SIMMS v. OCEANEERING INTERNATIONAL, INC. (E.D.La. 2005)

SARAH VANCE, District Judge

Before the Court is defendant Oceaneering International, Inc.'s motion for summary judgment dismissing the complaint of plaintiff Carolyn Simms. Simms opposes the motion. For the following reasons, the Court DENIES in part and GRANTS in part Oceaneering's motion.

Plaintiff Carolyn Simms was employed as a cook aboard the M/V OCEAN SERVICE, a vessel owned and operated by Oceaneering. On May 10, 2003, Simms was preparing the morning meal in the galley of the vessel. She alleges that, because of the movement of the vessel, she fell. In an attempt to steady herself, Simms grabbed a bar on the front of the oven and twisted her shoulder. As a result of her fall, she alleges that she suffered injuries to her shoulder, as well as her back, knee, hands, and hip.

On May 5, 2004, Simms sued Oceaneering, alleging negligence under the Jones Act, 46 U.S.C. § 688, a general maritime claim of unseaworthiness and a claim for maintenance and cure. Alternatively, Simms seeks relief under Rule 905(b) of the Longshore and Harbor Workers' Compensation Act. Simms seeks past and future lost wages, past and future medical expenses, and damages for pain and suffering, permanent disability, loss of enjoyment of life, and disfigurement.

Oceaneering now moves for summary judgment. Oceaneering seeks to dismiss Simms' complaint on the grounds that there is no evidence that it was negligent or that the vessel was unseaworthy.

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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.

If the dispositive issue is one on 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; 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. 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; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).

A. Jones Act Negligence

Under the Jones Act, a seaman's employer is liable for damages if the employer's negligence caused the seaman's injury. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997). The employer is held to a standard of ordinary prudence under the circumstances. Id. at 335-36. The seaman is held to the standard of the reasonable seaman in like circumstances, which include the employee's reliance on his employer to provide a safe working environment and the seaman's experience, training or education. Id. at 339. A seaman may prevail in a Jones Act action if she shows that "employer negligence played any part, even the slightest, in producing the injury . . . for which damages are sought." Id. at 335.

Here, the issue is whether Oceaneering exercised ordinary prudence under the circumstances. Oceaneering argues that Simms was solely responsible for her fall and maintains that it is not responsible as a matter of law because it "has every reason to expect Ms. Simms to perform her duty as a cook and prepare meals in seas with waves of 5 feet." Oceaneering insists that the seas were five feet at the time of Simms injury and that seas of five feet are typical in the area where the ship was when Simms fell. Oceaneering also argues that Simms was negligent for failing to ask for assistance if she believed conditions were dangerous. Finally, Oceaneering's expert, Douglas Halsey, opines that the sea conditions present at the time Simms fell are routine and normal in the Gulf of Mexico and that Oceaneering did not fail to exercise ordinary prudence by requiring Simms to prepare breakfast under those conditions.

The Court finds that Simms has raised a genuine issue of material fact as to Oceaneering's negligence. First, to the extent that Oceaneering suggests that it cannot be found negligent if Simms was partly responsible for her fall, the Court rejects Oceaneering's suggestion. It is well established that contributory negligence does not bar recovery under the Jones Act. Gavagan v. United States, 955 F.2d 1016, 1019 (5th Cir. 1992). Second, the Court finds that Simms has provided evidence from which a reasonable jury could find that Oceaneering, by not suspending meal preparation, failed to meet the standard of ordinary prudence under the circumstances required by law and that its failure contributed to her injury. Simms has produced an expert report signed by David Cole, who concludes that Oceaneering "did not demonstrate proper seamanship and marine safety by requiring Ms. Simms to prepare breakfast under the sea conditions of the day. Prudent seamanship would call for a suspension of normal cooking activities." ( See Pl.'s Opp. to Def.'s Mot. Summ. J., Ex. E at 3). Oceaneering notes that Cole's opinion is based on information about sea conditions from the vessel's logs, which recorded the seas at eight to ten feet. Oceaneering argues that a weather buoy more accurately recorded the seas at four to five feet, and its expert based his opinion that ordinary prudence did not require a suspension of cooking activities on those measurements. If anything, Oceaneering's argument highlights that a genuine issue of fact exists with respect to the height of the seas and the impact that evidence has on the experts' conflicting opinions.

Although Oceaneering insists that Cole's opinion is erroneous and that Halsey's opinion is to be believed, such credibility determinations are to be made by the fact-finder. Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991). The conflicting expert opinions as to whether Oceaneering's failure to suspend meal preparation constitutes negligence, as well as the conflicting information on the sea conditions at the time of the accident, raise genuine issues of material fact that must be determined by a fact-finder. The Court finds no authority to support Oceaneering's proposition that Oceaneering, as a matter of law, did not fail to exercise ordinary prudence when it required Simms to work under the circumstances on the day in question. To grant Oceaneering's motion for summary judgment, the Court would have to make a credibility decision between Oceaneering's expert and Simms' expert, something that the Court is precluded from doing at the summary judgment stage.

Because a genuine material fact exists as to whether Oceaneering exercised reasonable care under the circumstances surrounding Simms' injury, Oceaneering's motion is DENIED as to Simms' claim for Jones Act negligence.

To establish a claim for unseaworthiness, "the injured seaman must prove that the owner has failed to provide a vessel, including her equipment and crew, which is reasonably fit and safe for the purposes for which it is used. In addition, the plaintiff must establish a causal connection between his injury and the breach of duty that rendered the vessel unseaworthy." Boudreaux v. United States of America, 280 F.3d 461, 468 (5th Cir. 2002) (citing Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir. 2001)). A vessel's unseaworthiness may arise from various circumstances, including defective gear, appurtenances in disrepair, an unfit crew, an improper method of loading cargo, or an insufficient number of workers assigned to perform a shipboard task. See Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499 (1971). A plaintiff asserting a claim of unseaworthiness need not establish negligence, but bears the burden to show that the unseaworthy condition "played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness." Phillips v. Western Co. of North America, 953 F.2d 923, 928 (5th Cir. 1992).

Oceaneering argues that Simms has failed to raise a genuine issue as to whether it provided a seaworthy vessel. Oceaneering notes that Simms testified that there was nothing on the galley floor that caused her to slip (Pl.'s Opp. to Def.'s Mot. Summ. J., Ex. B at 60:21-61:1) and contends that there is no other evidence that would raise a genuine issue as to whether it failed to provide a vessel and equipment that is reasonably fit and safe for its intended purposes.

The Court agrees with Oceaneering that Simms has failed to raise a genuine issue as to whether any unseaworthy condition on the vessel existed and caused her fall. First, although Simms' expert notes that there is an uncovered drainage channel in the galley where Simms fell that "could serve as a tripping or stumbling hazard" (Pl.'s Opp. to Def.'s Mot. Summ. J., Ex. E at 3), he also admits, as does Simms in her brief, that Simms cannot say that the uncovered drainage channel was a contributing cause of her fall. (Pl.'s Opp. to Def.'s Mot. Summ. J. at 3). In fact, Simms testified that her feet did not come up off the floor when she fell, which indicates that she did not trip over anything, including the drainage channel. (Pl.'s Opp. to Def.'s Mot. Summ. J., Ex. B at 61:11-16). And, as Oceaneering notes, Simms also testified that nothing on the galley floor caused her to slip. (Pl.'s Opp. to Def.'s Mot. Summ. J., Ex. B at 60:21-61:1). Considering this evidence, the Court finds that Simms has failed to raise a genuine issue as to whether the drainage channel was an unseaworthy condition that played a substantial part in causing Simm's injury.

Second, Simms has not identified or provided evidence that anything else about the vessel or its appurtenances was not reasonably safe and caused her injury. Although courts have found a vessel unseaworthy when there was an unsafe method of work, such as a lack of proper equipment and manpower to perform a task, see Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354, or a failure to require the use of safety procedures or equipment that would have prevented the injury, see Weeks v. Alonzo Cothron, Inc., 466 F.2d 578, 581 (5th Cir. 1972), Simms has not alleged or provided evidence that would raise a genuine issue as to whether those kinds of deficiencies existed in this case and, even if they did, whether they played a substantial part in her injuries.

Finally, although Simms, in a supplemental opposition, provides medical records from Oceaneering's occupational expert, Dr. Robert Davis, in which he states that Simms' "small frame and muscular build do not appear to meet the standards set forth in the job description by Oceaneering," Simms argues only that this evidence goes to Oceaneering's negligence. She does not argue, and the Court does not find, that it is evidence that an unseaworthy condition played a substantial part in her injury.

Because Simms has not created an issue of fact that any unseaworthy condition existed and played a substantial part in causing her injury, Oceaneering's motion is GRANTED as to Simms' claim for general maritime law unseaworthiness.

As Simms points out, Oceaneering does not appear to have moved for summary judgment on Simms' claim for maintenance and cure. In any event, Oceaneering has failed to show an absence of material fact as to Simms' allegation that she is entitled to maintenance and cure. Accordingly, that claim also remains for trial.

For the foregoing reasons, the Court DENIES in part and GRANTS in part Oceaneering's motion for summary judgment.