Thompson v. Casino Magic Corp.

708 So. 2d 878, 1998 WL 105780
CourtMississippi Supreme Court
DecidedMarch 12, 1998
Docket96-CA-00458-SCT
StatusPublished
Cited by6 cases

This text of 708 So. 2d 878 (Thompson v. Casino Magic Corp.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Casino Magic Corp., 708 So. 2d 878, 1998 WL 105780 (Mich. 1998).

Opinion

708 So.2d 878 (1998)

Shirley Ann THOMPSON
v.
CASINO MAGIC CORPORATION, Mardi Gras Casino Corporation.

No. 96-CA-00458-SCT.

Supreme Court of Mississippi.

March 12, 1998.

*879 Kenneth R. Watkins, Gulfport, for Appellant.

Richard Wayne Sliman, Bryant Clark Dukes Blakeslee Ramsay & Hammond, Gulfport, for Appellees.

En Banc.

SULLIVAN, Presiding Justice, for the Court:

¶ 1. Shirley Thompson, an employee of defendant Casino Magic, suffered injuries on two separate occasions while at work as a "change person." Shirley brought suit against Casino Magic Corporation alleging that the Dubuque Belle and the Casino Magic barge were unseaworthy under the Jones Act, 46 U.S.C.App. § 688 (1994), and general maritime law of the United States of America. On October 23, 1995, Casino Magic filed a motion for summary judgement which was *880 granted on March 28, 1996. The trial court determined that Thompson was not a "seaman" and the Magic Casino barge was not a "vessel". Therefore the lower court found that Thompson was not entitled to Jones Act remedies. Thompson filed a notice of appeal to this Court on April 18, 1996. This Court finds that the lower court reached the right result because Thompson fails to attain seaman status.

¶ 2. Thompson began working for Casino Magic in Bay St. Louis as a "change person" on April 23, 1993. A change person makes change for casino patrons in the slot machine area. While counting the money that she was assigned while aboard the Dubuque Belle on May 17, 1993, Thompson suffered an injury when her vault or bank fell upon her. The day of the injury, Thompson, for the first time, had been assigned to the Dubuque Belle. Casino Magic admits that the Dubuque Belle is a "vessel" for purposes of the Jones Act, but denies that the Casino Magic barge is a "vessel".

¶ 3. Several weeks after Thompson began working at Casino Magic, the Dubuque Belle arrived and moored adjacent to the Casino Magic barge to provide additional gaming and dining. The uncontradicted affidavits of Tina Frederiksen and Matthew Semski stated that the Dubuque Belle was not operated on a permanent basis but only used during the Summer of 1993 to handle overflow crowds. The affidavits noted that no change persons were permanently assigned to the Dubuque Belle, but rather, were assigned varying work locations prior to the beginning of every shift based on personnel availability, the number of patrons, and several other factors. Workers' activities and responsibilities remained the same regardless of the location assigned. Furthermore, workers were deliberately rotated off the Dubuque Belle since it attracted fewer patrons and was thereby less desirable to work.

¶ 4. After returning to work for two days, Thompson remained home for several months. Thompson returned to work on November 11, 1993, and resumed her regular duties as change person. The Dubuque Bell had sailed away by November 11th when she returned. On her first day back at work, Thompson fainted and fell to the floor of the Casino Magic barge, injuring her neck and back. Factual dispute exists as to whether this injury was caused by and related to the first injury. However, for summary judgement purposes, this Court will assume that the second injury was caused by and related to the first injury.

LEGAL ANALYSIS

I.

WHETHER THE COURT HAD AUTHORITY TO GRANT SUMMARY JUDGEMENT ON WHETHER THOMPSON WAS "SEAMAN"?

¶ 5. Thompson contends that the circuit court improperly granted summary judgement because whether an employee is a "seaman" is an issue of fact for a jury to determine. Thompson is partially correct in her assertion. "However, seaman status may be decided on summary judgment where the evidence does not support a finding, as a matter of law, that the claimant is permanently assigned to a Jones Act vessel." Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 565 (5th Cir.1995) (quoting Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5th Cir.1990)). "And 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, 371, 115 S.Ct. 2172, 2191, 132 L.Ed.2d 314 (1995) (citation omitted). The facts were undisputed here and the trial court properly granted summary judgment finding Thompson was not a seaman.

II.

WHETHER THE COURT PROPERLY DETERMINED THAT THE CASINO BARGE WAS NOT A "VESSEL" FOR PURPOSES OF THE JONES ACT?

¶ 6. Casino Magic concedes that the Dubuque Belle is a "vessel" for purposes of the Jones Act. It was on this "vessel" that Thompson incurred her first injury. For *881 summary judgement purposes, this Court will assume that the second injury was caused by and related to the first injury. Therefore, this case must be decided on the issue of Thompson's status of a "seaman" and not whether the Casino Magic barge is a "vessel". The lower court determined that the Casino Magic barge was not a "vessel" for purposes of the Jones Act, and therefore summary judgement was proper. This Court recently determined that shore side casinos constructed out of navigable barges were not vessels for purposes of federal maritime law. King v. Grand Casinos of Mississippi, Inc. Gulfport, 697 So.2d 439 (Miss. 1997). King defers to the Fifth Circuit federal court ruling that moored barges for gambling are not vessels under federal maritime law. Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir.1995) consolidated with Ketzel v. Mississippi Riverboat Amusement, Ltd., 867 F. Supp. 1260 (S.D.Miss. 1994).

¶ 7. King affirmed summary judgement in favor of the casino when employees injured on the job sought remedies under federal maritime law. Determining that shore side gambling casinos made on navigable barges were not "vessels" for purposes of federal maritime law, King deferred to Pavone's analysis of common attributes for nonvessels:

(1) The structure was constructed to be used primarily as a work platform;
(2) the structure is moored or otherwise secured at the time of the accident; and
(3) although the platform is capable of movement, and is sometimes moved across navigable waters in the course of normal operations, any transportation function is merely incidental to the platform's primary purpose.

Pavone, 52 F.3d at 570 (citations omitted). Even considering these attributes, to say a casino barge is not a "vessel" under federal maritime law in all circumstances is overly broad and incorrect. These barges are capable of moving on navigable waters and several casino barges have been moved due to inclement weather as well as to relocate for business reasons. If an accident occurs during one of these moves and a worker is injured during that move, it is possible that the worker may classify as a "seaman" and his claim should not be barred because this Court has determined as a matter of law that the casino barge is not a "vessel".

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Bluebook (online)
708 So. 2d 878, 1998 WL 105780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-casino-magic-corp-miss-1998.