The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
This matter comes before the Court on Defendants' motion for summary judgment (Doc. 21). Naturally, Plaintiff opposes the motion (Doc. 27). For the reasons set forth below, the Court denies the motion. Further, the Court denies Plaintiff's motion for oral argument on Defendants' pending motion for summary judgment (Doc. 29).
On March 13, 2007, Michael J. McAdams filed a Complaint in Admiralty against the M/V Mary Lynn, her engines, tackle, hull and appurtenances and Steel City Marine Transport, Inc. ("Steel City") (Doc. 2). The Complaint alleges that on September 2, 2005, McAdams, while employed by Steel City as a deckhand and a member of the crew of the M/V Mary Lynn, was attacked by the vessel's mate.*fn1 Specifically, McAdams alleges that the mate shoved him so that he fell backwards over a table and struck a bulkhead causing injuries to his back. (Doc. 2; p. 1, ¶ 2). Count I is an in rem action against the M/V Mary Lynn and alleges that the "M/V Mary Lynn was not seaworthy and the crew of the vessel was not reasonably fit for its intended purpose in that the mate possessed an unusually vicious disposition such that he would, without legal provocation, strike and injure the plaintiff." (Doc. 2; p. 2, ¶ 3). Count II is against Steel City Marine Transport, Inc. and alleges negligence, unseaworthiness and failure to pay maintenance and cure. The Complaint also alleges that Steel City operated, crewed and controlled the M/V Mary Lynn.
On February 22, 2008, Defendants filed a motion for summary judgment (Doc. 21). Specifically, Defendants contend that they are entitled to summary judgment on all counts of Plaintiff's complaint because the incident was not foreseeable as there is no evidence that the mate was a habitual violator of ship discipline; that Defendants did not breach the warranty of seaworthiness; and that McAdams forfeited his right to maintenance and cure because of his willful misconduct. Plaintiff opposes the motion arguing that Defendants have omitted significant facts that create genuine issues of material fact including: actual notice to the vessel captain of an impending attack and the exceptionally brutal and vicious disposition of the vessel mate (Doc. 27). The Court now turns to address the merits of the motion.
Michael McAdams brings this lawsuit against Steel City pursuant to the Jones Act and General Maritime Law. This action arises out of an altercation between McAdams and fellow crew member, Brian Holton, aboard the M/V Mary Lynn, a towing vessel owned by Steel City.
In August 2006, Steel City hired McAdams as a deckhand. During his first two voyages on the M/V MARY LYNN, McAdams worked under the supervision of Holton, who was the vessel's first mate.
Steel City hired Holton as a deckhand in 1998. Steel City promoted Holton to the position of mate in 2005. Holton's nickname is Flash. In 1997, Holton was convicted of aggravated assault and disclosed this conviction on his Steel City employment application.
On McAdams' third voyage, he requested a transfer to the watch opposite Holton because of friction between the two. That request was granted and the Second Mate supervised McAdams on the opposite watch.
Prior to the altercation between McAdams and Holton, the M/V Mary Lynn had a tow of four barges in its tow below Lock 3 and below Mile Markers 41 and 49 on the Arkansas River. At that time, pilot James Ponder was operating the tow and ran the tow aground due to lack of attention. The barges in the vessel's tow sustained damage including punctures.
On January 7, 2007, at or near Mile Marker 598 on the Mississippi River, the M/V Mary Lynn was getting ready to leave with the same tow of four barges that had been in tow at the time of the grounding the previous day. Holton ordered McAdams and the other deck members not to pump the water out of the damaged barges. As a result of not pumping out the water, one of the barges that had been damaged when the tow grounded "rolled" when the tow wires were removed. It took the vessel crew approximately eight hours to level the barge up and get it stationary enough to make up tow.
Captain Briggs asked the crew why the barge had not been pumped out. Holton did not answer Captain Briggs. McAdams told Captain Briggs that the barge had not been pumped out because Holton ordered them not to pump it. Captain Briggs was annoyed with Holton because the barge should have either been pumped out or called to Captain Briggs' attention. Captain Briggs expressed his displeasure with Holton.
During the third voyage, McAdams and Holton were involved in an altercation in the crew lounge on January 8, 2007. Just prior to the altercation, McAdams and another crew member were in the vessel's crew lounge discussing the vessel's capabilities with the vessel's engineer. Holton entered the crew lounge and, overhearing the conversation, told McAdams he thought that McAdams knew everything. McAdams responded that Holton did not know anything. The two men began arguing and cursing one another. McAdams then said to Holton that they should go outside. The two men stood facing each other for a period of time. Holton with both hands shoved McAdams in the chest. McAdams hit the wall and fell to the ground.
McAdams reported his lower back pain. Two days later, McAdams departed the vessel for medical treatment. He underwent two lower back surgeries. Pursuant to its cure obligation, Steel City has paid for all of McAdams' medical expenses.
Summary judgment is appropriate only when "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. Proc. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could find for the non-movant. Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). The movant in a motion for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record; if the party succeeds in doing so, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. Proc. 56(e); Celotex Corp. v. Catrett, 477 U.S. ...