[B]Case Name: [/B][I]David Anthony Mier v. Wood Towing, LLC et al.
[/I][B]Date Decided: [/B]November 4, 2009
[B]Court: [/B]U.S.D.C. Eastern District of Louisiana
[B]Judge: [/B]Judge Lemmon
[B]Citation: [/B]2009 WL 3756594 (E.D.La.)[B]Findings of Fact - Conclusions of Law
[/B]This case was originally tried on October 22, 2009 as non-jury trial. Following the presentation of Anthony Mier’s (“Mier”) case, the defendant, Wood Towing LLC (“Wood Towing”) moved for Judgment on Partial Findings. The following are the findings of fact and law
The Court had denied Wood Towing’s motion for partial summary judgment which can be viewed here: http://www.jonesactquestions.com/federal-circuits-a-state-decisions/598-david-anthony-mier-v-wood-towing-llc-et-al-.html
Mier slipped and fell while working as a deckhand while working aboard a barge owned by ARTCO. Mier filed an action under the Jones Act and unseaworthiness. At trial. Mier presented testimony of another deckhand. The other deckhand testified that the puddle Mier slipped in was slick and had been on the deck for “a while”.
Furthermore, the witness did not consider the puddle to be out of the ordinary and that had he seen it he would not have reported it because the deckhands were instructed to keep decks clean and free of debris and water.
According to testimony, the puddle was open and obvious and did not think it presented a problem and also acknowledged brooms and buckets were available to clean the puddle.
The boat captain testified he had inspected the deck from the position of his wheelhouse, 30 feet away from the location of the puddle, and observed no puddle on the deck. He also stated that the deckhands’ duties were to clear puddles such as the one Mier slipped in and Mier’s method to tighten the winch (activity he was performing while injured) was unusual.
The operations manager for Wood Towing also testified that it was routine to walk through water and grain on the job and while performing duties carried out by Mier.
Mier testified that he climbed onto the winch, and as he put his left foot to the ground, his feet went out from under him causing him to fall backwards onto the manhole cover. He described there were “puddles everywhere” but that they “just come with the job” moreover, he also stated that deckhands must “deal with spoiled meal (grain) on the deck”. Mier further admitted the puddle was open and obvious and he saw it in the 25 minutes he was on the barge and although he thought it was hazardous he failed to report .
This Court found, while a third party barge owner has a duty to exercise reasonable care, the employees also have the duty to exercise reasonable care for their own safety.*
Accordingly, this Court held that Mier failed to present sufficient evidence to prove by a preponderance of the evidence that either defendant, Wood Towing or ARTCO, breached a duty owed to plaintiff.
This is strictly a finding of fact and conclusion of law issued by the Court.* As stated previously by this Court, a third party barge owner, such as ARTCO, has a duty to exercise reasonable care under the circumstances. Moreover, the employer, Wood Towing, has a duty of care to the employee in certain circumstances.[/B]
[B]However, when fellow employees, and the plaintiff himself testify that the condition which caused the plaintiff injury was 1. Noticed* and 2. Normal in the work environment, proving the employer’s breach of a duty of reasonable care under the circumstances becomes significantly more difficult.[/B]
[B]Because the plaintiff, Mier, was unable to show that the owner of the barge or his employer breached a duty of care this Court dismissed his action. [/B]
[B]Steve Gordon [/B]