United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Partial Summary Judgment
(Rec. Doc. 26) filed by defendant, Great
Lakes Dredge and Dock Company LLC, (“Great
Lakes”), an opposition thereto (Rec. Doc. 31) filed by
Plaintiff, Gerald Mingo, a reply (Rec. Doc. 32) filed by
Great Lakes and a supplemental opposition filed by Plaintiff
(Rec. Doc. 38). Having considered the motion and legal
memoranda, the record, and the applicable law, the Court
finds that the motion should be DENIED.
AND PROCEDURAL BACKGROUND
litigation derives from a back injury sustained by Gerald
Mingo, a fifty-six-year-old resident of Columbia, Missouri.
Mingo was hired in January 2018 by Great Lakes as a deckhand
and crew member aboard the DERRICK 69. Prior to being hired,
Mingo underwent a physical to ensure he was fit for service.
During the physical, Mingo disclosed prior work accidents to
Great Lakes as well as his history of back and hip pain.
Mingo indicated, however, that the pain was under control as
long as he took Percocet when needed. After the physical,
Mingo was declared fit for all the necessary physical
activities he was to undertake as a Great Lakes employee.
(Rec. Doc. 31).
than Mingo, the crew of the DERRICK 69 consisted of deck
captain Omar Celedon, crane operator Punlork Peou, and senior
rigger Carl Callais. Callais, as senior rigger of the crew
with over two years’ experience, was assigned to be
Mingo’s “mentor, ” and help guide him
through the beginning of his employment. (Rec. Doc. 26-6).
The accident at issue occurred on January 15, 2018 after
about a week after Mingo began his employment.
of his job training, Mingo was provided instructional
materials detailing safe lifting practices. For purposes of
this accident, the most important practice reiterated by
Great Lakes, both in training videos and the SALT manual,
that employees have “stop work authority” and
should ask co-workers for assistance if the employee believes
the lift is too strenuous for one person. The SALT manual
further recommends no solo lifts on objects over 50 pounds.
(Rec. Doc. 31-9).
the crew’s tasks the day of the incident was to lift
the spud column. To lift the spud column, a
“D-ring” must be manually lifted and placed on
the crane’s hook. (26-2). Earlier that morning, the
crew performed a job safety analysis (“JSA”) to
prepare for the day’s work. Mingo missed the JSA,
although the crew gave him a synopsis when he arrived.
Although typically a one-man job, it is not unheard of for
two people to perform a D-ring lift. Callais was standing a
few feet away from Mingo during the entire lifting process,
but Mingo never asked for assistance nor did Callais offer
any. When Mingo attempted the D-ring life, he felt a
“pop” in his back. (Rec. Doc. 26-3).
after the accident, Great Lakes personnel performed an
accident recreation. At the recreation, Great Lakes measured
the height of the crane hook, the weight of the D-ring, and
demonstrated the common method of lifting the D-ring on to
the hook. The crane’s hook is approximately a foot off
the deck of the barge. The D-ring weighed at 49.2 pounds as
measured, exactly .8 pounds less than the recommended solo
lift maximum. That measurement, however, only weighed the
D-ring itself and two chain links. In contrast, the lift
method demonstrated at the recreation shows that at its peak
a D-ring lift requires the employee to lift the D-ring plus
four or five chain links. (Rec. Doc. 26-2).
required a transforaminal lumbar interbody fusion because of
his injury. He claims to be permanently unable to perform
offshore work and heavy manual labor because of his injury.
Great Lakes has paid Mingo’s medical expenses pursuant
to its cure obligation.
filed this complaint against Great Lakes under the Jones Act
and for breach of warranty of seaworthiness under general
maritime law. Great Lakes now argues in its motion for
partial summary judgment that it was not negligent and that
the DERRICK 69 was seaworthy.
judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56); Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact
exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398
(5th Cir. 2008). All reasonable inferences are drawn in favor
of the nonmoving party, but a party cannot defeat summary
judgment with conclusory allegations or unsubstantiated
assertions. Little, 37 F.3d at 1075. A court
ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
dispositive issue is one on which the moving party will bear
the burden of proof at trial, the moving party “must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial.” Int’l Shortstop, Inc. v.
Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991) (internal citations omitted). The nonmoving party can
then defeat the motion by either countering with sufficient
evidence of its own, or “showing that the moving