United States District Court, D. Alaska
ORDER AND OPINION [Re: Motion at docket 172]
JOHN
W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT
I.
MOTION PRESENTED
At
docket 172 Defendants Shell Oil Company and Shell Offshore,
Inc. (“Shell”) move for summary judgment as to
the claims brought against Shell by Plaintiff Blane Barry
(“Plaintiff”). Plaintiff responds at docket 179.
Shell replies at docket 184. Oral argument was not requested
and would not assist the court.
II.
BACKGROUND
This
matter arises out of a claim for personal injuries sustained
by Plaintiff in August of 2012 while he was working aboard
the M/V NORDICA for EPS Cargo Handlers or EPS Logistics
(collectively “EPS”) as a lead rigger. The
NORDICA was owned by Arctia Offshore, Ltd.
(“Arctia”). Arctia supplied the vessel via a
Master Time Charter with Defendant Shell Offshore, Inc.
(“Shell”) to aid Shell with marine oil field
support and transportation services. Plaintiff alleges in his
complaint that he seriously injured his back and neck while
lifting a heavy cable at the request of another crew member
on board the vessel. He seeks damages for lost earnings, lost
earning capacity, past and future medical expenses, and
“physical and emotional pain and suffering and loss of
enjoyment of life.”[1] Shell contends that it cannot be held
liable for the actions of persons who did not work for Shell
and were not otherwise controlled by Shell.
III.
STANDARD OF REVIEW
Summary
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”[2] The materiality requirement
ensures that “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary
judgment.”[3] Ultimately, “summary judgment will
not lie if the . . . evidence is such that a reasonable jury
could return a verdict for the nonmoving
party.”[4] However, summary judgment is mandated
“against a party who 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.”[5]
The
moving party has the burden of showing that there is no
genuine dispute as to any material fact.[6] Where the
nonmoving party will bear the burden of proof at trial on a
dispositive issue, the moving party need not present evidence
to show that summary judgment is warranted; it need only
point out the lack of any genuine dispute as to material
fact.[7] Once the moving party has met this burden,
the nonmoving party must set forth evidence of specific facts
showing the existence of a genuine issue for
trial.[8] All evidence presented by the non-movant
must be believed for purposes of summary judgment and all
justifiable inferences must be drawn in favor of the
non-movant.[9] However, the non-moving party may not rest
upon mere allegations or denials but must show that there is
sufficient evidence supporting the claimed factual dispute to
require a fact-finder to resolve the parties' differing
versions of the truth at trial.[10]
IV.
DISCUSSION
Plaintiff
alleges that his spinal injuries on board the NORDICA
occurred as a result of helping another crew member, Jens
Boel Fischer, lift a crane cable spool on deck. Fischer was
one of the crane technicians aboard the vessel. During his
deposition, Plaintiff testified that he was approached by
Fischer to help secure and clean up items on NORDICA's
deck in advance of impending adverse weather. There were
miscellaneous items to pick up or secure and a large spool of
crane cable that needed to be moved. He admitted at his
deposition that only Fischer asked him to help and that he
did not know whether anyone had asked Fischer to complete
such a task.[11]He admitted that no officers, captains or
members of the navigational team were involved in the deck
clean up or directed him to engage in such
efforts.[12]
Plaintiff
agreed to help Fischer clean up, believing that Fischer was
an employee of Arctia and that he had to comply with
Fischer's directions because Fischer was one of the crane
operators while he was a rigger.[13] Plaintiff admitted that
Fischer did not indicate that he was Plaintiff's
superior.[14] Given these undisputed facts,
Plaintiff's alleged injuries stem from moving the heavy
cable spool as requested and supervised solely by Fischer.
Shell
contends that Barry was not injured aboard the NORDICA, but
had a preexisting condition. Shell relies on the deposition
testimony of Roger Hale, the medic aboard the ship. Barry saw
Hale on August 22, 2018, complaining of neck and shoulder
pain. Hale's testimony is based on notes he made while
seeing Barry. According to Hale, at that time Barry denied
being in an accident on the ship, and indicated that his pain
was a pre-existing condition.[15] Shell also relies on the
deposition testimony of Bernard Wiltz, III who worked for EPS
in Louisiana. According to Wiltz, Barry called to complain of
neck pain while aboard the NORDICA, but Barry associated it
with how he was sleeping on the ship, and Barry denied there
was any accident.[16]Their testimony is contrary to
Barry's deposition testimony which indicates that he was
injured while helping another person try to lift and move the
heavy cable spool over a step into the fo'c'sle of
the NORDICA.[17] Applying summary judgment principles for
purposes of this motion, the court must accept Barry's
testimony that he was hurt in an accident aboard the ship.
Shell
played no direct role in the accident described by Plaintiff.
Plaintiff's own testimony[18] and the absence of any
contrary evidence establishes that as an undisputed fact.
Plaintiff seeks to impose liability on Shell vicariously. The
man who asked Plaintiff to help move the cable spool was Jens
Fisher. He was employed by FANØ KRAN
(“FANØ”), which was a subcontractor to
Arctia responsible for crane operations on the vessel. Shell
contends that it did not exercise control over Fisher and
therefore it cannot be vicariously liable for his negligence.
Indeed, “it is recognized doctrine under the general
maritime law that a principal cannot be held liable for the
independent negligence of an independent
contractor.”[19] Under Alaska law, “an owner or
employer does not normally incur liability for physical harm
stemming from the negligence of an independent
contractor.”[20] In some instances, however, liability
can be imposed on the employer of an independent contractor:
if the entity who entrusts work to an independent contractor
retains control over any part of the work it can be liable
for harm to others caused by a failure to exercise such
control with reasonable care.[21] The court incorporates the
reasons and the authorities cited by Shell in its reply memo
at docket 184 as its rationale for holding that Shell is not
subject to vicarious liability for the accident.
Whether
Shell may be liable for possible exacerbation of Barry's
condition for directing that he be transported to shore by
boat must still be considered. Unlike Plaintiff and SMS in
its second motion for summary judgment, which assume there is
such a claim before the court, Shell argues that there is no
claim before the court for damages based on the trip to shore
aboard a fast rescue boat. Shell relies on the absence of any
claim for damages arising from the boat ride in
Plaintiff's amended complaint. Shell is correct. The
amended complaint contains no allegations related to the boat
ride.[22] Plaintiff has not sought to further
amend the complaint. The time for motions to amend has long
since passed.[23] Furthermore, as Shell ...