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Purvis v. Ceres Marine Terminals, Inc.

United States District Court, S.D. Georgia, Savannah Division

April 30, 2019

ALBERT PURVIS, Plaintiff,
v.
CERES MARINE TERMINALS, INC., Intervenor, and MAERSK LINE A/S, Defendant.

          ORDER

          WILLIAM T. MOORE, JR. JUDGE

         Before the Court are Defendant Maersk Line A/S ("Defendant Maersk")'s Motion to Strike Undeclared Medical Expert Testimony and Partial Motion for Summary Judgment (Doc. 45) and Motion for Summary Judgment (Doc. 4 6) . For the following reasons, Defendant's Motion for Summary Judgment (Doc. 46) is GRANTED. As a result, Defendant's Motion to Strike Undeclared Medical Expert Testimony and Partial Motion for Summary Judgment (Doc. 45) is DISMISSED AS MOOT. The Clerk of Court is DIRECTED to close this case.

         BACKGROUND

         This case arises from an injury Plaintiff Albert Purvis sustained while employed as a longshoreman. On December 30, 2015, Plaintiff and his crew of longshoreman were unloading cargo from the M/V Anna Maersk (the "Vessel"). (Doc. 48 at ¶ 1.) The Vessel is owned by Defendant Maersk. (Doc. 53 at 2.) Plaintiff, a senior leader within his union, gave his crew the safety briefing on that day and was working as a lasher-a part of a cargo unloading crew. (Id. at ¶[¶ 2-3.) Prior to December 30, 2015, Plaintiff had worked on the Vessel at least ten times in the past. (Id. at ¶ 4.) Plaintiff was injured when he traversed through a manhole and the hatch cover of the manhole struck his head.[1] (Id. at ¶ 11.) The Captain of the Vessel, Roy Whelan, testified that hatch covers generally operate as follows:

A. Generally speaking we climb up the ladder, the lid would be closed above us. We push it up. And then you click onto the retaining lever. And we would, I would personally then just engage it just to make sure it's not going to, give it a pull before I came through.
Q. Is the retaining lever also known as a safety lock pin?
A. Yes.
Q. It is also known as a latch?
A. Yes.

(Id. at ¶ 5.) Manholes are used to climb between levels of a vessel and Plaintiff has used the hatch covers of the manholes as well as the latching mechanism multiple times before. (Id. at ¶ 6.} Plaintiff also admits that he knows what a hatch cover looks like when they are latched and when they are not. (Id. at ¶ 7.) Plaintiff also admits that he knows to close the latch of a hatch cover and secure it. (Doc. 48 at ¶ 7.) Plaintiff admits that he did not visually inspect the hatch cover before going through it. (Id. at ¶ 20.)

         On the day of his accident, Plaintiff climbed up through a manhole once, worked on the upper level, and then climbed back down through the manhole to retrieve a tool. (Doc. 48 at ¶ 9; Doc. 53, Attach. 4 at ¶ 9.) Plaintiff then began traveling back up towards the manhole and was struck in the head by the hatch cover on his second trip up the ladder and third time through the manhole. (Doc. 48 at ¶ 11; Doc. 53, Attach. 4 at ¶ 11.) The blow resulted in Plaintiff falling to the platform below. (Doc. 53 at 3.) Other than Plaintiff, no one witnessed his fall. (Id. at 4.) Plaintiff claims that, as a result of this incident, he suffered spinal cord compression in his neck which required a multilevel cervical discectomy and fusion surgery. (Id.) Additionally, due to his injuries, Plaintiff was unable to work for a year. (Id.)

         In its Motion for Summary Judgment (Doc. 46), Defendant maintains that it did not breach any duty owed to Plaintiff. First, Defendant argues that it did not violate the duty to turnover a reasonably safe ship because the alleged defect that injured Plaintiff, the open and unlatched hatch cover, was open and obvious. (Doc. 46 at 15.) Defendant also argues that it did not breach the active control duty because there is no evidence that its crew members exercised control over the longshoremen's work. (Doc. 46 at 13-14.) Finally, Defendant contends that there was no duty to intervene because none of its crewmembers were present or observing Plaintiff's performance of his work. (Doc. 46 at 14-15.)

         Plaintiff, however, argues that the turnover duty was violated because (1) the subject hatch was defective, or (2) even if the latch was not defective, Defendant's crew members "must have" opened the hatch cover and left it unlatched and thereby created an unreasonable hazard. (Doc. 53 at 9-12.) Plaintiff does not offer any arguments that Defendant breached the active control duty. Plaintiff does, however, maintain that Defendant had a duty to intervene in that Defendant had a duty to close the hatch cover, ensure that the hatch cover latch was engaged and secure, or replace the hatch. (Doc. 53 at 12.)

         In its Motion to Strike Undeclared Medical Expert Testimony and Partial Motion for Summary Judgment, Defendant argues that it is entitled to summary judgment on any medical expenses Plaintiff claims as damages beyond his immediate, short-term treatment including, but not limited to, a spinal surgery that Plaintiff underwent. (Doc. 45 at 2.) Defendant also reguests that this Court strike any medical experts proffered by Plaintiff because Plaintiff did not declare any medical experts either by the court set deadline of February 28, 2018 or by the time Defendant filed its motion on August 17, 2018. (Id.) Because this Court grants Defendant's Motion for Summary Judgment (Doc. 46), the Court does not address Defendant's motion to strike and partial motion for summary judgment.

         ANALYSIS

         I. SUMMARY JUDGMENT STANDARD

         Summary judgment shall be rendered "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56 advisory committee notes). Summary judgment is appropriate when the nonmovant "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." Celotex Corp. v. ...


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