Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thomas v. Riverfront Limestone, LLC

United States District Court, W.D. Kentucky, Paducah

March 21, 2018



          Thomas B. Russell, Senior Judge United States District Court

         This matter comes before the Court on Defendant Riverfront Limestone, LLC's, (“Riverfront”), Motion for Summary Judgment, [R. 60]. Plaintiff David S. Thomas and Dorothy L. Harris, (“Thomas”), responded, [R. 69], and Intervenor Plaintiff Kentucky Associated General Contractors also responded, [R. 68]. Riverfront replied. [R. 71.] Fully briefed, this matter is now ripe for adjudication. For the reasons stated herein, Riverfront's Motion for Summary Judgment, [R. 60], is GRANTED.


         On a cold day in December of 2011, David Thomas, a welder and mechanic at Harold Coffey Construction, was instructed by his supervisor, Mike Hopper, to fix a safety rail on a barge owned by Riverfront Limestone. [R. 49-2 at 8, 74 (Thomas Depo.); R. 1 at 2 (Complaint).] The barge in question is a single skin tank barge built in the 1960's for transporting hazardous and flammable liquid cargo. [R. 60-2 at 5 (Haynes Report); R. 60-3 at 8 (Smith Report); R. 60-6 at 8 (Coffey Depo.).] It was purchased in 2006 or 2007 by Riverfront and converted into a dock for unloading cargo from barges, such as coal, lime, and clay. [R. 60-6 at 8; R. 60-4 at 2-3 (Sanders Depo.); R. 60-5 at 20 (Williams Depo.).][1] The structure is connected to land by two shore wires and a ramp by which trucks can drive onto the structure. [R. 60-6 at 4.] There is no electrical, water, or sewage connection to shore. [Id.] Depending on the water level of the river, the structure is occasionally moved by trackhoe and a cable between a low water ramp and mid water ramp, a distance of about thirty feet. [R. 71-1 at 2 (Coffey Affidavit); R. 69-1 at 4 (Williams Depo.), 11 (Lynch Depo.), 31 (Sanders Depo.).] Approximately once a year, the structure is moved by tugboat to a high water ramp approximately 400 feet away from the mid water ramp. [R. 71-1 at 2.] On one occasion, due to extremely low water conditions, the structure was dredged by the Army Corps of Engineers approximately 2000 feet to a different location. [Id. at 2-3.] On the deck is a container and equipment for unloading barges, such as an excavator, a Caterpillar “Bobcat, ” and a diesel powered generator. [R. 60-6 at 3; R. 49-2 at 15; R. 60-2 at 7.] The deck of the structure has a safety cable system on three sides consisting of cables threaded through stanchion pipes. [R. 49-2 at 18.] It was one of these pipes that Thomas was to repair on the day of the incident.

         Repairing the stanchions of the safety rail system was nothing new to Thomas. He testified that he previously boarded the structure 75-100 times and repaired the stanchions about six times. [Id. at 66-67.] On the day of the incident, Thomas pulled up to the bank of the river, grabbed a tape measure, and walked out on the structure to evaluate the situation. [Id. at 26.] At the time, no one else was present on deck. [Id. at 30.] Thomas noticed some stanchions that were lying on the deck with the cables still threaded through them. [Id. at 29.] When Thomas picked up one of the stanchions to inspect it, his feet became entangled in the cables and he fell overboard. [Id. at 31.] Thomas testified that the initial shock of the cold water “rendered [him] helpless.” [Id. at 36.] Thomas claims that he remained in the water for approximately ten minutes. [R. 1 at 2.] During that time, Thomas alleges that “his head went under the water several times, he ingested river water and diesel fuel, and he suffered hypothermia.” [Id.]

         On October 10, 2014, Thomas filed a Complaint against Riverfront under § 905(b) of the Longshore and Harbor Workers Compensation Act, (“LHWCA”), 33 U.S.C. § 905(b). [Id. at 3-4.] Riverfront file a Motion for Summary Judgment on July 19, 2017, arguing that Riverfront did not owe a duty to Thomas. [R. 49-1 at 2 (First Motion for Summary Judgment).] On September 22, 2017, Riverfront filed a second Motion for Summary Judgment on the structure's status as a vessel, [R. 60], which the Court addresses in this memorandum.


         Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “may not make credibility determinations nor weigh the evidence when determining whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251-52).

         As the party moving for summary judgment, the defendant must shoulder the burden of showing the absence of a genuine dispute of material fact as to at least one essential element of the plaintiff's claims. Fed.R.Civ.P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Assuming the defendant satisfies his or her burden of production, the plaintiff “must-by deposition, answers to interrogatories, affidavits, and admissions on file-show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex Corp., 477 U.S. at 324).


         Riverfront argues that the structure where Thomas fell into the Mississippi River is not a vessel under the LHWCA, and, therefore, Thomas's claim of “negligence of a vessel” must be dismissed. [R. 60-1 at 2.] Thomas and KAGC respond that the structure is a vessel, and, therefore, § 905(b) is applicable to the matter at hand. [R. 69 at 17-18; R. 68 at 5.]

         A. The LHWCA

         Section 905 of the LHWCA states:

In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.