United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
DENISE PAGE HOOD, Judge
21, 2017, Defendant filed a Motion for Summary Judgment.
[Dkt. No. 29] The Motion has been fully briefed. The Court,
having concluded that the decision process would not be
significantly aided by oral argument, previously ordered that
the motion be resolved on the motion and briefs submitted by
the parties. E.D. Mich. L.R. 7.1(f)(2). [Dkt. No. 38] For the
reasons that follow, the Court grants Defendant's Motion
for Summary Judgment.
was hired by Defendant on or about June 14, 2014. He was
certified as fit for duty though September 24, 2015, as
evidenced by a “Seafarers Health & Benefits Plan
Fitness for Duty Certification. Dkt. No. 33, Ex. 3. On March
30, 2015, Plaintiff signed aboard the ITB Bradshaw/St.
Mary's Conquest as a deckhand and supplied a
“Crewmember Declaration” attesting to his fit for
duty status. Dkt. No. 33, Ex. 5.
early April 2015, the hydraulic arms that activated gate
numbers 11 and 12 in hold 6 experienced breakdowns, and they
were not working on April 11, 2015. Dkt. No. 33, Ex. 6 &
7. As a result of those breakdowns, there was cargo overload
on the conveyor belt and massive spillage of cement onto the
tunnel deck of the St. Mary's Conquest on April 11, 2015.
On that day, Plaintiff was responsible for shoveling cement
off of and then back onto the conveyor belt for over 6 hours
straight. Plaintiff states that he was forced to shovel in
cramped and ergonomically hazardous conditions, which caused
pain in his back and fatigue. Plaintiff represents that the
shoveling he had to do as a result of the cargo overload and
spillage was not part of his normal job duties but the result
of a breakdown and malfunction of the vessel's cargo
gates. After shoveling the cement cargo for 6 hours,
Plaintiff had to pound the vessel's cargo holds with a 10
pound sledgehammer, all the while bent over due to the
cramped and ergonomically hazardous conditions.
states that his duties on April 11, 2015 caused him to
sustain injuries to his right shoulder, neck, and back, which
he reported to his immediate supervisor (Courtney King) and
the on watch mate (Talaat Abdelmaguid). In his
“Personal Injury Report To Be Completed By Injured
Employee, ” he indicated that he injured his right
shoulder and back “when use the big hammer to get the
rest of the cement of cargo number 6 and number 3 cargo more
than 4 times per side.” Dkt. No. 33, Ex. 13. According
to several witnesses, “beating” the cargo holds
with a sledgehammer to knock cargo loose was not standard
procedure, though using one to pound or tap the cargo hold
was not unusual. See, e.g., Dkt. No. 33, Ex. 1 at 50
(“It's more of a tapping for an indicating [sic]
that would be the first thing. The pounding to knock cargo
loose, it's not standard to beat on it, it's bang on
it and see if you can get it to move. It's not beating on
it to make it move that way.”). Plaintiff and his
fellow deckhand testified that the pounding had to be in a
bent-over, cramped position and that it could hurt a lot.
Dkt. No. 33, Ex. 10 at 18.
signed off the vessel on April 20, 2015, and he has not
returned to employment with Defendant or undertaken any other
gainful employment since suffering the injuries aboard the
St. Mary's Conquest in April 2015. In May 2015, Plaintiff
was diagnosed with rotator cuff tendinopathy with associated
posterior superior glenoid labral tear in his right shoulder,
as well as cervical and lumbar pain with radiculopathy in his
neck and back. In October 2015, Plaintiff had an invasive
operative procedure, including extensive debridement of the
shoulder, complete synovectomy, AC joint re-section,
acromialplasty, arthroscopic rotator cuff repair, and SLAP
repair. On April 20, 2016, Plaintiff underwent an invasive
surgical procedure on his cervical spine that involved
anterior cervical decompression infusion, C4-C6, and anterior
cervical instrumentation, C4-C6 using Medtronic Zevo anterior
APPLICABLE LAWS & ANALYSIS
Standard of Review
56(a) of the Rules of Civil Procedures provides that the
court “shall grant summary judgment if the movant shows
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). The presence of factual disputes will
preclude granting of summary judgment only if the disputes
are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A dispute
about a material fact is “genuine” only if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Although the Court must view the motion in light most
favorable to the nonmoving party, where “the moving
party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is metaphysical
doubt as to the material facts.” Matsushita
Electric Industrial Co. v. Zenth Radio Corp., 475 U.S.
574, 586 (1986); Celotex Corp. v. Caterett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against
a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial. In such a situation, there can be “no genuine
issue as to any material face, ” since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial. Celotex Corp., 477 U.S. at 322-23.
A court must look at the substantive law to identify which
facts are material. Anderson, 477 U.S. at 248.
claims are brought under the Jones Act and general maritime
law based on a direct physical injury he contends was caused
by the negligence of Defendant and the unseaworthiness of the
ITB Bradshaw McKee/St. Mary's Conquest. The Sixth Circuit
Our application of the Jones Act must follow the judicially
developed doctrine of liability granted to railroad workers
by the Federal Employers' Liability Act
(“FELA”), 45 U.S.C. § 51 et seq. The Jones
Act is modeled after, and specifically incorporates, FELA,
which provides for liability when an injury results “in
whole or in part” from the negligence of the employer.
See 45 U.S.C. § 51. See also
O'Donnell, 318 U.S. at 38, 63 S.Ct. at 489. In
Rogers v. Missouri Pacific Railroad Co., 352 U.S.
500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), the Supreme Court
held under FELA, and by reference the Jones Act, that
“the test of a jury case is simply whether the proofs
justify with ...