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Westmoreland v. Marine

United States District Court, E.D. Louisiana

May 2, 2018

NELSON ZANE WESTMORELAND
v.
VENICE MARINE and OUTDOOR CONSULTANTS, INC., ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Blake Rigby's motion for summary judgment. For the reasons that follow, the motion is GRANTED.

         Background

         This case arises from a broken ankle suffered by the plaintiff when he jumped off the bow of a boat onto a slick dock four feet below at the conclusion of an overnight recreational fishing trip.

         Captain Blake Rigby is a charter boat captain, operating charters and leisure fishing trips from the Venice Marina into the Gulf of Mexico eight to ten times each month using a 38-foot Fountain boat with outboard engines. His charter company is called Triple Tail Charters, but it is not a formally formed entity and it does not own any boats. In the summer of 2016, the boat Rigby used, the 38-foot Fountain boat, was solely owned by Allen Reynolds.[1]

         In July 2016, Robert Andrew Ray planned an overnight fishing trip for a few friends and co-workers. He hired and paid Captain Rigby to take him and the group fishing offshore in Louisiana.[2]There is some debate concerning whether the trip was a charter or a leisure fishing excursion with friends of the boat owner, Allen Reynolds.

         On July 22, 2016, the group of co-workers and friends, including Michael Dean Vicars, Paul Stiles, John David Anthony, Robert Andrew Ray, and Nelson Zane Westmoreland, drove from Houston to Venice for the overnight offshore fishing trip. Once they arrived in Venice, they unloaded their bags at a house they had rented and then went to the marina. The group brought sandwiches and beverages, including beer, onboard with them; fishing gear was provided for them. The group's plan was to stay out all night fishing and return to the marina in the morning. They arrived at the marina in Venice at around 4:00 p.m. and left the dock at 4:30 p.m. Captain Rigby pulled the boat up to the dock and the passengers climbed aboard at the bow.

         Captain Rigby navigated the boat approximately 80 miles from the marina and around to different platforms so that the group could fish for tuna. There were intermittent rain showers while they fished offshore. The group took turns fishing and sleeping throughout the night. Around 12:30 a.m., Stiles told Westmoreland that it was probably time to stop drinking beer. Westmoreland was a little drunk at that time, but he stopped drinking, sat down, and ate a sandwich.

         When they returned to the Venice Marina at around 6:30 a.m. the next morning, Captain Rigby positioned the boat, bow first, as is customary at Venice Marina. Dock workers tied off the boat. According to Captain Rigby, the usual and customary manner of exiting vessels onto the dock at Venice Marina is by climbing down from the bow of the boat onto the dock. This was also true of the fishing trip patrons, who exited the boat from the bow, just as they had entered. There was a 3½ to 4 foot drop between the bow of the vessel and the floor of the dock, which was roughly the same when they had boarded the boat the day before. Captain Rigby gave no instructions on how to disembark, and no one asked Rigby to provide an alternative means of egress from the bow of the boat.

         The Venice Marina dock was wet that morning. There was a lot of traffic and activity, including boats leaving, boats arriving, people pulling fish towards a cleaning station, and a man hosing down the dock. Vicars, Ray, and Anthony were in a rush to disembark because they wanted to get to the restroom. Vicars and Anthony went to the front of the bow and jumped down to the dock, and Ray recalls either sitting down and sliding off the boat at the bow, or lowering his hands and dropping his feet to the dock. Stiles also went to the front of the bow to exit, but he does not remember if he jumped down or sat down first and then scooted down to the dock. None of them fell or injured themselves. Westmoreland was the last patron to disembark. Westmoreland squatted down or sat at the edge of the boat and then jumped to the dock below. Upon contact with the dock, his feet came out from under him, causing him to severely fracture his right ankle. While laying on the dock, Westmoreland noticed that the dock was wet and that he was covered with fish slime and algae.

         On June 27, 2017, Nelson Zane Westmoreland sued Blake Rigby, Triple Tail Charters, and Deep Delta Houseboats, L.L.C., d/b/a Venice Marina, [3] alleging that Rigby's negligence in failing to provide a safe means of egress and the marina's unsafe condition caused his severe ankle surgery. He seeks to recovery under general maritime and Louisiana law. Rigby now seeks summary relief dismissing the plaintiff's claims against him.

         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, 586 (1986). A genuine dispute of fact exists only "if the evidence is such that a ...


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