The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This cause is before the Court on Defendant Cargill Incorporated's Motion for Summary Judgment (d/e 27) and Amended Motion for Summary Judgment (Cargill's Motion) (d/e 29); and Defendants American Commercial Barge Line, LLC and American Commercial Lines, Inc.'s Motion for Summary Judgment as to Count V of Plaintiff's First Amended Complaint (ACL's Motion) (d/e 33 and d/e 39). Plaintiff Carter McEuen has filed Plaintiff's Memorandum in Opposition to Cargill Incorporated's Motion for Summary Judgment (Response to Cargill's Motion) (d/e 31) and Plaintiff's Response to Defendants American Commercial Barge Line, LLC and American Commercial Lines, Inc.'s Motion for Summary Judgment (Response to ACL's Motion) (d/e 35).*fn1 Defendant Cargill Incorporated (Cargill) then filed its Reply to Plaintiff's Response to Motion for Summary Judgment (d/e 32).
This matter is fully briefed and ripe for adjudication. For the reasons described below, Cargill's Motion is granted in part, and denied in part. ACL's Motion is granted.
A motion for summary judgment must be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Herman v. Nat'l Broadcasting Co., 744 F.2d 604, 607 (7th Cir. 1984). Once the moving party has produced evidence showing that it is entitled to summary judgment, the non-moving party must present evidence to show that issues of fact remain. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A court properly enters summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; see McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 479 (7th Cir. 1996) (quoting Celotex). The court does not resolve disputed factual issues, but rather determines whether "there is a genuine issue for trial." Blaguss Travel Int'l v. Musical Heritage Int'l, 833 F.Supp. 708, 710 (N.D. Ill. 1993).
To successfully oppose a motion for summary judgment, the non-movant must do more than raise a "metaphysical doubt" as to the material facts. See Zenith, 475 U.S. at 586. Instead, he must present "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2); Zenith, 475 U.S. at 587 (emphasis omitted). There is not a genuine issue for trial if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party...." Zenith, 475 U.S. at 587.
Plaintiff Carter McEuen is a seaman who was injured on August 24, 2005, while opening a roll-top barge cover on the Illinois River in Florence, Illinois. Plaintiff was a deckhand aboard the "M/V Tom Edwards," a tugboat owned and operated by Defendant Lower Illinois Towing Company (Lower Illinois).*fn2 Lower Illinois was Plaintiff's employer. The captain of the "Tom Edwards" was Philip McEuen, Plaintiff's brother. At the time of the events alleged in the Complaint, Plaintiff had nearly twenty years of experience as a seaman.
Part of Lower Illinois' business was switching, cleaning, and fleeting barges for Defendant American Commercial Barge Lines, LLC (ACBL).*fn3
Lower Illinois also occasionally performed work for Defendant Cargill, including opening roll-top covers on barges at the grain elevator when Cargill was busy, or when Cargill personnel had trouble rolling the covers themselves. Lower Illinois billed Cargill directly for these services. Cargill's Motion, Ex. B, Deposition of Philip McEuen (Philip McEuen Dep.) 21:20-21. On August 24, 2005, ACBL owned Barge 3272 (the Barge), which was docked for loading at Defendant Cargill's grain elevator on the Illinois River in Florence, Pike County, Illinois.
Roll-top, or telescoping, barge covers are made of steel and are set into tracks with wheels, allowing them to roll along rails on the barge and telescopically retract. The covers are held down by latches and pins, which must be flipped up before the covers are opened. The whole apparatus fits over the barge's coaming, a high wall surrounding the opening for the cargo box. The covers have lift rings mounted to their centers so that an individual can attach a cable or line to the cover, and then attach that line either to a winch or a tugboat, which then pulls back the cover. This person often accesses the covers by using running ladders, which are attached to the barge's bow and stern ends, or by climbing up the coaming wall's exterior frame. In some instances, though, there are gaps between the covers, making them inaccessible from the barge's ladders.
Roll-top barge covers can be problematic for a number of reasons. The covers sometimes come out of the tracks, making them difficult to roll and causing them to get stuck. Philip McEuen Dep. 23: 7-15; Response to Cargill's Motion, Ex. 1, Deposition of William Booth (Booth Dep.) 26:1-7; Response to Cargill's Motion, Ex. 2, Deposition of William Freesmeyer (Freesmeyer Dep.) 8:5-21. On other occasions, the pins that hold the covers into place fall down while the covers are being retracted, making them stop in their tracks. Philip McEuen Dep. 23:7-15, 24:12-23; Booth Dep. 26:1-7; Cargill's Motion, Ex. A, Deposition of Carter McEuen (Carter McEuen Dep.) 81-84.
On August 24, 2005, Plaintiff and his brother Philip McEuen were the only crew-members aboard the "Tom Edwards." Cargill enlisted Lower Illinois' services to open the roll-top covers on the Barge so that the cargo box could be filled with grain. Initially, the Barge was positioned with its bow facing downstream, or south.*fn4 The "Tom Edwards" was positioned on the port side of the Barge.*fn5 Plaintiff testified at his deposition that the Barge had ten covers, which retracted from bow to stern end. Plaintiff rolled the first eight covers by unlatching the pins that held the covers in place, and attaching a cable to the lift ring on the far bow-end cover. He then threw the line to Philip McEuen on the tugboat, which traveled upstream, or north, to retract the first eight covers. Although Plaintiff noted that one of the covers seemed off-track, all eight covers rolled back, exposing half of the cargo box for loading. Cargill employees then secured the roll covers with a chain so that they would not move during the loading process.
The "Tom Edwards" returned to the Barge nearly three hours later, after Cargill personnel had loaded half of the Barge with corn, starting at the bow end. One by-product of the loading process was grain dust, which accumulated on the deck as the cargo hold was filled with corn. Plaintiff testified at his deposition that the amount of grain dust on the Barge on August 24, 2005, was what he would generally expect. Carter McEuen Dep. 145:5-7. Plaintiff stated that the grain dust should be swept from the Barge when it was finished being loaded. Id., 145: 9-11. He stated that there was a broom aboard the "Tom Edwards," and that Plaintiff would sweep the deck if he felt that the volume of grain dust on the deck made conditions unsafe. Id., 144:14-21. Long-time Cargill employee William Booth testified that in 2005 Cargill cleaned the barges after they were finished being loaded. Booth Dep. 31:12-20.
Plaintiff and Philip McEuen prepared to close the covers over the half of the Barge that had been filled, and open the remaining covers. However, during the process one of the covers split, and the covers "hung up," or got stuck. Plaintiff's investigation revealed that one of the covers was off track. Booth said that steel roll-top covers often got stuck, either because they were off track, or because a dropped pin prevented the cover from rolling smoothly. Booth Dep. 26:1-7.
Plaintiff went to the stern end of the Barge, climbed over the coaming onto the stuck cover, and attached a cable to the lift ring using the same type of hook-and-shackle device he had used earlier in the day to roll the covers from the bow end of the Barge. He climbed down from the cover onto the deck. Although Plaintiff had asked Cargill personnel to borrow a stepladder in the past, Plaintiff did not do so on this occasion. Plaintiff then attached an additional line to a kevel*fn6 on the "Tom Edwards," and climbed back onto the cover closest to the Barge's stern end to attach the leaving line to the lift ring on one of the covers further toward the bow end, hoping that this would rectify the problem and loosen the cover that was stuck. As Plaintiff was climbing down from this cover, he placed his right foot on a kevel and slipped. Plaintiff felt his knee pop.
Despite his knee injury, Plaintiff and his brother finished rolling the covers, and then returned later in the day to close all of the covers after Cargill filled the other half of the Barge with corn. However, the next day Plaintiff's knee began bothering him. He went to the doctor a few days later, ...