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Clark v. W & M Kraft

January 10, 2007


The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge


This matter is before the Court on Defendant Consolidated Grain and Barge Company's Motion for Summary Judgment (doc. 70), Plaintiffs' Response in Opposition (doc. 87), and Defendant's Reply (doc. 95). The Court held a hearing on Defendant's motion on December 20, 2006.

There are also a number of other pending motions before the Court in this matter: Defendant W & M Kraft, Inc.'s Motion for Summary Judgment (doc. 59), Plaintiffs' Response (doc. 65), and Defendant's Reply (doc. 69); Defendant Kraft's Motion for Summary Judgment on Plaintiff Kelly Clark's, as Natural Guardian of C.A.C., Loss of Consortium Claim (doc. 96), DB Industries, Inc.'s Joinder in W & M Kraft, Inc.'s Motion for Summary Judgment (doc. 98), Plaintiffs' Response (doc. 105), and Defendant's Reply (doc. 105); Defendant Ingram Barge Company's Motion for Summary Judgment (doc. 101), Plaintiffs' Response (doc. 107), and Defendant's Reply (doc. 111); DB Industries, Inc.'s Motion for Summary Judgment (doc. 102), Plaintiffs' Response (doc. 106), and Defendants' Reply (doc. 110).

For the reasons indicated herein, the Court DENIES Consolidated Grain and Barge Company's Motion for Summary Judgment (doc. 70), DENIES W & M Kraft, Inc.'s Motion for Summary Judgment (doc. 59), GRANTS W & M Kraft, Inc.'s Motion for Summary Judgment on C.A.C.'s Loss of Consortium Claim (doc. 96), DENIES Ingram Barge Company's Motion for Summary Judgment (doc. 101), and DENIES DB Industries, Inc.'s Motion for Summary Judgment (doc. 102).


This case involves claims against multiple Defendants as a result of Plaintiff Charles Clark's fall while employed by Consolidated Grain and Barge ("CGB") from a "cell tower" onto a barge in the Ohio River, on December 16, 2004 (doc. 22). Mr. Clark's fall resulted in severe injuries that have caused him great suffering and have required him to incur substantial medical expenses (Id.). He and his wife, Kelly Clark, and their minor son, "C.A.C," seek judgment jointly and individually, lost wages past and future, pain and suffering past and future, expenses, court costs, reasonable attorney fees, punitive damages, pre- and post-judgment interest and maritime maintenance and cure (Id.). Plaintiffs' fifteen-count Amended Complaint includes claims under the Jones Act, 46 U.S.C. § 688, the Longshore & Harbor Workers' Compensation Act, ("LHWCA") 33 U.S.C. § 905(b), as well as pendent state law claims for negligence, design defect, failure to warn, and loss of consortium (Id.).

Defendant CGB is a Louisiana corporation that operates a grain-handling facility in Cincinnati. Defendant W & M Kraft, Inc. ("Kraft") is a South Carolina corporation that provided safety consulting services to CGB under a contract from August 2003 to August 2004. Defendant Ingram Barge Company ("Ingram") is a Tennessee corporation that owned the barge vessel upon which Plaintiff was injured. Defendant DB Industries, Inc. ("DBI") is a Minnesota corporation that manufactures and sells fall protection devices. As Plaintiffs are residents of Kentucky, and there is no dispute that the injuries occurred in Ohio, or that the injuries in question surpass the requisite jurisdictional threshold, the Court has both diversity and federal subject matter jurisdiction, as well as pendent jurisdiction over the state claims. 28 U.S.C. §§ 1332, 1333, et seq.

Defendant CGB's Motion for Summary judgment is premised on the theory that Charles Clark does not qualify as a Jones Act seaman as a matter of law, but rather qualifies as a longshoreman (doc. 70). Therefore, in CGB's view, Charles Clark is only entitled to benefits it has already provided him under the LHWCA, 33 U.S.C. §§ 901, et seq. (Id.). At the hearing, Defendant argued that Clark cannot prove he had a substantial connection to a vessel of navigation or to an identifiable fleet, as his employment status was that of a general laborer.

Defendant Kraft brings two motions for summary judgment. In its first motion, it argues that it owed no duty to Plaintiffs and that in its view, there is no causal link between its provision of safety consulting services to CGB and Charles Clark's accident (doc. 59). Its second motion attacks the consortium claim brought on behalf of the Clarks' minor son, "C.A.C.," because the child was not yet conceived at the time of the accident (doc. 98).

Defendant Ingram argues it is entitled to summary judgment because, for all the reasons raised by CGB, Charles Clark does not qualify as a seaman. Ingram argues that even should Clark so qualify, he cannot pursue a claim for unseaworthiness against Ingram because Clark was not the member of a crew of any Ingram vessel. Should the Court determine that Clark may pursue a claim for unseaworthiness, Ingram argues Plaintiffs cannot establish any unseaworthy condition that proximately caused or substantially contributed to Clark's injury. Finally, Ingram argues that Plaintiffs' claims for loss of consortium against Ingram are not recognized under general maritime law.

The final motion is brought by DBI, the manufacturer of a self-retracting lifeline device at the top of the cell tower from which Plaintiff fell. Plaintiff alleges that he climbed the cell tower without the protection of a safety cable, because the cable had retracted to the top of the tower, and there was no safe way provided to retrieve it. In its motion for summary judgment, DBI, argues that Plaintiffs have failed to offer any evidence of design or manufacturing defect, nor to establish a genuine issue of material fact regarding a failure to warn claim. As such, DBI argues, it is entitled to summary judgment on the product liability claims against it.

Plaintiffs responded to each of the pending motions, arguing that genuine issues of material fact preclude judgment for the Defendants. Specifically, Plaintiffs argue that a jury could find ample evidence to support the conclusion that Charles Clark was a Jones Act seaman, and that the collective negligence of all the Defendants contributed to Plaintiffs' injuries. This matter is now ripe for the Court's consideration.


Although a grant of summary judgment is not a substitute for trial, it is appropriate "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; see also, e.g., Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962); LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per curiam). In reviewing the instant motion, "this Court must determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993), quoting in part Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986) (internal quotation marks omitted).

The process of moving for and evaluating a motion for summary judgment and the respective burdens it imposes upon the movant and the non-movant are well settled. First, "a party seeking summary judgment. . . bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact [.]" Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The movant may do so by merely identifying that the non-moving party lacks evidence to support an essential element of its case. See Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).

Faced with such a motion, the non-movant, after completion of sufficient discovery, must submit evidence in support of any material element of a claim or defense at issue in the motion on which it would bear the burden of proof at trial, even if the moving party has not submitted evidence to negate the existence of that material fact. See Celotex, 477 U.S. at 317; Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). As the "requirement [of the Rule] is that there be no genuine issue of material fact," an "alleged factual dispute between the parties" as to some ancillary matter "will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-248 (emphasis added); see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir. 1989). Furthermore, "[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994). Accordingly, the non-movant must present "significant probative evidence" demonstrating that "there is [more than] some metaphysical doubt as to the material facts" to survive summary judgment and proceed to trial on the merits. Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-340 (6th Cir. 1993); see also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405.

Although the non-movant need not cite specific page numbers of the record in support of its claims or defenses, "the designated portions of the record must be presented with enough specificity that the district court can readily identify the facts upon which the non-moving party relies." Guarino, 980 F.2d at 405, quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989) (internal quotation marks omitted). In contrast, mere conclusory allegations are patently insufficient to defeat a motion for summary judgment. See McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990). The Court must view all submitted evidence, facts, and reasonable inferences in a light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc., 369 U.S. 654 (1962). Furthermore, the district court may not weigh evidence or assess the credibility of witnesses in deciding the motion. See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).

Ultimately, the movant bears the burden of demonstrating that no material facts are in dispute. See Matsushita, 475 U.S. at 587. The fact that the non-moving party fails to respond to the motion does not lessen the burden on either the moving party or the Court to demonstrate that summary judgment is appropriate. See Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991).


A. Defendant CGB's Motion for Summary ...

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