The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge
District Judge Robert M. Dow, Jr.
AMENDED MEMORANDUM OPINION AND ORDER
Plaintiff Brett Kurpiel filed his complaint against Defendant Calumet River Fleeting, Inc. ("Calumet"), seeking damages for injuries he allegedly sustained during his employment with Calumet. Kurpiel brings his claim pursuant to the Jones Act, 46 U.S.C. § 688, alleging that his injuries resulted from Calumet's negligence and the unseaworthiness of the vessel. On June 17, 2009, Defendant Calumet moved for summary judgment . For the following reasons, the Court grants Defendant's motion for summary judgment.
Defendant Calumet hired Plaintiff Brett Kurpiel as a deckhand aboard the John M. Selvick in May or June 2007. As a deckhand, Kurpiel's duties included keeping decks clear, tying off barges, facing up to barges, properly stowing equipment, and basic vessel maintenance. Before being allowed to work on his own, Kurpiel participated in a training period of three weeks with a more experienced deckhand. Following the training period, Kurpiel was allowed to work alone as a deckhand aboard Calumet's vessels.
On December 4 and 5, 2007, the John M. Selvick had a crew of four -- Captain Eric May, Engineer Steve Hoeckendorff, Deckhand Brett Kurpiel, and Deckhand Mike Szukrewicz. The voyage that day was to travel to a port in Milwaukee, Wisconsin, pick-up two barges, and tow them back to Chicago. However, severe weather conditions forced the John M. Selvick to find safe harbor and dock for the night instead of returning to Chicago. In his deposition, Kurpiel described the weather conditions as changing from rain to snow, then to ice, and finally to a near blizzard.
During the early morning hours of December 5, while in "safe harbor" and while working the midnight to 6:00 a.m. shift, Kurpiel went to the wheelhouse to use his cell phone. According to his deposition testimony, he fell asleep in the wheelhouse while waiting for the cell phone call and watching the barges. When he woke up, between 4:00 a.m. and 4:30 a.m., he needed to use the bathroom and wanted to check the decks. As he was walking back down the steps leading to the wheelhouse, he slipped on the last stair and fractured his left ankle.
In a statement that he signed on March 1, 2008, Kurpiel stated that he did not know if he slipped or just turned his ankle. He also stated that there were rails on both sides of the steps, that all six steps had non-skid paint on them, that the area was well lit, and that the wheelhouse stairs had been salted and taken care of by the other deckhand during the earlier shift. According to Kurpiel, the deckhands were responsible for salting the deck and stairs and keeping them clear of snow and ice. On board the vessel, the crew had shovels, sledgehammers, and salt available to remove any snow accumulations. According to the statement, Kurpiel said that shortly after his fall, the crew checked the stairs and surrounding area and that both "were still okay from the salting." He also stated, "This was a freak accident that I do not think could have been avoided. There was nothing that could have been done that had not been done."
Conversely, during his deposition, Kurpiel claimed that the stairs had not been shoveled or salted. However, he confirmed that it was the responsibility of the deckhand to shovel and salt the deck and stairs, that it was four hours into his shift (during which he would have been the deckhand responsible for shoveling and salting the deck and stairs) when he fell on the stairs, and that he had been asleep in the wheelhouse during his shift.
Although a specific rule or regulation regarding the use and upkeep of non-skid paint or tape on vessels does not exist, Defendant Calumet applies non-skid paint to the surfaces of its vessels on an "as needed" basis. On March 21, 2007, the John M. Selvick was inspected and the condition of the non-skid paint was deemed unsatisfactory, so Calumet applied non-skid paint to the vessel. On July 11, 2007, and again on May 7, 2008, the condition of the non-skid paint on the John M. Selvick was deemed satisfactory.
"Ice creepers" are gear that crew members can put on their boots to aid them in working in ice and snow. During his deposition, Kurpiel testified that the captain mentioned to him that ice creepers were available to crew members, but that none were ever issued to Kurpiel. Two other crew members confirmed that ice creepers were aboard the vessel at the time of Kurpiel's accident, but that, like other personal protective equipment such as work vests, everyone shares them and retrieves them when necessary.
Following full briefing on Defendant Calumet's motion for summary judgment, Plaintiff was given leave to correct violations of Local Rule 56.1(b) for failing to respond to Calumet's statement of material facts. Because Plaintiff raised new matters in his response to Defendant's statement of facts and in his own Rule 56.1 statement, the Court gave Defendant ...