[B]Case Name: [/B]John Shields v. United States of America
[B]Dated Decided: [/B]December 21, 2009
[B]Court: [/B]U.S.D.C. Eastern District of Pennsylvania
[B]Judge: [/B]Judge Stengel
[B]Citation: [/B]2009 WL 5033971 (E.D.Pa.)[B]Background:
[/B]Plaintiff, John Shields, filed this tort action against the United States claiming that he suffered extensive injuries on the part of the US, the operator of the U.S.S. Blue Ridge. Both parties agreed that Shields was covered under the Longshore Harbor Workers’ Compensation Act, LHWCA.
The U.S.S. Blue Ridge is a military vessel owned and operated by the United States. Sometime on or around May 18, 2006, a fan room aboard the vessel became flooded with human waste and sewage from a nearby restroom facility. Human waste leaked into the Fleet Intelligence Center and directly onto computer equipment.
After cleaning up the mess, Navy personnel attempted to “re-energize” the computer in the center but it failed to operate.
Charles McKinstry, an employer of Lockheed, dispatched Shields to perform repair work on the computer equipment. Shields arrived on the Blue Ridge and met with a Lieutenant Commander before beginning work on the damaged equipment. The Lieutenant informed Shields the equipment was safe and clean enough for work.
While working, Shields was scratched on his right arm by a plastic zip tie holding cables together inside the computer.
A few days later Shields bumped his arm again and it began to swell, eventually Shields was diagnosted with compartment syndrome and severe cellulitis. A pathologist indicated that it was the result of human waste contamination.
The US filed a motion for summary judgment claiming it was not liable for Shields’s injury.
[/B]Did this Court grant the US’s motion for summary judgment?
[/B]Under the LHWCA, there are (3) distinct duties ship owners owe to ship repair workers that, if breached, may result in a finding of negligence under 905(b) of the LHWCA.
Under the first duty, the turnover duty, the US argued that it is not applicable to Shields claim and it has not been violated. The US claimed that because Lockheed supervisors were made aware that human waste spilled into the computer room, and that the cleaning of the computer room did not resolve the operational problem it discharged its duty to warn Shields of any latent hazard.
Shields claimed that the active control duty, not the turnover duty applied to his claim. Under the active control duty the vessel must have substantially controlled or been in charge of (1) the area the hazard existed (2) the instrumentality which caused the injury or (3) the specific activities the stevedore undertook.
However, this Court noted that regardless of whether the turnover or active operations duty applied to Mr. Shields’ claim is irrelevant because determining that he could prevail on [I]any theory [/I]is enough to overcome summary judgment.
Shields has offered sufficient evidence to create a genuine issue of material fact regarding which duty applied, this Court found. Shields submitted depositions of his supervisor at Lockheed stating that Lockheed technicians are subject to restrictions while aboard Navy ships. Accordingly, requiring the technicians to report on the status of their work and check in with Navy personnel created genuine issues of fact whether the US retained substantial control over the computer equipment Shields was injured on.
Second, the Court determined whether Shields has established a prima facie case that the US breached the active operations duty imposed by the LHWCA.
This Court found that Shields presented sufficient evidence to prove a breach of the active operations duty. Importantly, the Court found that the use of water and stock detergent, not alcohol, could be considered an unreasonable failure to protect against danger from the presence of waste on the equipment.
Accordingly this Court denied the US’s Motion for Summary Judgment
Under the LHWCA “active operations duty” the plaintiff must prove the following elements: (1) The vessel appreciated, should have appreciated, or with the exercise of reasonable care would have appreciated, the condition (2) that the vessel knew or should have known that the condition posed an unreasonable risk of harm to a longshore worker, (3) that a longshore worker might reasonably fail to either discover the condition or appreciare the gravity and probability of the harm or protect himself from the danger. [/B]
[B]Finally, the plaintiff must show that the (4) vessel failed to take reasonable precautionary or remedial steps to prevent or eliminate the dangerous condition.[/B]
[B]Steve Gordon [/B]