Summary
In Ingersoll, the plaintiff moved for summary judgment against a shipowner based on deposition testimony positing that the shipowner breached the turnover duty of safe condition by failing to maintain the ship's deck in an ice-free condition.
Summary of this case from Nystrom v. Khana Marine Ltd.Opinion
A03-65 CV (JWS), [Re: Motion at Docket 32].
September 30, 2004
ORDER FROM CHAMBERS
I. MOTION PRESENTED
At docket 32, plaintiff Theresa E. Ingersoll moves for summary judgment regarding defendant Newport Petroleum, Inc.'s liability pursuant to Federal Rule of Civil Procedure 56. Newport Petroleum, Inc. ("Newport") opposes the motion. Oral argument was requested, but would not be of assistance to the court.
II. BACKGROUND
This dispute involves injuries suffered by plaintiff in the course of her employment as a petroleum-gauger in Valdez, Alaska. Plaintiff's duties as a gauger required her to board petroleum tankers in order to measure the available petroleum capacity of the tanker. On the morning of November 12, 2000, plaintiff boarded Barge 255, owned by defendant Newport, in order to measure that tanker's capacity. Witnesses estimate that at the time of plaintiff's visit, approximately one-quarter of Barge 255's deck was covered by patches of ice. Newport alleges that plaintiff was cautioned as she boarded Barge 255 that the deck was slippery in places due to the presence of ice, but plaintiff denies receiving such a warning. While traversing the deck of Barge 255, plaintiff slipped on an icy patch and fell. Plaintiff alleges that she suffered injuries to her ankle, shoulder, back, neck, and head as a result of her fall, and asserts that Newport was negligent for failing to provide a safe working environment. Specifically, plaintiff asserts that Newport negligently allowed ice to accumulate on Barge 255's deck, and seeks recovery for her damages pursuant to the Longshore and Harbor Workers' Compensation Act (the "Act").
Doc. 32 at 3.
Doc. 32 at 3; doc. 35 at 3.
Doc. 32 at 7; doc. 35 at 4.
Doc. 35 at 4.
Doc. 32 at 3; doc. 35 at 5.
33 U.S.C. § 901 et seq.
Jurisdiction arises under 28 U.S.C. § 1331.
III. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if there is no genuine dispute as to material facts and if the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing that there is no genuine dispute as to material fact. The moving party need not present evidence; it need only point out the lack of any genuine dispute as to material fact. Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial. All evidence presented by the non-movant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the non-movant. However, the nonmoving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Id. at 323-25.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
Id. at 255.
Id. at 248-49.
IV. DISCUSSION
The Longshore and Harbor Workers' Compensation Act permits a longshoreman or harbor worker to sue the owner of a vessel for injuries sustained while onboard the vessel, provided that the vessel's negligence caused the injury. Vessels have five duties under § 905(b): The turnover duty of safe condition; the turnover duty to warn; the active involvement duty; the active control duty; and the duty to intervene. Plaintiff's complaint alleges a violation of the turnover duty of safe condition, which requires the exercise of:
ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property.
Scindia Steam, 451 U.S. at 167.
Significantly, the turnover duty of safe condition does not require a vessel be free from all dangerous conditions, but rather that the ship be in such condition "that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter," would be able to safely perform his or her duties.
See Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416 n. 18 (1969) (emphasis added).
In support of her motion for summary judgment, plaintiff asserts that the presence of ice on the deck of Barge 255 is undisputed, and contends that Newport's duty to make the barge deck safe from the hazards of ice was established by the deposition testimony of Lewis Audette, manager of Newport Petroleum. Plaintiff is half-correct: The parties do not dispute the presence of ice over approximately one-quarter of Barge 255's deck. For the reasons stated below, however, Mr. Audette's deposition does not establish that Newport breached its turnover duty of safe condition by failing to maintain Barge 255's deck in an ice-free condition. In his deposition, Mr. Audette, in response to the question, "What is the responsibility of the tankerman for putting down the sand and ice-melt?" replied that "if he saw someplace that he determined, or the barge was a mass of ice, he would obviously have to get some ice-melt on there, and just make a decision whether and where the ice-melt or sand should be put in place." First, the turnover duty of safe condition is determined by the standard of an expert and experienced stevedore, not by the standard of Newport Petroleum's manager. Although Mr. Audette testified that he is knowledgeable "about the duties and responsibilities of seaman manning barges and tugs for Newport," it is not clear from the record whether Mr. Audette has any knowledge about the duties and responsibilities owed to visiting longshoremen and harbor workers. Consequently, Mr. Audette's opinion as the manager of Newport is irrelevant to the present inquiry. Moreover, even were Mr. Audette qualified to give an opinion regarding the reasonableness of Barge 255's condition, his deposition testimony is, at best, unclear. The statement: "he would obviously have to get some ice-melt on there, and just make a decision whether and where the ice-melt or sand should be put in place" is illogical. The decision whether to apply ice-melt would necessarily precede the application itself. Thus, even were Mr. Audette qualified to opine as to Barge 255's duty, his testimony fails to establish the parameters of reasonable care under these circumstances.
Audette Deposition at 26, attached as Exhibit A to Docket 32.
For the same reason, plaintiff's attempts to establish the unreasonable danger posed to an expert and experienced stevedore through the opinions and actions of the Valdez Fire Department, and through the opinion of retired United States Coast Guard Captain Kirk Greiner, lack merit. Stated plainly, these entities are unqualified to testify as to whether the icy conditions posed an unreasonable danger to an expert and experienced stevedore.
The determination of reasonableness is ordinarily a question for the trier of fact, and summary judgment is rarely granted in cases involving claims of negligence. In Martinez v. Korea Shipping, the court reversed an award of summary judgment, holding that the determination of whether a hazard was unreasonably dangerous to longshore workers was a question of fact for the jury. In the present case, the question of whether ice coverage over one-quarter of Barge 255's deck constitutes an unreasonably dangerous condition to an expert and experienced stevedore is disputed. Having failed to establish that she is entitled to judgment as a matter of law, plaintiff's motion for summary judgment is DENIED.
Martinez v. Korea Shipping, 903 F.2d 606, 609 (9th Cir. 1990).
Id. at 610-11.