not intentional.
Because the trial court erred in refusing to grant the company an extension of time to file the expert reports, the court reversed and remanded.
Employee That Was Never Assigned To A Particular Boat, That Worked On Barges That Were Brought Into The Dock And Was Never A Crew Member Of Any Boat Is Not A Jones Act Seaman, But A Longshoreman Covered By The Lhwca.
TIMOTHY JAMES POOLE, Plaintiff, v. KIRBY INLAND MARINE, LP and KIRBY CORPORATION, Defendants.
CIVIL ACTION NO. G-05-651
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2006 U.S. Dist. LEXIS 50019
July 21, 2006, Decided
Defendant employer moves for Summary Judgment on Plaintiff’s Jones Act, unseaworthiness, and maintenance and cure claims.
In October 2004, Plaintiff commenced work with KLM as a tankerman. Plaintiff is a U.S. Coast Guard licensed tankerman. KLM is a division of Kirby Inland Marine, LP. Plaintiff alleges that on July 27, 2005, he slipped and fell on a catwalk on a docked barge, the KIRBY 11003, thereby injuring his wrist. Plaintiff claims that his injuries were caused by Defendants’ Jones Act negligence and the unseaworthiness of the KIRBY 11003. Defendants now move for summary judgment on Plaintiff’s Jones Act, unseaworthiness, and maintenance and cure claims on the ground that Plaintiff is not a Jones Act seaman, but instead, is a longshoreman. Kirby claims that Plaintiff was placed in the shoreside division of the company, that he was never assigned to a particular boat, and that he worked on Kirby barges that were brought into the dock. Plaintiff was never a crew member of any boat. Defendants claim that they do not deny that some tankermen can be seaman, only that Plaintiff is not one of those tankermen. Defendants have shown that Plaintiff is not a Jones Act seaman, but is in fact, a longshoreman covered by the LHWCA. Therefore, Plaintiff is GRANTED leave to amend his Complaint within 20 days from the date of this Order.
Defendants’ Motion for Summary Judgment is hereby GRANTED, and Plaintiff’s Jones Act claim, unseaworthiness claim, and claim for maintenance and cure are hereby DISMISSED WITH PREJUDICE.
Defendant Was Not Negligent And Vessel Was Not Unseaworthy Where Plaintiff Seaman Was Injured When He Missed A Step, Lost His Footing, And Fell Down A Flight Of Metal Stairs Because Defendant Did Not Cause Plaintiff’s Accident And Injury.
WALTER HARRIS VERSUS OMEGA PROTEIN, INC.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 54558
July 20, 2006, Decided
Plaintiff seaman filed an admiralty and maritime complaint under Federal Rule of Civil Procedure 9(h) against Omega, asserting claims of negligence under the Jones Act, 46 U.S.C. ¤ 688, and unseaworthiness and maintenance and cure under the general maritime law.
On August 24, 2004, Walter Harris was a seaman employed as the chief engineer aboard Omega Protein, Inc.’s (Omega) fishing vessel, the Q. O. DUNN. At approximately 1:30 a.m., Harris slipped on the second step of the metal stairway that leads from the upper engine room to the lower engine room, landed on his buttocks, and “bounced” down the remaining stairs. Harris did not report the accident immediately, but waited until morning when Captain Frederick Newton was awake. Dr. Gregory Gidman, the company-recommended doctor, examined Harris and released him to light duty for four days. He suggested that Harris return for another visit. After his examination, Harris drove himself home to Moss Point, Mississippi, and did not return to work. Harris alleges that Omega was negligent in failing to take the following steps: remedy the defective stairway by applying a non-skid surface, replace a defective stairway that was improperly installed in front of a protruding pipe, and provide training to its crew regarding the safety of the stairways. Harris further contends that the defective stairway was a dangerous condition that rendered the vessel unseaworthy. The court does not find credible Webster’s theory that a pipe at the back of the second step caused Harris to fall. Harris did not attribute his fall to the pipe in his report to the Captain or in his deposition. The court is not convinced that the back of the boot hit the pipe and affected Harris’ ability to descend the stairway. The court further finds that Harris has not shown that Omega provided a stairway or a working condition that was not reasonably fit and safe. The stairway was inspected regularly, and there is no indication that the stairway was ever viewed by anyone as a dangerous condition that rendered the vessel unseaworthy.
The court finds that Harris was injured when he missed a step, lost his footing, and fell down a flight of metal stairs. Omega, however, was not negligent and did not cause Harris’ accident and injury. The vessel was not unseaworthy.
OTHER ISSUES OF INTEREST: CRUISE SHIP TAXATION, REGULATION and DISCLOSURE
This initiative would impose a $46 per person per voyage tax on large cruise ships to pay for vessel services. It would provide for the proceeds from the tax to be deposited in the state general fund and, subject to appropriation by the legislature, distributed to municipalities. It would levy a tax on cruise ship gambling activities in state waters. It would change the way cruise ship corporate income tax is calculated. It would require cruise ship operators to gather and report more information, and get a new type of permit for sewage, graywater or other wastewater before discharging in state marine waters. It would assess a $4 per passenger berth fee and require large cruise ships to have state-employed marine engineers (Ocean Rangers) licensed by the Coast Guard to observe health, safety and wastewater treatment and discharge operations. It would authorize citizen lawsuits against an owner or operator of a large cruise ship, or against the Department of Environmental Conservation, for an alleged violation of any permit condition, provision of environmental statutes or performance of duties. It would also enable a person who provides information leading to enforcement of the law to receive 25 to 50 percent of fines imposed. It would impose additional requirements on disclosures about on-ship promotions of shore-side businesses.
Should this initiative become law?