First Circuit Reverses Summary Judgment on Foreseeability Issue

Plaintiff filed suit against Defendant under the Jones Act and general maritime law after her husband fell and drowned after slipping from an obviously hazardous place on a pier while attempting to return to the commercial fishing boat on which he was working. The district court granted summary judgment in favor of Defendant and Plaintiff appealed.

Plaintiff worked as a commercial fisherman. The facility at which the fishing vessel was docked was often locked, causing crewmembers and other employees to enter the facility through an obvious gap in a surrounding fence. After entering through the gap, crewmembers could either walk a lengthy route around the parking lot and building to access the boat, or walk along the waterfront retaining wall and along the pier to access the stern of the boat. Walking along the wall and pier was significantly shorter and more direct, and also more hazardous because snow and ice were not removed from the pier.

Plaintiff maintained that Defendant violated its duty to remedy the hazard of snow and ice on the pier, particularly on the retaining wall from which the deceased fell. The question of whether Defendant owed a duty of care is an issue of law that may be settled on summary judgment if undisputed facts show that the risks posed by the defendant’s actions were not foreseeable. Landowners have a duty to remove snow and ice accumulations even though those accumulations present an open and obvious hazard to visitors. That the hazard is open and obvious does not negate the landowner’s duty to remedy the hazard. A landowner can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. The duty to remedy the danger remains when it is foreseeable that visitors will choose to encounter the hazard despite the open and obvious risks it poses.

Here, the Court of Appeals found that Defendant was not entitled to summary judgment because too many disputed facts existed and there were too many disputed issues. The Court found that the record failed to establish that Defendant did not have any reason to anticipate crew members would attempt to cross the icy pier in this manner. A finder of fact could infer that the landowners knew the gap in the fence existed and knew it was used. The Court held that issue of foreseeability should be submitted to a finder of fact and that summary judgment was not proper.

Cracchiolo v. Eastern Fisheries, Inc., — F.3d —-, 2014 WL 144519 (1st Cir. 2014).

District Court Lacked Federal Question Jurisdiction on 33(g) Issue

Plaintiff sustained an injury that brought him under the purview of the Longshore and Harbor Workers’ Compensation Act (LHWCA).  He received benefits from the insurance carrier, LWCC, for LHWCA benefits.  Plaintiff also sued a third party for negligence in federal district court.

According to Section 933(g) of the LHWCA, a party forfeits any future benefits under the LHWCA if he or she settles with a third party without receiving written approval of the settlement from the LHWCA insurance carrier.  In the instant matter, Plaintiff and the third party reached an agreement at a settlement conference to settle the claim for a proposed amount.  An LWCC representative was present at the settlement conference, and expressed that LWCC would consent to the proposed settlement amount.  The federal district court therefore conditionally dismissed the claim based on the understanding that it had been settled.

Following the settlement conference, LWCC learned that it would likely be left liable for significant future exposure and therefore refused to executed the Form LS-33, which is the written approval for settlement required by Section 933(g) of the LHWCA.  The district court therefore vacated the conditional dismissal, and Plaintiff joined LWCC as a party to its third party claim for negligence.

Plaintiff requested that the federal district court order LWCC to execute the Form LS-33 or find that LWCC waived Section 933(g)’s written approval requirement.  LWCC moved to dismiss for lack of subject-matter jurisdiction.  The federal district court denied LWCC’s motion to dismiss because it found that the waivability of the Section 933(g) written approval requirement created federal-question jurisdiction.

Plaintiff moved for summary judgment and LWCC filed a cross-motion for summary judgment contending that the written approval requirement of Section 933(g) was not waivable.  The federal district court granted summary judgment in favor of LWCC and dismissed the complaint with prejudice, holding that LWCC’s decision to withhold consent on the settlement was a proper exercise of its power under the LHWCA.  Plaintiff appealed this ruling, and LWCC appealed the denial of its motion to dismiss for lack of subject matter jurisdiction.

The Fifth Circuit held that the district court incorrectly found that it had federal-question jurisdiction.  Federal-question jurisdiction exists if the party has asserted a federal cause of action or the party has asserted a state cause of action that necessarily raises a stated federal issue.  Here, Plaintiff did not assert any federal cause of action against LWCC, as Section 933(g) of the LHWCA does not create a private cause of action.  None of Plaintiff’s claims required proving a federal issue as an element of the claim, and Plaintiff failed to show that the state-law claims required proving a substantial federal issue.  The Fifth Circuit therefore reversed the summary judgment and rendered a judgment of dismissal.

Venable v. Louisiana Workers’ Compensation Corp., — F.3d —- (5th Cir. 2013).

Presumption of Negligence Not Applicable

Defendant’s pipe tank broke loose from its mooring to a crane barge and struck a recreational fishing boat, causing injury to Plaintiffs.  Plaintiffs filed a Partial Motion for Summary Judgment on the presumption of negligence.  The Motion was based upon the rule set forth in The Louisiana, 70 U.S. 164 (1865), which imposes a presumption of fault on a vessel that breaks free from its moorings and drifts into a stationary object.  The court found that because the fishing boat was in motion, it did not constitute a “stationary object” and that the presumption therefore did not apply.  Nonetheless, the court stated that the pipe tank would face a considerable challenge in establishing that it was not negligent in a manner that was a proximate cause of the collision.

Nassri v. Inland Dredging Co., 2013 WL 166211 (M.D. La. 2013).

Court Rejects Plaintiff’s Lack of Notice Argument

Plaintiff was working on a barge owned by Defendant when he was injured by a spew rod.  Plaintiff filed suit alleging negligence and unseaworthiness.  Defendant moved for summary judgment on Plaintiff’s claims on the grounds that Plaintiff could not meet the elements of negligence and that there was no cause of action for unseaworthiness under the Longshore and Harbor Workers’ Compensation Act.

Plaintiff did not file an opposition to the motion and the Court granted Defendant’s Motion for Summary Judgment.  Plaintiff thereafter sought reconsideration or relief from the Court’s order granting summary judgment.  Plaintiff contended that he was unaware of Defendant’s motion until the Court issued the order granting the motion.  He stated that the electronic submission from the Court’s CM/ECF system was inadvertently omitted from counsel’s mailbox or was not properly saved prior to deletion.  Defendant opposed the motion on the grounds that Plaintiff’s contentions were not substantial enough to justify relief.

The CM/ECF system stands for “Case Management/Electronic Case Files,” and it is often refered to as “Pacer.”  The CM/ECF system “allows [federal] courts to accept filings and provide access to filed documents over the Internet.”  The idea behind CM/ECF is to provide instant access to files while simultaneously keeping costs low.

Here, the Court denied Plaintiff’s request for reconsideration.  Plaintiff’s counsel elected to receive notice through the Court’s CM/ECF system.  The Court found that there was no evidence that a CM/ECF notice was not issued or that counsel did not receive notice.  The “Notice of Electronic Filing” indicated that notice was electronically mailed to counsel.

Notwithstanding the lack of notice argument, the Court further found that Plaintiff failed to show that the Court erred in its legal and factual analysis.  The Court found that Defendant carried its summary judgment burden in showing that Plaintiff could not prove the required elements of negligence.  Further, Plaintiff’s Motion for Reconsideration failed to raise a genuine dispute as to the material facts. Accordingly, Plaintiff’s motion was denied.

Danos v. Union Carbide Corporation, 2012 WL 5877951 (E.D. La. 2012).