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Mingo v. Great Lakes Dredge & Dock Co., LLC

United States District Court, E.D. Louisiana

September 26, 2019

GERALD MINGO
v.
GREAT LAKES DREDGE & DOCK COMPANY LLC OF LOUISIANA

         SECTION: “J” (4)

          ORDER & REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE.

         Before 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.

         FACTS AND PROCEDURAL BACKGROUND

         This 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).

         Other 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.

         As part 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, [1] is 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.[2] The SALT manual further recommends no solo lifts on objects over 50 pounds. (Rec. Doc. 31-9).

         One of 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).

         The day 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).

         Mingo 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.

         Mingo 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.

         LEGAL STANDARD

         Summary 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.

         If the 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 ...


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