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Dunn v. Marquette Transportation Company, LLC

United States District Court, E.D. Louisiana

September 6, 2017

KELVIN DUNN
v.
MARQUETTE TRANSPORTATION COMPANY, LLC

         SECTION "L"(5)

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

         I. FACTUAL AND PROCEDURAL HISTORY

         This case arises out of injuries allegedly sustained by Plaintiff Kelvin Dunn (“Plaintiff”) on or about August 21, 2015 while he was employed as a relief captain on the M/V ST. RITA, which at the time of the accident was located in the intracoastal waterway in Bolivar, near Galveston, Texas. Specifically, Plaintiff alleges that he slipped and fell on diesel fuel that had accumulated in the engine room due to a fuel leak on the vessel and sustained injuries to his leg, hip, and back.

         On August 3, 2016, Plaintiff filed a complaint against Defendant Marquette Transportation Company, LLC (“Marquette”), the owner of the ST. RITA, and Plaintiff's employer at the time of the accident. He seeks damages under the Jones Act, 46 U.S.C. § 30104, and general maritime law for Defendant's alleged negligence and vessel unseaworthiness. Defendant denies liability claiming that Plaintiff's injuries were caused in whole or in part by Plaintiff's own actions.

         This matter came on for trial without a jury on July 10, 2017. The trial lasted two days. The Court has carefully considered the testimony of all of the witnesses, the exhibits entered into evidence during the trial, as well as the record. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court hereby enters the following findings of fact and conclusions of law. To the extent that any findings of fact may be construed as conclusions of law, the Court hereby adopts them as such. To the extent that any conclusions of law constitute findings of fact, the Court adopts them as such.

         II. FINDINGS OF FACT

         (1) Plaintiff Kelvin Dunn is an individual of the age of majority and a resident of Louisiana.

         (2) Defendant Marquette Transportation is the owner of the M/V ST. RITA, a tug boat which was maneuvering loaded chemical barges into their proper position in the fleeting area, more specifically, the Kirby Fleet area in the intracoastal waterway in Bolivar, near Galveston, Texas at the time of Plaintiff's accident.

         (3) At all relevant times, Plaintiff was employed by Defendant Marquette Transportation, as a seaman or member of the crew of the M/V ST. RITA, in the capacity of relief captain. Plaintiff's job duties required him to steer the vessel and supervise the crew, as well as walk up and down stairs, along with some other moderate physical activity.

         (4) The M/V ST. RITA has a two-level engine room, with a center stairway that leads from the upper/mezzanine level of the engine room to the lower engine room. The stairway lands on the lower engine room deck just aft of the front of the port and starboard engines, and directly between the port and starboard engine.

         (5) The engine room contains the two generators for the vessel. The M/V ST. RITA relies on one generator at a time, and automatically switches between these generators every twelve hours. The generators can also be shut off manually. In that case, the running generator would be turned off, and power would be manually switched to the other generator. The vessel is also equipped with an emergency shut off switch, which will shut off both generators, and thus all power to the vessel, simultaneously.

         (6) The switch to shut off individual generators is located on the generators themselves. The emergency shut-off switch is located outside of the engine room near the door.

         (7) When the emergency shut-off switch is activated, the vessel's engines are shut off. The vessel does have some back-up battery power, but this will only run the emergency lights and radio. Without power, the vessel can still maneuver its rudders, but the rudders are insufficient to adequately and safely steer the vessel.

         (8) The morning of the accident, the M/V ST. RITA was pushing two loaded chemical barges, at a speed of five knots. These barges had a ten foot draft, four feet wide and three hundred feet long. The M/V ST. RITA was approaching the Kirby Fleet where it would maneuver the loaded barges into the proper position in the fleeting area.

         (9) Just before 5:00 a.m., Plaintiff was awakened by the sound of the vessel's engines “backing down” as the on-duty pilot was struggling to align the chemical barges in the fleeting area. Plaintiff left his bunk room, and went to the helm to assist Pilot Julius Brown. When he arrived at the helm, Plaintiff found the M/V ST. RITA was “sideways” trying to swing the head of the tow around to land a single barge level in the fleet. Plaintiff temporarily took over the controls and radioed for another tug in the fleet to come act as an assist boat. With an assist tug alongside and Plaintiff operating the controls, the tow was straightened back out and landed in an ordinary manner alongside the fleet.

         (10) As Plaintiff was preparing to return to his bunk room to get ready for his shift, Corey Crespo, a deckhand on the M/V ST. RITA, radioed and said, “there's some diesel or some fluid spraying from a generator in the engine room.” Plaintiff left the helm and proceeded down the stairs to the mezzanine deck of the engine room to investigate the fuel leak. Upon assessing the leak, Plaintiff determined the safest response was to switch generators, rather than using the emergency cut-off switch, which would shut off power to the entire vessel. To shut off the leaking starboard generator and switch power to the port generator, Plaintiff would need to use the shut off switch located on the generator itself, which was only accessible from the floor of the engine room.

         (11) Plaintiff entered the engine room on the mezzanine level, then proceeded down the stairs to the first floor of the engine room, where the generators were located. When Plaintiff reached the bottom of the stairs, he turned to his left (towards the starboard engine) and then proceeded between the stairway and the starboard engine forward towards the running starboard generator. Corey Crespo had followed Plaintiff into the engine room and down the stairs. As soon as Plaintiff and Crespo reached the decking, they slipped on the accumulated diesel fuel. Crespo nearly fell, but was able to catch himself on nearby equipment. Plaintiff fell and landed hard on his right hip resulting in a severely fractured femoral head.

         (12) After the fall, Plaintiff was unable to move and another deckhand came down into the engine room to assist with the transfer of generator power. When the starboard generator was shut down, the fuel leak stopped. Pilot Brown then returned the vessel to the fleet and called for an ambulance. Within the hour paramedics arrived and Plaintiff was evacuated to a hospital in Galveston, where he underwent emergency treatment and a surgery where four screws were placed in his hip to stabilize and reduce the hip fracture.

         (13) At the time of the accident, Plaintiff was wearing a pair of athletic Nike slide shoes with rubber soles. These slide shoes were not in compliance with Marquette's safety requirements for working on the deck or in the engine room. However, Corey Crespo testified that he was wearing safety work boots with rubber soles when he entered the engine room. Both Plaintiff and Crespo slipped when they attempted to enter the engine room.

         (14) While Plaintiff was not on duty at this time, he was the captain of the vessel and was well aware of Marquette's safety regulations which required employees to wear closed-toed shoes while on deck and in the engine room. However, even if Plaintiff had been wearing steel-toed shoes, he still would have slipped. Corey Crespo slipped while wear steel-toed boots. While he was able to catch his fall, he did so by grabbing on to adjacent equipment, and not because his footwear completely prevented a slip. Further, steel-toed boots are generally effective at preventing injury caused by heavy objects dropping on an employee's foot; generally, they are not required because of their anti-slip properties. As Captain Nichols testified, if Plaintiff had been wearing steel-toed boots he still would have slipped; once there is diesel fuel on the bottom of your shoes, you are going to slip. While it is undeniable that closed-toe boots were required footwear for crew members working in the engine rooms, Corey Crespo, who was wearing boots, also slipped because of the diesel fuel. Captain Dunn was in violation of company safety policy and therefore negligent in not wearing the required boots; however, his negligence, in this regard, was not the cause of his fall or injury.

         (15) Further, the Court expressly finds that Plaintiff's decision to enter the lower-engine room to shut down the starboard generator and stop the fuel leak was a reasonable choice under the circumstances. The tug was approaching a barge fleeting area, pushing two loaded chemical barges. If Plaintiff had used the emergency shut-off switch outside of the engine room, he would have killed all power on the vessel. The tug had only recently regained complete control of the two barges, as the current had pushed them sideways and a second assist tug was required to get the barges back in place. Cutting off power, and the ability to navigate, would have resulted in two loaded chemical barges and a tug with a diesel leak in the engine room floating- uncontrolled-towards an entire fleet of chemical barges.

         Rather than make a choice which would have exacerbated the dangerous situation already unfolding on the vessel, Plaintiff decided to enter the engine room to, as he phrased it, “fix the situation.” He could not see the source of the leak from the top of the stairs, so proceeded down the stairs to the main level of the engine room when he slipped and fell on the accumulated fuel.

         (16) The Court has reviewed the evidence presented regarding the fuel leak and finds that the factual issues surrounding this aspect of the case are not significantly in dispute. Port engineer, Walter Hayes, who was responsible for coordinating and performing the maintenance aboard the ST. RITA, testified at trial. He explained that three days prior to the accident, he went aboard the M/V ST. RITA to repair one of the main engine gears. While working, he noticed that the fuel filter housing to the starboard generator appeared to be worn, so Hayes ordered a new fuel filter housing and replaced it at the same time that the main engine gear repair was underway. After installation, Hayes inspected the fitting, found it was acceptable, cleaned it, placed Teflon on its threads and reinstalled it to the new housing. Hayes then said that he restarted the generator and tested the new assembly and found that all the fittings were holding tight and not leaking diesel fuel.

         (17) Hayes also repaired the fuel pressure gage after the leak and the resulting accident. He explained that the leak began when the stem which connects the valve to the fuel filter housing broke in half. He had never known one of these stems to fail before, and had no reason to believe it would break after he completed the initial repair. Nonetheless, the broken fuel pressure gauge was the direct cause of the dangerous condition which rendered the vessel unseaworthy. Plaintiff's fall and injuries were caused directly by the unseaworthy condition of the broken fuel pressure gauge and the Defendant's negligence in failing to provide the Plaintiff with a safe place to work.

         (18) Plaintiff has undergone significant medical treatment as a result of the accident. This treatment included an emergency surgery to stabilize his broken hip, injections in the facet joints of the lower back, an epidural steroid injection, as well as physical therapy and medication. Plaintiff underwent emergency surgery under general anesthesia to place four 7.3mm stabilizing screws in the broken hip. He then attended 25 physical therapy sessions.

         On August 25, 2015, he was discharged from University of Texas Medical Branch and returned to his home in Denham Springs, Louisiana. He followed up with Dr. David Pope at the Bone and Joint Clinic in Baton Rouge, Louisiana. Dr. Pope was a physician selected by Marquette to follow Mr. Dunn's recovery. Dr. Pope testified (by deposition) that he was familiar with Dr. Craig Greene as a hip and trauma specialist, and that he would defer to Dr. Greene regarding future medical treatment as it related to Mr. Dunn's hip, since Dr. Greene had taken over Dunn's care. Dr. Pope also stated that he would defer to his partner, Dr. Kevin McCarthy (a spine specialist), regarding opinions relating to Mr. Dunn's lumbar spine. Although Dr. Pope did release Mr. Dunn to return to work, Mr. Dunn's consistent complaints of lumbar spine pain while treating with Dr. Pope were never addressed. Mr. Dunn also underwent extensive physical therapy at Peak Performance Physical Therapy between September, 2015 and March, 2016 which involved electrical stimulation, flexibility exercises, isometric hip abduction exercises, and dynamic and stabilization training.

         (19) On April 4, 2016, Kelvin Dunn sought a second opinion with Dr. Craig Greene, a hip and trauma specialist at Baton Rouge Orthopedic Clinic. Dr. Greene performed an extensive evaluation on Dunn and opined Mr. Dunn will need a total hip replacement before he reaches the age of 50, and since the hardware will not last the rest of his life, he will need a revision surgery, i.e., a second total hip replacement surgery somewhere down the road. Dr. Greene also testified that, prior to any hip replacement surgery, he would recommend hardware removal surgery, whereby Mr. Dunn would be placed under general anesthesia in a hospital setting, and Dr. Greene would remove the four large screws from plaintiff's femur. Dunn testified that he remains in significant pain in his right hip and he is ready to proceed with the hardware removal surgery. Dr. Green referred Dunn to Dr. Jeremy Comeaux, a physical medicine and rehabilitation specialist.

         (20) Dr. Jeremy Comeaux first saw Kelvin Dunn on May 5, 2016, at which time he ordered a CT scan of the lumbar spine. This CT scan was performed at Imaging Center of Louisiana on June 20, 2016, and it revealed multiple abnormalities including a herniated lumbar disc at the L4-5 level, lumbar retrolisthesis, and facet hypertrophy. Dr. Comeaux opined that all of Mr. Dunn's ongoing hip and lumbar spine complaints are indeed related to the August 21, 2015 accident in question, and that the need for ongoing care as it relates to the lumbar spine would also be related to that traumatic event. On December 2, 2016, Dr. Comeaux performed a lumbar epidural steroid injection under fluoroscopic guidance. Dunn testified that this injection helped with his pain for approximately one month. Dr. Comeaux eventually referred Mr. Dunn to orthopedic spine surgeon, Dr. Kevin McCarthy, who also practices at the Bone and Joint Clinic with Dr. David Pope.

         (21) Dr. Kevin McCarthy saw Kelvin Dunn for the first time on December 15, 2016. Dr. McCarthy's examination and treatment focused on Mr. Dunn's facet joints in his lower back. He also felt that the retrolisthesis (shifting of the vertebrae) could definitely be a source of pain for Mr. Dunn. Dr. McCarthy gave Mr. Dunn his first round of facet injections on January 20, 2017. He injected two joints on each side of the spine with an anesthetic and a steroid medication under fluoroscope. Plaintiff did receive temporary relief from the injections, which suggested to Dr. McCarthy that his back pain was coming from the facet joints. Plaintiff underwent a second round of facet joint injections on June 20, 2017, which appear to have provided him with some relief. Dr. McCarthy testified that Mr. Dunn would benefit from additional treatment for the lumbar spine in the form of rhizotomies over the next ten-year period. Rhizotomy is a procedure that utilizes radio frequency waves to produce heat on the nerves surrounding the lumbar spine. This prevents the nerve from being able to transmit pain signals to the brain. Dr. McCarthy further testified that Kelvin Dunn will eventually need a lumbar spine fusion at some ...


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