United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 173]
JOHN
W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT
I.
MOTION PRESENTED
At
docket 173 defendant Safety Management Systems, LLC
(“SMS”) moves for summary judgment as to the
claims brought against it by Plaintiff Blane Barry
“Plaintiff”). The motion is supported by a
memorandum at docket 174. Arctia Offshore, Ltd.
(“Arctia”) responds at docket 177. Plaintiff
responds at docket 180. SMS replies at docket 182. 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 defendant 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]
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 heavy cable as requested and supervised solely by
Fischer.
In an
order at docket 155, the court granted summary judgment to
Arctia. However, the court denied SMS' first motion for
summary judgment at docket 144. The court explained its
decision to deny SMS ‘ motion as follows:
Two central factual questions remain in dispute necessitating
the presence of SMS as a Co-Defendant in this case. Joshua
Wyatt was the safety representative assigned to the vessel by
SMS. His duty and responsibility regarding safety on the
NORDICA and the duty and responsibilities of SMS in
relationship to Shell are issues that remain in
dispute.[15]
The
lengthy contract between Shell and SMS is comprised mainly of
standard form provisions used by Shell for an array of
different contractors.[16] Most pertinent to the matter at hand
the contract (1) expresses Shell's “‘Goal
Zero' [which ] means the principle of relentlessly
pursuing no harm to people and no significant
incidents”[17]; (2) obligates SMS to be aware of Goal
Zero;[18] and (3) requires SMS to provide the
services of an HSE technician upon Shell's
request.[19] The goal of no harm to people and
SMS' obligation to provide the HSE representative is
sufficient to establish that SMS had a duty to persons on the
NORDICA to seek to assure their safety.
SMS'
employee Joshua Wyatt was the HSE safety technician on the
NORDICA. In that role Wyatt's duty was to assure that
operations on the vessel were conducted safely. At his
deposition, Wyatt testified he was on the vessel to insure
that Shell's policies and procedures were followed to
make sure things were done in a safe manner.[20] Before any
activity was undertaken, even basic cleaning such as mopping
or sweeping, there was to be a pre-job safety discussion of
the activity and a joint safety assessment
(“JSA”) prepared.[21] Wyatt was to be involved in
the JSA process and would have some oversight to see that the
work was done safely.[22] Wyatt was expected to attend daily
meetings on the vessel and to participate in round-table
discussions to learn what was going on aboard the
ship.[23]
The
NORDICA is an ice breaker and around the time of the accident
there was no ice management to be done. So basically, the
vessel was waiting for the time when ice-breaking would be
needed.[24] Wyatt testified that there was nothing
going on aboard the NORDICA on the day of Barry's
injury.[25] Wyatt said that because there was no
work being done, there was no JSA.[26] Hence, in Wyatt's
view he had nothing to review or oversee.
While
it is clear that the NORDICA had no ice management duties to
perform in August of 2012, it cannot accurately be said that
there was nothing going on aboard the vessel. For one thing,
sound source devices were being deployed on the seabed in
August.[27] Beyond that, there were routine
maintenance chores being done daily.[28]Also, there is the
activity in which Barry was injured when helping Fisher move
the crane cable spool.[29] Drawing all justifiable inferences
from these facts in favor of non-movant Barry supports the
conclusion that Wyatt was negligent in the discharge of ...