Omar v. Key Lakes IV, Inc.

573 F.Supp.3d 1200

Abdulsalam OMAR, Plaintiff,

v.KEY LAKES IV, INC., et al., Defendants.

Civil Action No. 20-CV-11845

United States District Court, E.D. Michigan, Southern Division.

Signed December 1, 2021

Dennis M. O'Bryan, O'Bryan, Baun, Karamanian, Birmingham, MI, for Plaintiff.

Markus Edgars Apelis, Gallagher Sharp, Cleveland, OH, Paul D. Galea, Gallagher Sharp, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT and GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A SURREPLY

BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE

This matter is presently before the Court on defendants’ motion for summary judgment (ECF No. 13). Plaintiff has responded, defendants have replied, and plaintiff has filed a surreply.¹ Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a hearing. For the reasons stated below, the Court shall grant the motion in part and deny it in part.

This is a maritime tort case. Plaintiff is a former crewmember who worked for defendant Key Lakes IV, Inc. ("Key Lakes").² See Compl. ¶ 3. Plaintiff's complaint contains three claims: (1) negligence, pursuant to the Jones Act, 46 U.S.C. § 30104 ;³ (2) unseaworthiness, pursuant to general maritime law; and (3) failure to provide maintenance and cure, also pursuant to general maritime law. Compl. ¶ 2. For relief, plaintiff seeks compensatory damages. See id. ¶ 5. Before the Court is defendants’ motion for summary judgment.

I. Background

At the time of the underlying incident in this case, plaintiff was employed as a second cook in the galley department of a Great Lakes freighter named the M/V Great Republic ("Great Republic"), a position that he had held since 2016. See Defs.’ Br. at 1, 3. Plaintiff's duties included cooking, cleaning the galley and mess hall, and handling the ship's stores. See Defs.’ Ex. A (Pl.’s Dep.) at 15-16.

Plaintiff alleges that

[o]n or about April 27, 2018, after [he] had been required to work more than 15 hours [in a 24-hour period] in violation of 46 [U.S.C. §] 8104(c), [he] was injured due to overexertion and handling boxes of stores in awkward positions, arising from.... [defendants’ failure] to provide a safe place to work[ ] and [a] seaworthy vessel.

Compl. ¶ 4. Plaintiff "usually worked twelve and a half hours from 0500 [a.m.] to 0630 [p.m.] [with an hour break]." Pl.’s Resp. Br. at 7. However, plaintiff testified that on the day in question, he reported to work at 2:00 a.m. to make space for a supply delivery, which was delivered between 2:30 a.m. and 2:40 a.m. See Defs.’ Ex. A (Pl.’s Dep.) at 38, 48. Plaintiff further alleges that, after working for approximately two hours, he lifted a "french fries box and tried to put it in the freezer" when "something popped [in his] back." Id. at 45, 56-57. Plaintiff's injury occurred at or around 5:00 a.m. on April 27, 2018.⁴ See Defs.’ Ex. F (Pers. Inj. Rep.); Pl.’s Resp. Br. at 7. When the vessel arrived at its destination in Alpena, Michigan, he was sent to the hospital for treatment. See Defs.’ Ex A (Pl.’s Dep.) at 56-57.

II. Defendants’ Motion for Summary Judgment

Defendants seek summary judgment on all of plaintiff's claims. Defendants state that "the lone, exclusive basis of [plaintiff's] claim against Key Lakes is based on his allegation that he was required to work too many hours in violation of a work-rest rule." Defs.’ Br. at 9-10. Defendants contend that, although § 8104(c) does place "limitations on the hours of service and rest periods of certain mariners aboard certain vessels," it "does not apply to the plaintiff or his vessel." Id. at 10-11.

Section 8104(c) states in relevant part:

On a towing vessel ... operating on the Great Lakes ... an individual in the deck or engine department may not be required to work more than eight hours in one day or permitted to work more than 15 hours in any 24-hour period, or more than 36 hours in any 72-hour period, except in an emergency when life or property are endangered.

Defendants argue that "[t]he plain language of the statute bars its application to the plaintiff for two reasons. First, the Great Republic is not a towing vessel. Second, the plaintiff is not a member of the deck or engine departments." Defs.’ Br. at 11. As to the first point, defendants contend that "[t]he Great Republic is a self-unloading bulk carrier. It is not a towing vessel, as it is not in service of pulling, pushing or hauling anything along side."⁵ Id. at 13. As to the second point, defendants argue that "it is undisputed that plaintiff is a member of the Galley Department (or Steward's Department ...)," not a member of the deck or engine department.⁶ Id. at 14. Because neither the vessel nor plaintiff falls within the protections of § 8104(c), defendants contend that plaintiff's claim pursuant to that statute fails as a matter of law.⁷

Defendants next argue that even if plaintiff could establish a statutory basis for his Jones Act claim, the claim nonetheless fails because he "has not established that Key Lakes had notice and an opportunity to correct [the] allegedly hazardous condition." Id. at 17. Defendants contend that "[i]t is a fundamental principle that, under the Jones Act, an employer must have notice and the opportunity to correct an unsafe condition before liability will attach." Id. (citing Perkins v. Am. Elec. Power Fuel Supply, Inc. , 246 F.3d 593, 599 (6th Cir. 2001) ) (internal quotation marks omitted). Defendants state that handling stores was a routine aspect of plaintiff's job and a task that he was comfortable performing. See id. at 18 (citing Defs.’ Ex. A (Pl.’s Dep.) at 57-58). Defendants add that plaintiff "never raised any concern to anyone aboard about any unsafe conditions or practices. He never expressed any such concern to shoreside personnel. He never expressed any concern to [his] union." Id. at 18-19 (citing Defs.’ Ex. A (Pl.’s Dep.) at 53-54, citations omitted). Moreover, defendants contend that they cannot, as a matter of law, be held liable for plaintiff's "ordinary and routine maritime work." Id. at 19. For these reasons, defendants argue that even if § 8104(c) did apply to the incident in question, they would still be entitled to summary judgment on Count I.

Finally, defendants argue that plaintiff's claims under general maritime law also fail. Defendants contend that "[i]n order to recover under the doctrine of unseaworthiness, a seaman must prove the existence of an unseaworthy condition, i.e., that some aspect of the vessel, appurtenances, or crew was not reasonably fit for their intended purpose, and that such unseaworthy condition proximately caused the seaman's injury." Id. at 23. Here, defendants argue, "plaintiff testified that other than the issue with his work hours, the company and his crew mates did nothing that caused his accident." Id. (citing Defs.’ Ex. A (Pl.’s Dep.) at 59). As to plaintiff's claim of maintenance and cure,

defendants state that

[u]nder general maritime law, seamen that suffer illness or injury on the job are entitled to maintenance and cure benefits. Maintenance is a shipowner's obligation to provide a mariner with food and lodging if he becomes injured or falls ill while in service of the ship. Cure is the shipowner's duty to provide necessary medical care and attention to an injured crew member.

Id. at 24 (citation omitted). Here, defendants contend, "plaintiff has not presented any evidence that there are maintenance and cure benefits to which the plaintiff is legally entitled that Key Lakes has not paid. Nor can plaintiff present any such evidence." Id. Defendants argue that summary judgment is therefore warranted as to Counts II and III of the complaint.

In response, plaintiff changes tack, arguing not that he worked excessive hours on April 27, 2018, but rather that the galley department was understaffed in violation of the union-negotiated collective bargaining agreement ("CBA"), defendants’ duty of care under the Jones Act, and the seaworthiness doctrine under general maritime law. See Pl.’s Resp. Br. at 5. Plaintiff contends that while the CBA requires a four-man galley or steward's department, "[i]n the present case, there was a two-man galley, Plaintiff (Second Cook), and Doug Rogers (Steward), no Chief Cook and no Steward's Assistant." Id. Plaintiff states that at the time of the incident, he was attempting to complete two separate work activities at the same time – unloading stores and preparing breakfast. See id. at 1, 5. He argues that

[h]ad a Steward Assistant been onboard, he would have been participating in putting the stores away with Plaintiff at the time of his injury and Plaintiff would not ha[ve] been pressured into the conundrum of storing supplies in a rush when he would have otherwise been preparing for breakfast ....

Id. at 5 (citation omitted). Plaintiff notes that he raised his concerns regarding the lack of adequate assistance in his pre-deposition interrogatory answers as follows:

Interrogatory No. 8: Without reference to the complaint, please describe each instance in which you claim Key Lakes IV, Inc., Keystone Shipping Company, or their employees were negligent in connection with the accident.

ANSWER: More assistance in the galley would have helped prevent the injury, because for over two hours I was constantly picking up heavy items without any break, and I was extremely exhausted, having worked & been up many hours.

Interrogatory No. 9: Without reference to the complaint, please describe all manners in which you claim the M/V Great Republic was unseaworthy.

ANSWER: See Answer to Interrogatory No. 8.

Id. (quoting Pl.’s Ex. B (Pl.’s Answers to Interrog. Nos. 8 & 9), emphasis in original).

Plaintiff further argues that although he was injured while performing "otherwise routine storage work," the "hazard[s] increased as time wore on" because

he (1) had previously worked long – in excess of twelve – hours, (2) was tired, (3) was rushed, (4) was in need of assistance,

...