Christopher Gregory v Kirby Inland Marine, LP
Plaintiff, Christopher Gregory, was employed by defendant, Kirby Inland Marine, LP ("Kirby"). Gregory was working as a deckhand aboard the Kirby-owned tug, M/V The City of New Orleans. He allegedly suffered injuries to his elbow, shoulder, and back while attempting to release a securing wire back to a barge that was secured to the tug.
Gregory was standing at the front of the tug and two barge employees were standing opposite Gregory. The employees were to pull the wire in after Gregory threw it in the water. However, Gregory alleged that immediately after he unlooped the wing wire, the employees pulled the wire. Gregory's hand was caught in the loop of the wing wire and he was jerked from a kneeled position and eventually fell to the dock.
Kirby contended that Gregory can prove neither negligence nor unseaworthiness. In support of his argument, Kirby showed evidence from Gregory's deposition, which stated he blamed no one at Kirby for his accident. Further, Kirby argued that they were not obligated to pay maintenance and cure because Gregory failed to disclose prior pain and injuries in the pre-employment Health Questionnaire. Kirby moved for summary judgment.
Gregory asserted that Kirby is liable for the actions of the barge employees. He also stated that Kirby was directly negligent, as the supervisor had a duty to supervise Gregory and other employees while they worked. In addition, Gregory alleged that Kirby breached its duty of seaworthiness by failing to provide a competent crew. Finally, Gregory argued that the injuries he failed to disclose were not significant injuries requiring disclosure.
Whether the Court will grant Kirby's motion for summary judgment on the claims of (1) negligence, (2) seaworthiness, and (3) maintenance and cure.
The Court held that Kirby's motion for summary judgment for negligence was denied. Genuine issues of fact existed as to whether the supervisor employed by Kirby was negligent. The deposition testimony given as evidence by Kirby appeared to be leading and little about the accident was addressed in the deposition testimony. This Court held that there were possible issues of contributory negligence, which indicated issues of material fact. Thus, summary judgment was denied for the negligence claim.
The Court next addressed the summary judgment motion for seaworthiness. A vessel is unseaworthy if presents an unreasonable risk of harm to a seaman. Although Gregory asserted that the employees of the barge were incompetent, he provided no evidence. In fact, deposition testimony showed that he blamed no one at Kirby for the accident. Therefore, the Court granted Kirby's motion for summary judgment on the issue of seaworthiness.
Next, the Court looked at the issue of maintenance and cure, and held that summary judgment should be denied. Gregory alleged that he injured his elbow, shoulder, and lower back. During his pre-employment Health History Questionnaire, Gregory checked "no" in response to any prior injuries related to his elbow, shoulder, or lower back. The physician noted that Gregory had injured his elbow at age 15. The Court held that more time was needed to determine the nature of Gregory's past injuries, and how they may have affected his current injuries. Thus, this Court denied summary judgment on the issue of maintenance and cure.
A Jones Act employer must provide its employees with a reasonably safe place to work. The duty of care owed by an employer under the Jones Act is ordinary prudence, that is, to take reasonable care. Lack of knowledge that a workplace is "reasonably safe" is a sufficient defense only when the employer has exercised due care under the circumstances.
Pre-employment medical examinations or interviews are often required by the shipowner before a prospective employee is hired. If the seaman intentionally misrepresents or conceals important medical facts, then he is not entitled to an award of maintenance and cure.
However, when a shipowner does not require a pre-employment examination, the rule is that a seaman must disclose a past illness or injury only when in his own opinion the shipowner would consider it a matter of importance (McCorpen v Central Gulf Steamship Corp., 396 F.2d 547).
Steve Gordon
http://www.offshoreinjuries.com
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