United States District Court, E.D. Louisiana
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FACTUAL AND PROCEDURAL HISTORY
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.
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.
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.
FINDINGS OF FACT
Plaintiff Kelvin Dunn is an individual of the age of majority
and a resident of Louisiana.
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
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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
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 ...