Dean v. Ramos Corp.

781 So. 2d 796, 2001 WL 253908
CourtLouisiana Court of Appeal
DecidedFebruary 28, 2001
Docket00-CA-1621
StatusPublished
Cited by7 cases

This text of 781 So. 2d 796 (Dean v. Ramos Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dean v. Ramos Corp., 781 So. 2d 796, 2001 WL 253908 (La. Ct. App. 2001).

Opinion

781 So.2d 796 (2001)

Alfred DEAN
v.
RAMOS CORPORATION d/b/a Primemen, Inc. and Oceanengineering International, Inc.

No. 00-CA-1621.

Court of Appeal of Louisiana, Fifth Circuit.

February 28, 2001.

*798 Lester J. Waldmann, Brian C. Beckwith, Gretna, Louisiana, for appellant, Alfred Dean.

Ralph E. Kraft, Preis, Kraft, Roy, Lafayette, LA, for appellee, Oceaneering International, Inc.

Len R. Brignac, New Orleans, Louisiana, for appellee/defendant.

Panel composed of Judges JAMES L. CANNELLA, CLARENCE E. McMANUS and PHILIP C. CIACCIO, Pro Tempore.

CANNELLA, Judge.

Plaintiff, Alfred Dean, appeals from two judgments in a maritime and/or negligence action against Ramos Corporation, d/b/a Primemen, Inc. (Primemen) and Oceaneering International, Inc. (Oceaneering) We affirm.

Primemen, supplying laborers to perform temporary jobs, employed Plaintiff as a general land laborer, which included maintenance and cleaning work. Before working for Primemen, Plaintiff worked directly as a deck hand, cook and relief captain on vessels for other companies. During his employment with Primemen, Plaintiff worked in a pipe yard, in an aluminum salvage plant, and cleaned the holds of vessels. For six days during August, one day in October, and several days in November of 1994, Plaintiff worked at two facilities owned by Oceaneering cleaning the yards, draining the dive tanks used for diver training, washing trucks and doing other odd jobs around the facilities and *799 around the house of the Port Captain at the Berwick dock yard.

On November 7, 1994, Plaintiff was assigned to the M/V OCEAN INSPECTOR II, a vessel owned by Oceaneering, as a temporary cook to replace the permanent cook who was on vacation. The vessel is a small utility dive boat used primarily to transport divers employed by the company. Plaintiff was on the boat from November 7, 1994 to November 9, 1994.

On November 7, 1994, while taking a diver to another location, the port engine "blew" causing the boat to run on one engine back to the dock. The engine failed due to the act of a previous engineer who had turned off the alarm that would have let the crew know that a water hose broke. The engineer was subsequently fired. The engine then had to be removed for repairs by another company specializing in this work. In order to remove the engine, a hole was cut into the main deck and the engine was lifted out. This allowed access to the bilge below the engine room floor on deck. The captain, William Hoolahan, used the opportunity to order the two other crew members, Plaintiff and the engineer, to clean the area before installing the new engine. Because the bilge contained some oil in the water, Plaintiff was ordered to distribute absorbent pads into the water to soak up the oil. In order to do so, he climbed down from the engine room deck into the bottom of the boat. The engineer was positioned on the engine room floor so that he could take the oily pads from Plaintiff and disposed of them in bins. During this process, Plaintiff alleges that he slipped and fell while stepping sideways over a seven-inch "rib" and that he fell on the rib, injuring his low back. He left the boat the next day, complaining of back pain. Plaintiff started treatment that ultimately resulted in surgery.

On November 8, 1995, Plaintiff filed a petition for damages against Primemen under the Jones Act, 46 U.S.C.A. 688 and against Oceaneering, the vessel owner, under general maritime law. He further alleged that the boat was unseaworthy and requested maintenance, as well as damages. The Louisiana Workers' Compensation Corporation intervened and Primemen filed a cross-claim against Oceaneering.

On December 4, 1998, Primemen filed for a summary judgment. On January 4, 1999, a summary judgment was requested by Oceaneering. Both motions asserted that Plaintiff was not a seaman and his remedy, if any, was limited to general negligence.[1] The motions were supported by Plaintiff's deposition and an affidavit by Raymond Johnson, the President and owner of Primemen, which asserted that Plaintiff was a temporary laborer employed by Primemen, who assigned him to various land-based jobs, as well as the one job on the boat owned by Oceaneering. Plaintiff relied on his deposition in his opposition to the motion to show that he was doing the work of a seaman at the time that he was injured.

After a hearing, the trial judge rendered a judgment granting the motions filed by Defendants on February 1, 1999 and dismissing Primemen from the lawsuit. The case against Oceaneering was tried by the trial judge on March 1 and 2, 1999. On May 25, 1999, the trial judge rendered a verdict in favor of Oceaneering, finding that the accident could not have happened *800 the way that Plaintiff described it and thus, Plaintiff failed to bear his burden of proof of negligence against Oceaneering.

On appeal, Plaintiff asserts that the trial judge erred in granting the summary judgment and in failing to find that he was a seaman. Plaintiff further asserts that the trial judge erred in failing to find that he proved Oceaneering negligent and in failing to award damages for his injury.

SUMMARY JUDGMENTS AND STATUS OF SEAMAN

La.C.C.P. art. 966 provides that a summary judgment shall be rendered forthwith if 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 material fact and that mover is entitled to judgment as a matter of law. Under a 1997 amendment, the summary judgment is favored, but the burden of proof remains with the movant. Chiasson v. New Orleans Pub. Group, Inc., (La.App. 5th Cir.4/25/00), 761 So.2d 89, 91; KLL Consultants, Inc. v. Aetna Cas. & Sur. Co. of Illinois, 99-14 (La.App. 5th Cir.6/1/99), 738 So.2d 691, 694. Further, "if the movant will not bear the burden of proof at trial on the matter before the court," "the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." C.C.P. art. 966. Thus, "if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial there is no genuine issue of fact." Id. Appellate courts should review the granting of a summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. KLL Consultants, Inc., 738 So.2d at 694.

Generally, state courts exercising concurrent maritime jurisdiction are bound to apply substantive federal maritime statutory law and to follow United States Supreme Court maritime jurisprudence. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 94.

The question of seaman status under the Jones Act is a mixed question of law and fact. McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991). However, "Where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, the court may take the question from the jury by granting summary judgment or a directed verdict." Chandris, Inc. v. Latsis, 515 U.S. 347, 370, 115 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
781 So. 2d 796, 2001 WL 253908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-v-ramos-corp-lactapp-2001.