Opinion
Civil Action No 00-2307
November 21, 2002
ORDER AND REASONS
Before the Court is defendant Diamond Offshore Drilling's motion for summary judgment. Diamond asserts it was not negligent and that plaintiff is barred from recovery under the Jones Act by the "primary duty" doctrine. For the following reasons, the Court denies defendant's motion.
I. Background
Plaintiff James Sanders worked as a relief steward for ART Catering, Inc., which had contracted with Diamond Offshore Drilling to provide catering and steward services on Diamond's moveable drilling rig, OCEAN QUEST. As a relief steward aboard the OCEAN QUEST, Sanders prepared breakfast and also performed at night those tasks generally performed by the steward during the day. These tasks included managing APT Catering's night staff of approximately five employees. One of these employees, Larry "Pops" Manry, was responsible for mopping the cafeteria floor every day and waxing it once a week.
Sanders started to work aboard the OCEAN QUEST one week before the accident that is at issue in this lawsuit. In the early morning hours of June 3, 1999, Manry hurried to finish mopping and waxing the cafeteria floor before the breakfast rush, which generally came at 5:30 a.m. Sanders was completing breakfast preparations. When he emerged from the galley into the cafeteria with a pan of scrambled eggs, he slipped and fell on the freshly mopped and waxed floor. Sanders asserts that he did not know that the floor was still wet and that no "Wet Floor" signs were on display. Manry asserts that two "Wet Floor" signs were on display, that he told Sanders that the floor was still wet, and that he left a yard-wide strip of the floor unmopped so that Sanders could safely deliver the tray of eggs.
Sanders filed this personal injury lawsuit in federal court against Diamond for negligence under the Jones Act, 46 U.S.C. § 688, and for unseaworthiness under general maritime law. In an amended complaint, Sanders also sued his direct employer, APT Catering, for negligence. Diamond now moves the Court for summary judgment.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993). A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Hunt v. Rapides Healthcare System, LLC, 2001 WL 1650961 (5th Cir. 2001) (citations omitted)
B. Liability Under the Jones Act
The Jones Act affords to seamen the same rights that the Federal Employers' Liability Act ("FELA") affords to railroad workers. 46 U.S.C. § 688; Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997). Under FELA, employees may recover for "such injury or death resulting in whole or in part from the negligence" of the employer. 45 U.S.C. § 51. In Gautreaux, the Fifth Circuit, sitting en banc, clarified that an employer is liable under the Jones act if the negligence of its employees or agents played even a small role in causing the injury or death for which damages are sought. Gautreaux, 107 F.3d at 335 (citing Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448 (1957)). At the same time, the employer's standard of care is not greater than that of ordinary negligence. Id. at 339. In addition, the seaman's duty of care is not a "slight" duty of care to protect himself from the employer's negligence. Id. Rather, the seaman is obliged to act "with ordinary prudence under the circumstances," which include the seaman s own experience, training, or education. Id.
Diamond asserts that plaintiff is barred from recovering under the Jones Act by the "primary duty" rule. The "primary duty" rule, as articulated by Judge Learned Hand in Walker v. Lykes Bros. S.S. Co., 193 F.2d 772, 773 (2nd Cir. 1952), distinguishes the duty that an employee owes to an employer to use reasonable care from the duty that an officer or captain "consciously assume[s] as a term of his employment." Whereas the former duty reduces the employee's amount of recovery, the latter operates as a bar to any recovery at all. Walker, 193 F.2d a: 773; see also Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 905 (9th Cir. 1994). The Court has found no case in which the Fifth Circuit embraced the "primary duty" rule to hold that a seaman is right to recovery is entirely barred by the breach of a duty that the seaman consciously assumes as a term of his employment. In Gautreaux, the relief captain of a vessel was seriously injured when he used a manual crank to relieve tension on his barge's towing wires. The defendant urged the applicability of the "primary duty" rule. Gautreaux v. Scurlock Marine, Inc., 84 F.3d 776, 782 (5th Cir. 1996), reconsidered en banc, 107 F.3d at 338. Upon rehearing en banc, the Fifth Circuit made no mention of the "primary duty" rule and determined that the proper inquiry is whether the employer's negligence in any way caused the employee's injury. See discussion supra; see also Kendrick v. Illinois Central Gulf Railroad Company, 669 F.2d 341, 344 (5th Cir. 1982) (citing the Second Circuit's adoption of the "primary duty" rule but stating that "even if an employee's injury resulted in part from his own negligence, whether in failing to carry out his duties or in some other respect, such negligence would only reduce, not bar, recovery unless the employer were not negligent at all . . . ."). Accordingly, Fifth Circuit precedent indicates that a plaintiff's negligence in failing to perform a duty assumed in the course of employment may reduce, but does not bar, plaintiff's recovery, unless plaintiff's negligence is the sole cause of his injury. So long as the injury was caused at least in part by the negligence of the employer, the employer is exposed to liability. The Court will therefore focus on whether Diamond was negligent and whether Diamond's negligence caused, at least in part, plaintiff's injuries. Gautreaux, 107 F.3d at 335.
Sanders is directly employed by ART Catering, a contractor of the vessel owner, and he sues the vessel owner under the Jones Act for the negligence of a fellow employee of ART Catering. Diamond does not contend that it is not Sanders' Jones Act employer. See Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 452 (5th Cir. 1980) (stating that "a third person who borrows a worker may become his employer if the borrowing employer assumes enough control over the worker"); Speer v. Taira Lynn Marine, Ltd., Inc., 116 F. Supp.2d 826, 828 (E.D.La. 2000). Instead, defendant moves for summary judgment on the ground that it is not responsible for the negligent acts of Manry, who is employed by ART Catering. The Court will therefore assume, for purposes of this motion, that Diamond is Sanders' Jones Act "employer" and will restrict its inquiry to whether a Jones Act employer is liable for the negligent acts of its contractors.
The Jones Act renders an employer liable for the negligence of its "officers, agents, or employees." 46 U.S.C. § 688; 45 U.S.C. § 51. In Hopson v. Texaco, Inc., 383 U.S. 262, 264, 86 S.Ct. 765, 766 (1966), the Supreme Court held that two seamen may recover from their employer for the negligent act of a taxi driver procured by their employer to transport the seamen to the United States Consul's Office. In that case, the Supreme Court held that the Jones Act represents "a departure from the rules of the common law" in that the term "agent" must be given "an accommodating scope." Id. Specifically, "when an employee s injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are `agents' of the employer within the meaning of [the Jones Act]." Id. (internal citations omitted) (emphasis added); see also Archer v. Trans/American Services, Ltd., 834 F.2d 1570, 1573 (11th Cir. 1988) (holding a vessel owner responsible under maritime law for acts of independent contractors performing operational activities). An activity is an "operational activity" if it is necessary or vital to the defendant's operations. Sinkler v. Missouri Pacific R.R. Co., 356 U.S. 326, 327, 78 S.Ct. 758, 760 (1958); Hamilton v. SeaRiver Maritime, Inc., 1995 WL 133335, *3 (E.D.La. 1995)
The parties do not dispute that Diamond contracted with APT Catering to perform catering and steward services. The daily and routine running of a cafeteria is certainly an "operational" activity necessary to the functioning of a rig, where it is not uncommon for seamen, including plaintiff, to live and work for more than one week at a time. The Court concludes that because ART Catering contracted with Diamond to perform an operational activity that is necessary to the functioning or the OCEAN QUEST, Diamond is liable under the Jones Act for the negligence of APT Catering employees.
Further, the Court finds that plaintiff has created a material issue of fact as to whether Manry, an ART Catering employee, was negligent. First, the record indicates that Manry may have been negligent in mopping and waxing the cafeteria floor just before the breakfast rush. Charles Tobey, Diamond's safety rep and medic, testified that he told Manry just one week before the accident that Manry should not mop the floor during busy times. (Pl.'s Opp. to Def.'s Mot. for Summ. J., Dep. or Charles Tobey, 26.) Second, Tobey testified that "[a]nywhere you are mopping you are supposed to have [a `Wet Floor' sign] posted . . . for people coming in from any area." ( Id. at 30.) Manry testified that he put signs out and also told Sanders that the floor was wet. (Def.'s Mot. for Summ. J., Dep. of Larry Manry, at 19-22.) He further testified that he removed the signs before Tobey arrived on the scene of the accident. ( Id. at 36.) Manry's testimony is corroborated by that of Ronald Erwin, another ART Catering employee working in the galley on the day of the accident. ( Id., Dep. of Ronald Erwin, at 16.) Controverting the testimony of Manry and Erwin is that of Sanders, who testified that Manry generally used the signs after mopping but failed to do so on the day of the accident. (Pl.'s Opp. to Def.'s Mot. for Summ. J., Dep. of Sanders, 58-62.) The incident report completed right after the accident took place indicates that Sanders told Tobey that he was "unaware that the floor to the dining room was wet." ( Id. at Ex. B.) Furthermore, Tobey, who arrived on the scene only a few minutes after the accident took place, (Def.'s Mot. for Summ. J., Dep. of Sanders, at 75), testified that signs were not out. (Dep. of Tobey, at 25.) Tobey further testified that "the person that was doing the actual mopping told me he didn't put [the signs] out." (Id.)
To be sure, plaintiff may have been at fault for the accident. After all, one of Sanders' job duties entailed ensuring that Manry maintained the safety of the cafeteria. (Dep. of Sanders, at 34-36; Def.'s Mot. for Summ. J., Ex. 1, Job Descriptions of Steward and Night Cook.) In addition, there is some evidence that Sanders was, at the time of accident, in a rush to get the eggs out for breakfast. (Dep. of Erwin, at 15.) Nevertheless, Diamond is responsible under the Jones Act for Manry's negligence, and plaintiff has created an issue of fact as to whether Manry's negligence caused the accident. The Court denies defendant's motion for summary judgment.
III. Conclusion
For the foregoing reasons, the Court denies defendant's motion.