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George v. Marquette Transportation Company Gulf-Inland, LLC

United States District Court, E.D. Louisiana

June 28, 2017

ANTHONY L. GEORGE
v.
MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, LLC,

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is Marquette Transportation Company Gulf-Inland, LLC's motion for summary judgment. For the reasons that follow, the motion is DENIED.

         Background

         This Jones Act litigation arises out of a lead deckhand's claim that he twisted his ankle and injured his back and hip after tripping over rigging equipment cluttering the fleet deck on which he was working.

         Anthony L. George began working for Marquette Transportation Company Gulf-Inland in March 2014 as a senior deckhand. Mr. George was experienced and well trained as a deckhand, and he was familiar with Marquette's safety manual and vessel operating procedures. Mr. George was promoted to leadman (lead deckhand) and in late May 2015, he started working aboard the towing vessel, M/V REDEEMER.

         On June 6, 2015, Mr. George came on watch to build a tow that the front watch had started. As he was finishing building a tow of empty barges with his subordinate coworker, Marquette deckhand Caleb Smith, Mr. George crossed from the tow to the REDEEMER's fleet deck to retrieve a wire when he stepped on visible rigging equipment, specifically, a coiled wire, and rolled his ankle.[1]

         Measuring 16 feet by 11 feet and located above the bow main deck in between the pushknees, the fleet deck is customarily used to store rigging equipment for tow operations. It was industry practice to store rigging equipment on the fleet deck, where it would be accessible for building tow. Indeed, Mr. George was familiar with this standard practice, which was routine while working for Marquette as well as when he worked for prior employers. As a deckhand, it was Mr. George's duty to keep the fleet deck clean and organized; that is, after the process of building tow is complete, Mr. George was tasked with organizing the fleet deck. Nonetheless, on the day of the incident, Mr. George claims that there were no clear walkways, that “everything (sic) that you step, you stepping on top of something.”[2]

         Prior to working for Marquette, Mr. George had worked for other companies as a deckhand and was experienced in conducting nearly identical tow operations on similar pushboats with fleet decks. While working for Marquette, Mr. George had attended over 100 weekly safety meetings and had signed daily safety reports on the topics of safely building tow and tripping hazards. Mr. George had crossed between the fleet deck and the tow safely hundreds of times without prior incidents during his deckhand career, and in his deckhand training, he was aware of the routine precautions for transitioning between a vessel and a barge, including being aware of his surroundings and tripping hazards, which deckhands are trained to avoid.

         On four separate occasions prior to his alleged accident, Mr. George observed the rigging on the fleet deck. Mr. George first observed the rigging on the fleet deck when he came on watch. He noticed the rigging on the fleet deck a second time while he was attempting to throw rigging equipment from the pushknee near the fleet deck over to the tow. Mr. George saw the rigging on the fleet deck a third time as he went to cross over from the pushknee of the REDEEMER onto the tow. Finally, Mr. George saw the rigging on the fleet deck for a fourth time just before his incident when he looked down directly at the equipment as he stepped onto the fleet deck. Mr. George says he took a step to retrieve one wire from the fleet deck to complete his task while another wire “kicked back” and caused him to fall. Caleb Smith witnessed Mr. George's accident. Smith crossed over the same area without incident.

         On February 15, 2016, Mr. George sued Marquette Transportation Company Gulf-Inland, LLC and Marquette Transportation Company, LLC, alleging that defendants' negligence under the Jones Act caused his injuries; he also alleges that the defendants owe him maintenance and cure. On April 29, 2016, the Court granted the plaintiff's motion to dismiss Marquette Transportation Company, LLC. The remaining defendant, Marquette Transportation Company Gulf-Inland, LLC, now seeks summary judgment in its favor, dismissing the plaintiff's Jones Act claim.

         I.

         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). "[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted). Ultimately, "[i]f the evidence is merely colorable . ...


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