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REECER v. MCKINNON BRIDGE CO.

July 31, 1990

JOE FRANK REECER, and his wife, MABLE REECER
v.
McKINNON BRIDGE COMPANY and INGERSOLL-RAND ROCK DRILL DIVISION



The opinion of the court was delivered by: NIXON

 JOHN T. NIXON, UNITED STATES DISTRICT JUDGE

 Pending before the Court are the plaintiff's and the defendants' motions for summary judgment.

 FACTS

 The plaintiff, Joe Frank Reecer, was hired by the defendant McKinnon Bridge Company, Inc. on July 8, 1988 as a construction worker. The plaintiff continued to work for the defendant until the plaintiff was injured on October 5, 1988. The defendant was involved in a road construction project which included the construction of a bridge across the Cumberland River at Carthage, Tennessee. The plaintiff served as a carpenter, general laborer and drill operator while assisting with the construction of the land portion of the bridge until work was completed on the first bridge pier. The bridge was designed with three piers supporting its deck. After the completion of the first pier, the defendant began construction of the other two piers which were built in the river from barges.

 As soon as work began on the second pier, sometime in early August, the plaintiff was reassigned from his land duties to operating a drill on a portable drill barge in the river. The plaintiff operated the drill on the portable drill barge until the date the plaintiff was injured on October 5, 1988. *fn1"

 The defendant maintained approximately four barges, including the portable drill barge, and a tugboat at the construction site to assist in the construction of piers two and three. The portable drill barge on which the plaintiff worked was composed of several sections which could be joined to create barges of different sizes. The sections could be transported to the job site by various means, including by truck and by barge. In the present case, the dismantled sections were transported to Carthage, Tennessee, assembled and then loaded onto a crane barge which was pushed out into the river by towboat. The portable drill barge left the construction site in May of 1989 in tow with another barge.

 During the time in which the plaintiff worked on the portable drill barge, the barge remained moored and tied to a larger crane barge. The crane barge was secured to the river bed by poles called spuds. The portable drill barge was moved up the river only twice during the drilling and that was so that the defendant could dynamite the drill holes. The portable drill barge was moved slightly while moored through the use of winches and lines. The portable drill barge was moved in this way infrequently.

 During the time in which the plaintiff worked for the defendant, the portable drill barge was not used to move materials, or equipment. However, the defendant had used the portable drill barge on previous job sites to transport materials from the bank to the middle of the river. The defendant had also used the portable drill barge in the past to support and transport a crane.

 No structure or equipment was permanently affixed to the portable drill barge or its deck. The portable drill barge did not have kitchen or sleeping facilities.

 The portable drill barge was designed with a rake piece that is attached to form a raked bow, or front. The portable drill barge was also outfitted with kevels, that are used to tie the barge to other barges in tow, and temporary navigational lights.

 The plaintiff worked approximately ten to fourteen hours a day on the portable drill barge. He ate lunch on the portable drill barge.

 DISCUSSION

 I. The Standards for Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

 In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), the United States Supreme Court explained the District Court's function in ruling upon a motion for summary judgment:

 
By its very terms, [the Rule 56(c)] standard provides that the mere existence of some alleged actual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.
 
As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. . . .
 
More important for present purposes, summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. 477 U.S. at 247-8, 106 S. Ct. at 2510. (citations omitted).

 It is likewise true that "in ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent's are indulgently treated. [citations omitted] It has been stated that: 'The purpose of the hearing on the motion for such a judgment is not to resolve factual issues. It is to determine whether there is any genuine issue of material fact in dispute.'" Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). As the Sixth Circuit Court of Appeals stated:

 
Summary judgment may only be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed. R. Civ. P. All facts and inferences to be drawn therefrom must be read in a light most favorable to the party opposing the motion. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.) cert. denied, 444 U.S. 986 [100 S. Ct. 495, 62 L. Ed. 2d 415] (1979).

 Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986). Under these holdings, three questions are to be considered upon a motion for summary judgment: (1) does the plaintiff present sufficient facts to establish all the elements of his claim; (2) are those facts sufficient to support a jury verdict or judgment; and (3) are there any material factual issues with respect to those facts.

 II. The Plaintiff's Jones Act Claim and the Motions for Summary Judgment

 
Any seaman who shall suffer personal injury in the course of his employment, may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply . . .

 46 U.S.C. App. § 688.

 The sole issue which must be resolved in ruling on the parties' motions for partial summary judgment on the plaintiff's Jones Act claim is whether the plaintiff is a "seaman."

 A. Seaman Status

 The Jones Act does not define what type of worker is to be considered a "seaman," thus, the courts have had to determine who has standing to bring an action under the Act. In 1953, the Sixth Circuit Court of Appeals, in Wilkes v. Mississippi River, Sand & Gravel Co., 202 F.2d 383 (6th Cir. 1953), enunciated a three-pronged test for determining seaman status within the meaning of the Jones Act. The test is as follows:

 
1. That the vessel be in navigation;
 
2. that there be more or less permanent connection with the vessel; and
 
3. that the worker be aboard primarily to aid in navigation.

 202 F.2d at 388. See also, Petersen v. Chesapeake & Ohio Railroad Co., 784 F.2d 732, 737 (6th Cir. 1986); Searcy v. E.T. Slider, Inc., 679 F.2d 614, 616 (6th Cir. 1982); and Luckett v. Continental Engineering Co., 649 F.2d 441, 442 (6th Cir. 1981).

 The Sixth Circuit has indicated that in determining whether these requirements have been satisfied that the three elements necessary to constitute a seaman should be liberally construed. Searcy v. E.T. Slider, Inc., 679 F.2d 614, 617 (6th Cir. 1982) ("Liberal construction of the elements of a seaman is not limited to the question of whether one is on board a vessel in aid of navigation.").

 The Supreme Court, in Senko v. La Crosse Dredging Corp., 352 U.S. 370, 374, 77 S. Ct. 415, 417, 1 L. Ed. 2d 404, rehearing denied 353 U.S. 931, 77 S. Ct. 716, 1 L. Ed. 2d 724 (1957), its last decision addressing the question of seaman status, relegated the question of seamen status to the jury (or finder of fact) in most cases:

 
We believe . . . that our decision in . . . [ South Chicago Coal & Dock Co. v.] Bassett [309 U.S. 251, 60 S. Ct. 544, 84 L. Ed. 732] . . . has not been fully understood. Our holding there that the determination of whether an injured person was a 'member of a crew' is to be left to the finder of fact meant that juries have the same discretion they have in finding negligence or any other fact. The essence of this discretion is that a jury's decision is final if it has a reasonable basis, whether or not the appellate court agrees with the jury's estimate.

 Similarly, the Fifth Circuit Court of Appeals has consistently held that the question of whether a worker is a seaman should be decided by the trier of fact. In Bernard v. Binnings Construction Co., Inc., 741 F.2d 824, 827 (5th Cir. 1984) the Fifth Circuit held that the issue of seaman status "should only be removed from the trier of fact (by summary judgment or directed verdict) in rare circumstances . . . and [that] even marginal Jones Act claims should be submitted to the jury." See also, Daniel v. Ergon, Inc., 892 F.2d 403 (5th Cir. 1990); 1B, Benedict on Admiralty § 11a (7th ed. 1989).

 Following along the lines of the Supreme Court's decision in Senko and the decisions of the Fifth Circuit Court of Appeals, the Sixth Circuit has consistently held that the question of a plaintiff's status as a Jones Act seaman is ordinarily a question of fact to be determined by the jury, Petersen v. Chesapeake & Ohio Railroad Co., 784 F.2d 732, 737 (6th Cir. 1986); Searcy v. E.T. Slider, Inc., 679 F.2d 614, 616 (6th Cir. 1982); Luckett v. Continental Engineering Co., 649 F.2d 441, 443 (6th Cir. 1981), and that a district court may determine seaman status, as a matter of law, only where there is no reasonable evidentiary basis to support a jury finding that the plaintiff is a seaman. Petersen v. Chesapeake & Ohio Railroad Co., 784 F.2d 732, 737 (6th Cir. 1986).

 Upon an analysis of the three-pronged Wilkes test, the Court finds that there are genuine issues of material fact concerning whether the plaintiff was a seaman at the time he was injured. Thus, both the plaintiffs' and the defendants' motions for summary judgment must be denied.

 1. The Vessel Must be in Navigation

 A worker claiming seaman status under the Jones Act must first establish that he was employed upon a "vessel in navigation." The structure does not, however, have to be in navigation at the precise moment that the injury to the alleged seaman occurred. 1B, Benedict on Admiralty § 11a (7th ed. 1989). Indeed, the Sixth Circuit Court of Appeals has held that "if a vessel 'is engaged as an instrument of transportation or commerce on navigable waters, that vessel is "in navigation" although moored to a pier, in a repair yard for periodic repairs or while temporarily attached to some object.'" Petersen v. Chesapeake & Ohio Railroad Co., 784 F.2d 732, 738 (6th Cir. 1986) quoting Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 37 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S. Ct. 785, 46 L. Ed. 2d 643 (1976).

 The traditional notion of a type of craft considered to be a vessel *fn2" in navigation is a structure which carries cargo or passengers across water. Bernard v. Binnings Construction co., Inc., 741 F.2d 824 (5th Cir. 1984); Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.), cert. denied, 414 U.S. 868, 94 S. Ct. 175, 38 L. Ed. 2d 116 (1973); 1B, Benedict on Admiralty § 11a (7th ed. 1989). However, the relatively recent advent of special purpose floating structures, such as barges, floating cranes, dredges, and construction platforms, has introduced uncertainty as to what structures within the term "vessel" encompasses. 1B, Benedict on Admiralty § 11a (7th ed. 1989). While these structures do not perform functions normally associated with conventional vessels, they do subject those individuals who work thereon to the same hazards of sea as do traditional vessels.

 The primary gauge for determining if a structure is a vessel in navigation is the purposes for which the craft was constructed and the type of business in which it was engaged. Bernard v. Binnings Construction Co., Inc., 741 F.2d 824 (5th Cir. 1984); Colomb v. Texaco, Inc., 736 F.2d 218, 221 (5th Cir. 1984); 1B, Benedict on Admiralty § 11a (7th ed. 1989). If a structure was designed or used primarily to provide a work platform -- like a dry dock -- then the structure is not a vessel even if afloat. *fn3" Ducrepont v. Baton Rouge Marine Enterprises, Inc., 877 F.2d 393 (5th Cir. 1989); Bernard v. Binnings Construction Co., Inc., 741 F.2d 824 (5th Cir. 1984).

 The defendants argue that the plaintiffs' motion for summary judgment should be denied because the portable drilling barge upon which the plaintiff was working at the time he was injured was not a "vessel in navigation," but rather was a work platform. The defendants cite the following "facts" to support their contention:

 
2. the barge did not transport materials or equipment across navigable waters;
 
3. the barge had no motive power of its own and had to be pushed by tow boat in order to move across navigable waters;
 
4. the barge had no living quarters, kitchen facilities, bilge pumps, or other accoutrement that would indicate that the barge was intended to be employed as a vessel in navigation;
 
5. the barge was moored at the time of the accident; and
 
6. during the four month tenure of the plaintiff's employment the barge was only moved twice.

 The plaintiffs argue that the defendants motion for summary judgment should be denied because the portable drilling barge that the plaintiff was working on at the time he was injured was not a work platform, but rather was a "vessel in navigation." The ...


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