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Wire v. Showboat Marina Casino Partnership

March 20, 2008


The opinion of the court was delivered by: Samuel Der-Yeghiayan United States District Court Judge



This matter is before the court on Defendant Showboat Marina Casino Partnership's ("Casino") motion for summary judgment and Plaintiff Rosemary Wire's ("Wire") motion to strike. For the reasons stated below, we grant the motion for summary judgment and deny the motion to strike.


Wire alleges that on November 13, 2003, she was employed by the Casino and was a member of a crew on a vessel owned by the Casino. According to Wire, while she was working she sustained severe injuries to her spine and body. Wire further contends that her injuries were the result of negligence and recklessness by the Casino in failing to keep the alleged vessel and adjoining structures in a safe condition. Wire brought the instant action and includes in her first amended complaint a claim alleging a violation of the Jones Act, 46 U.S.C. § 688 et seq. (Count I), a claim alleging failure to provide a seaworthy vessel and safe work environment in violation of general admiralty law (Count II), and a maintenance and cure claim (Count III). The Casino moves for summary judgment on all claims.


Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


I. Motion to Strike

Wire moves to strike the affidavit of Captain Timothy S. Traynor ("Traynor"), who was the captain on the Winstar riverboat casino ("Riverboat Casino") where Wire worked. Wire argues that statements included in Traynor's affidavit are not supported by facts and that the Casino has not laid any foundation for Traynor's statements. Wire contends that Traynor's affidavit does not represent admissible evidence. See Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007)(stating that "[t]he evidence relied upon in defending a motion for summary judgment must be competent evidence of a type otherwise admissible at trial"). In his affidavit, Traynor states that he works for the Casino and is in charge of the Riverboat Casino. (Traynor Aff. Par. 1). Traynor also testified at his deposition that he is responsible for the entire crew and passengers on the Riverboat Casino. (Traynor Dep. 8). Thus, the statements included in Traynor's affidavit concerning the Riverboat Casino are not without an apparent basis. Traynor, in fact, specifically states in his affidavit that his statements concerning matters such as the intention of the Casino to keep the Riverboat Casino moored are based upon facts of which he was "personally aware." (Traynor Aff. Par. 13). Wire has not pointed to any evidence that would indicate that Traynor's testimony would not be admissible. The Casino has shown that Traynor has sufficient connections to the operations of the Riverboat Casino to be in a position to testify as to the matters in his affidavit based upon his personal knowledge. There is no rule that requires the Casino to lay out some sort of direct examination specifically explaining how the Casino will lay a foundation for every fact in the affidavit. Nor is there any rule that requires the Casino to present the witness in the defense of the case in a manner that is desired by the plaintiff. Therefore, we deny the motion to strike.

We also note that Wire cannot prevail simply by seeking to strike the evidence presented by the Casino. At this stage of the proceedings, in light of the evidence pointed to by the Casino, Wire can no longer rely on the allegations in her complaint. Fed. R. Civ. P. 56(e). She must do more than simply attack the Casino's proposed defense by moving to strike the Casino's supporting evidence. Wire is required to point to sufficient evidence that she will present to the trier of fact to support her case. See Springer v. Durflinger, 2008 WL 540220, at *5 (7th Cir. 2008)(stating that "summary judgment 'is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events'")(quoting in part Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007)). Wire is not entitled to proceed to the jury and ask the jury to speculate in the absence of evidence and rule in her favor. We also note that even if we were to grant Wire's motion to strike, the Casino has pointed to sufficient other evidence that the result in this case would remain the same.

II. Motion for Summary Judgment

The Casino argues that the Riverboat Casino on which Wire worked is not a navigating vessel under admiralty law and thus, Wire cannot prevail against the Casino under admiralty law. An individual that is deemed a "seaman" can bring a cause of action against an employer for injuries resulting in the course of employment relating to negligence or intentional torts. Howard v. Southern Illinois Riverboat Casino Cruises, Inc., 364 F.3d 854, 856-58 (7th Cir. 2004)(stating that "the Jones Act creates a federal negligence claim for any 'seaman' injured in the course of employment" and that "Congress enacted the Jones Act to provide seamen with heightened legal protection because of their exposure to 'perils of the sea'")(quoting in part Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995)); Sobieski v. Ispat Island, Inc., 413 F.3d 628, 631 (7th Cir. 2005)(stating that "under the doctrine of respondeat superior, a Jones Act employer may be liable for the negligence or intentional torts of its employees"). A seaman can also sue an employer under general martitime law for failing to provide a seaworthy navigating vessel upon which to work. Hughes v. ContiCarriers and Terminals, Inc., 6 F.3d 1195, 1197 (7th Cir. 1993)(stating that "[a]lthough the doctrine of unseaworthiness entails liability without fault, there must still be a defect in the vessel" and that "'[t]he standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service'")(quoting in part Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960)).

Under general maritime law, a seaman can also bring a suit for "maintenance and cure" against her employer. See Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 527 (1938)(referring to the "ancient duty of a vessel and her owner to provide maintenance and cure for seamen injured or falling ill while in service"); Mullen v. Fitz Simons & Connell Dredge & ...

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