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Weatherly v. ACBL River Operations, LLC.

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

April 6, 2018



          Thomas B. Russell, Senior Judge United States District Court.

         This matter comes before the Court upon Motion by Defendant ACBL River Operations, LLC, (“Defendant”), for summary judgment. [DN 21.] Plaintiff Teresa Weatherly, (“Plaintiff”), has responded, [DN 24], and Defendant has replied. [DN 25.] This matter is ripe for adjudication and, for the following reasons, IT IS HEREBY ORDERED that Defendant's Motion, [DN 21], is DENIED as to Plaintiff's claims for negligence under the Jones Act and for unseaworthiness, and GRANTED as to Plaintiff's claim for maintenance and cure.

         I. Background

         This case arises out of events occurring on or around September 16, 2015. [DN 10, at 1.] Plaintiff was employed by AEP River Operations as a cook and “was assigned to the M/V Leader for approximately two and a half years prior to the…incident.” DN 21-1, at 1.] “The M/V Leader's home port was Paducah, Kentucky.” [Id.] Plaintiff was scheduled to have twenty-eight days of leave, starting on the day of the incident, and was preparing to disembark the M/V Leader when she was allegedly injured. [Id. at 2.]

         That morning, Plaintiff had prepared breakfast for the vessel's crew and had cleaned up the galley afterwards. [DN 19, Weatherly Dep., p. 64.] This included prepping the crew's lunch and unloading the dishwasher. [Id. at 67-68.] After doing this, Plaintiff went upstairs to take a shower and, after getting cleaned up, returned to the galley to retrieve some personal belongings. [Id. at 65.] She was “off watch” at this time. [Id.] Upon returning to the galley, Plaintiff picked up some dishes that were air-drying on the galley's island in order to move them to the galley table. [Id. at 67-68.] According to Plaintiff's deposition testimony, “[a]s I [Plaintiff] was going to the table, I slipped on something wet, my leg went out away from me and back behind me, all the plates broke. And that's when I knew that I had done some damage because I couldn't get up.” [Id. at 68.] Plaintiff also testified in her deposition that the plates themselves were dry, she does not know what kind of substance she slipped on, how it got there, how long it had been there, or how much of it was there. [Id. at 70-71.] Plaintiff further testified that the weather that day was nice and so nothing wet would have been tracked into the galley, and that the floor had not been mopped that morning. [Id. at 72.]

         When she slipped and fell, Plaintiff was wearing flip-flops and not the footwear that AEP River Operations required her to wear on the job. [Id. at 73.] After she fell, another crew member, Curtis Kuprel, who was the Second Mate of the M/V Leader at that time, entered the galley and assisted her. [Id. at 75.] Plaintiff was removed from the vessel and taken by ambulance to a Paducah area hospital. [Id. at 76.] Plaintiff testified in her deposition that there was no delay in her evacuation from the vessel and that she has no criticism of the “efforts that were made to assist [her] after the injury.” [Id. at 76-77.] It was later determined that she had torn her hamstring. [Id. at 80.] On November 30, 2015, Plaintiff was cleared by her doctor to return to work after a “return-to-work-physical, ” but she did not begin working until February because she had bronchitis at the end of the year. [Id. at 80-81.] Plaintiff was assigned, against her wishes, to a new vessel in West Virginia, but only worked on the vessel for around a month because at that time she began to suffer from severe depression. [Id. at 89-90.] She testified at her deposition that she felt “betrayed” and “humiliated” because she lost her position on the M/V Leader, whose home port is Paducah, about one and a half hours from her home, and was reassigned to the West Virginia vessel, whose home port is around eleven hours from her home. [Id. at 95-96.] During the period of time between September 2015 when Plaintiff was injured and February 2016 when she returned to work, she was paid short-term disability (i.e., her normal pay), and testified that she did not lose any pay during that time period. [Id. at 128.] She also testified that she did not personally incur any medical expenses relating to the injury. [Id. at 128-29.]

         When asked what AEP River Operations did or failed to do that caused her injury on the vessel, Plaintiff responded: “I think that those boys should have to put down their phones and go in there and clean up the galley like they should after every meal. According to the captain on the boat [that] is how the boat gets taken care of.” [Id. at 129-30.] In essence, Plaintiff testified in her deposition that the deckhands, who are responsible for cleaning the galley, were inattentive that morning and were using their cellphones instead of doing their job. [Id.] Plaintiff conceded that she had not asked them to go ahead and clean up the galley on the morning in question. [Id. at 129.] Plaintiff voluntarily resigned her post on July 3, 2017 for personal reasons. [DN 20, Weatherly Con't Dep., p. 4.] On October 30, 2017, she was hired as a lineboat cook for Artco. [Id. at 5.] Plaintiff's new home port is Saint Louis, Missouri. [Id. at 6.] She is no longer receiving medical treatment with respect to the hamstring injury she suffered while working for AEP River Operations. [Id. at 8-9.]

         II. Legal Standard

         Summary judgment is proper where “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.” Fed.R.Civ.P. 56(c). When examining whether a motion for summary judgment should be granted, the court is required to resolve all ambiguities and draw all reasonable inferences against the movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, “not every issue of fact or conflicting inference presents a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). Rather, the question is whether the party who bears the burden of proof in the case has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).

         This means that the plaintiff must present to the court more than a mere scintilla of evidence supporting her position. Id. Indeed, the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. Id. It is not enough for a plaintiff to present speculation as to elements of the case, because “the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).

         III. Discussion


         Plaintiff's first claim is for negligence under the Jones Act. “The Jones Act…authorizes seamen to maintain negligence actions for personal injury suffered in the course of employment.” Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 907 (6th Cir. 2006). It “incorporates all portions of FELA [the Federal Employers Liability Act] that modify and extend the common law as applied to actions by railroad employees.” Id. Therefore, “under the Jones Act, an employer has a duty to provide a safe workplace for its employees, and to prevail under the Jones Act, a ‘plaintiff must show that her employer [breached this duty by] failing to provide a safe workplace by neglecting to cure or eliminate obvious dangers of which the employer or its agents knew or should have known.'” Id. (quoting Rannals v. Diamond Jo Casino, 265 F.3d 442, 449-50 (6th Cir. 2001)).

         “Proof of negligence (duty and breach) is essential to recovery under the Jones Act.” Perkins v. Am. Elec. Power Fuel Supply, Inc.,246 F.3d 593, 598 (6th Cir. 2001) (citing Jacob v. City of New York,315 U.S. 752, 755 (1942)). And “[w]hether an employer is negligent is determined under the ‘ordinary prudence' standard normally applicable in negligence cases.” Id. (citing Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997)). Where the two standards diverge, however, is on the causation prong: in a Jones Act negligence case, “once the plaintiff proves negligence, he need only show that his employer's negligence is the cause, in whole or in part, of his injuries…In essence, there is a reduced standard for causation between the employer's negligence and the employee's injury.” Id. (internal citations omitted). In order “[t]o recover, [though, ] the plaintiff must first establish ‘the breach of a duty to protect against foreseeable risks of harm.” Id. at 599 (quoting Hernandez v. Trawler Miss Vertie Mae, Inc.,187 F.3d 432, 437 (4th Cir. 1999)). If the “plaintiff establishes that the employer breached his or her duty ...

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