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Weathers v. Triple M Transportation

October 11, 2006

GREG WEATHERS, PLAINTIFF,
v.
TRIPLE M TRANSPORTATION, INC., DEFENDANT.



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

Memorandum Opinion and Order

Before the Court is a motion for summary judgment filed by Third-Party Defendant Martin Marietta Materials, Inc. ("Martin Marietta") to which Third-Party Defendant/Cross-Claimant Marine Terminals of Arkansas, Inc. ("Marine Terminals") responded. Martin Marietta filed a reply to the response. For the reasons stated below, the Court finds the motion should be granted.

Background

On March 9, 2004, Triple M Transportation, Inc.'s ("Triple M"'s) M/V LIMESTONE LADY picked up nine Martin Marietta barges at Natchez, Mississippi. Martin Marietta had hired Triple M to push the barges up the Mississippi River from Natchez to Smithland, Kentucky. The barges were wired together with other barges in the tow of The LIMESTONE LADY to form a thirty-five barge tow. The captain of the LIMESTONE LADY was James Robertson.

One of the barges in the tow of the LIMESTONE LADY was Barge R8890, an empty, "flat deck" rock barge. Martin Marietta was the charter of Barge R8890 at all relevant times. The barge was a "dumb" barge, with no crew and no means of propulsion. In addition to paying Triple M to transport its rock barges, Martin Marietta also paid an additional fee to Triple M for cleaning residual cargo which sometimes remained on the decks of barges after unloading. Triple M and Martin Marietta had an agreement whereby crewmembers of the LIMESTONE LADY inspected the barges for cargo on walkways or work areas, identified barges that needed cleaning, and then cleaned the barges. The primary purpose of removing such residual cargo was the safety of crewmembers working aboard the barges.

During the trip at issue, crewmembers of the LIMESTONE LADY cleaned the decks and walkways of numerous barges in the LIMESTONE LADY's tow. Apparently, residual gravel and small rocks were present on the stern (rear) of Barge R8890 when the LIMESTONE LADY picked it up in Natchez. Captain Robertson testified he could see from the wheelhouse of the LIMESTONE LADY the gravel and rock on the stern deck of Barge R8890 when he first picked it up.

On March 15, 2004, after Barge R8890 had been in the tow of Triple M for five days, the LIMESTONE LADY stopped at a fleet owned and operated by Marine Terminals, located on the Mississippi River near Blytheville, Arkansas. The LIMESTONE LADY made arrangements to drop off three loaded barges owned by another Triple M customer at the Marine Terminals' fleet. According to the evidence, Marine Terminals is a harbor company engaged in the business of building tows, fleeting and shifting barges, and operating a barge cleaning plant. One of its vessels was the AUSTIN STONE. Plaintiff Greg Weathers was a deckhand on the M/V AUSTIN STONE.

At 6:00 a.m. on March 15, crewmembers of the AUSTIN STONE began their work shift. About an hour into the shift, the AUSTIN STONE went out to assist the LIMESTONE LADY in rearranging her tow. Following the removal of the three barges, Weathers and the mate of the AUSTIN STONE began laying and tightening wires on the barges remaining in the LIMESTONE LADY's tow. Weathers stepped onto Barge R8890 near the bow (head) of the barge, then walked down the center. When he reached the stern of the barge, he noticed gravel and small rocks lying on the deck. Although he knew the barge had a hatch cover in the stern area where he would be working, he was unsure of its location, as it was concealed by residual cargo. He proceeded nonetheless.

While working near the port stern corner of Barge R8890, Weathers stepped on an unsecured hatch cover, which he claims not to have seen because it was covered by two to six inches of residual rock cargo. The cover gave way, Weathers' right leg slipped into the hatch and he fell to the deck, injuring his right shoulder. The hatch cover had flipped on its side when Weathers stepped on it. He stopped working and was taken to a doctor. Weathers later underwent two surgeries on his right shoulder.

Weathers filed a complaint on June 9, 2005, claiming negligence and unseaworthiness against Triple M. Triple M filed a third-party complaint against Marine Terminals and Martin Marietta. Marine Terminals filed a counterclaim against Triple M and a cross-claim against Martin Marietta, alleging Barge R8890 was unseaworthy and that Martin Marietta's negligence contributed to Weather's injuries. Triple M dismissed its third-party complaint against Martin Marietta, and the Court previously granted summary judgment to Martin Marietta on Marine Terminals' unseaworthiness claim. Now Martin Marietta seeks dismissal of Marine Terminals' negligence claim.

Summary Judgment

Summary judgment is appropriate when "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." Fed. R. Civ. P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rest on mere allegations or denials of his pleading but must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed. R. Civ. P. 56(e)).

"[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587 (citations omitted). Further, summary judgment is particularly ...


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