Thomas U. Rysz, Administrator of the Estate of Paul Rysz, Jr. v. Norwalk Marine Contractors, Inc. et al. (2014)

MEMORANDUM OF DECISION

FACTS

Thomas C. Rysz, in his capacity as Administrator of the Estate of Paul Rysz, Jr., brings this action against two defendants, Norwalk Marine Contractors, Inc. (Norwalk Marine) and Gardella Equipment Corporation (Gardella Equipment).   The Plaintiff's decedent died on July 3, 2009, as a result of a June 26, 2009 work-related accident.

On June 26, 2009, Paul Rysz, Jr. was employed by Norwalk Marine.   He was a member of Local 212 of the Carpenter's Union, and on June 26, 2009 was acting as the foreman on a barge which was anchored in Pine Creek, in the Town of Fairfield.

The name of the barge to which the Plaintiff's decedent was assigned as the crew foreman was the “Lynn.” The barge was captained by one Robert Carocari, who was also a Norwalk Marine employee.

The objective was to move the barge from Pine Creek, to Norwalk, where its mooring facility was located.   In order to move the barge, it was necessary to utilize a push boat known as “Tom Cat,” which was owned by Gardella Equipment.

Located on the barge was a crane.   On June 26, 2009, the crane was being operated by Robert Sansone, a Norwalk Marine employee assigned to the crew.

In order to begin the process of moving the Lynn to Norwalk, it was necessary to raise certain spuds, which had been used to secure the vessel in Pine Creek.   The spuds are forty (40)-foot-long steel beams, used to anchor the barge in the water.   They are secured through the use of three-foot-long steel pins.

Through the use of a crane, a spud was raised by Sansone.   The Plaintiff's decedent then decided to secure the spud, in its raised position.   During this process, Captain Carocari was situated in the wheelhouse.

As the decedent was pinning the spud, in order to secure it in a raised position, Captain Carocari ordered Sansone to drop the raised spud, because he noticed that the barge was drifting toward the dock.   Dropping the spud necessitated the complete removal of the steel pin.

During this procedure, the barge was connected to the push boat, “Tom Cat” owned by Gardella Equipment.   Gardella Equipment was formerly known as NMC Leasing Co.

Before the pin was completely removed, the crane operator, Sansone, on orders from Captain Carocari, dropped the spud.   As a result, the steel pin kicked back, striking the decedent on the right side of his face and neck.

The Plaintiff's decedent, Paul Rysz, Jr., fell to the deck, and into the water, as a result of the impact.   He died, seven days later, on July 3, 2006, as a result of his injuries.

In his four-count Amended Complaint, dated September 25, 2012, the Administrator has pled claims against both Norwalk Marine and Gardella Equipment.   Claims are made, pursuant to 46 USC 30104(a), known as the “Jones Act.” The statute reads:

Cause of Action—A seaman injured in the course of employment, or, if the seaman dies from the injury, the personal representative of the seaman, may elect to bring a civil action at law, with the right to trial by jury, against the employer.   Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.

Count one alleges negligence on the part of Norwalk Marine, acting through its agents and employees, while Count two claims that the “Lynn,” the barge, was unseaworthy.

In Count three, the Plaintiff maintains that Gardella Equipment, acting through its agent, Captain Carocari, was negligent.   Count four claims that the push boat owned by Gardella Equipment, the “Tom Cat,” was not seaworthy on June 26, 2009.

Both Defendants have moved for summary judgment.   They claim that the Plaintiff's decedent, as a matter of law, is not a “seaman” within the meaning of the Jones Act, and that any claims against Norwalk Marine are barred by the exclusivity provision of the Connecticut Workers' Compensation Act, § 31–284a 1 of the General Statutes.

The Defendants also argue, as to Gardella Equipment, that no duty is owed as a matter of law to the Plaintiff's decedent.

The Plaintiff acknowledges, and has pled, that was employed by Norwalk Marine on June 26, 2009, and was acting within the scope of his employment.   He admits that both Robert Sansone and Captain Robert Carocari were co-employees.

The Administrator admits that § 31–284a sets up a bar to any action against the decedent's employer, Norwalk Marine.   He does not contend that the employer, acting through its employees, committed an intentional tort or engaged in wilful misconduct.  Suarez v. Dickmont Plastic Corp., 229 Conn. 99, 106 (1994);  Jett v. Dunlap, 179 Conn. 215, 217 (1979).

The causes of action pled by the Plaintiff are premised on provisions of the Jones Act. The Plaintiff maintains that the question of whether Paul Rysz, Jr. was a “seaman,” represents a question of fact which is not susceptible to summary judgment.

STANDARD OF REVIEW—SUMMARY JUDGMENT

A trial court may appropriately render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to a judgment as a matter of law.  Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986);  D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980).   Connecticut Practice Book § 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.”

The burden is on the moving party to show quite clearly what the law is, and that it excludes any real doubt as to the existence of any genuine issue of material fact.  Fogarty v. Rashaw, 193 Conn. 442, 445 (1984).   The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict, were the trial before a jury.  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).   In determining a motion for summary judgment, a trial court must view all of the evidence in the light most favorable to the nonmoving party.  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202 (1995).

Although the purpose of a motion for summary judgment is to test for the presence of contested factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, where the defect cannot be cured by repleading.  Larobina v. McDonald, 274 Conn. 392, 401 (1995).

THE CLAIM THAT PAUL RYSZ, JR. WAS A “SEAMAN” ON JUNE 26, 2009, RAISES A GENUINE ISSUE OF MATERIAL FACT.

The Jones Act, while recognizing a cause of action on behalf of a seaman or his representative, does not define the term “seaman.”   In light of this legislative non-action, Federal courts have been forced to grapple with the task of formulating a workable definition or formula.

In Chandris v. Latsis, 515 U.S. 347 (1995), the United States Supreme Court, faced with differing interpretations of the definition of “seaman,” under the Jones Act, established a test which is fact-based, and case specific.   The Court determined that a “seaman” is an individual:  1) whose duties must have contributed to the functioning of a vessel, or the accomplishing of its mission, and 2) the individual must have a connection to a vessel in navigation (or to an identifiable group of vessels) that is substantial, in terms of its duration and nature.  Chandris v. Latsis, supra, 370.   The Chandris Court identified what it termed an “appropriate rule of thumb” to be used in determining who is a seaman, stating that a worker who spends less than thirty (30) percent of his time in the service of a vessel in navigation should not qualify as a seaman.   The thirty (30) percent figure is, however, only a “guideline,” not a Draconian rule.  Chandris v. Latsis, supra, 371.

Under the Jones Act, there is no requirement that a seaman must aid in the navigation of a vessel.   It is only necessary that the individual be employed on board a vessel, in furtherance of its purpose.  McDermott International, Inc. v. Wilander, 498 U.S. 337, 346 (1991).   The term “seaman,” from the beginning, has been construed broadly under the Jones Act. Stevadoring Co. v. Haverty, 272 U.S. 50, 52 (1926).

The Defendants argue that the Plaintiff's decedent was a “land based” employee, who spent one percent of his time on a vessel.   The Plaintiff counters, by insisting that records maintained by Norwalk Marine demonstrate that Paul Rysz, Jr. logged 2,771 hours between 1998 and 2009 which were characterized as marine hours.   That figure represents 32.7 percent of his total hours, 8,468.50 hours.

It must be recognized, based on the express language of Chandris that the thirty (30) percent figure is not talismanic.   However, even assuming the percentage to be a hard and fast standard, a question of fact is presented concerning the number of hours attributed to activities on a vessel.

Employing the Chandris test, reveals that genuine issues of material fact are present.   On June 26, 2009, the decedent, Paul Rysz Jr., was the foreman on a barge which was being moved from Pine Creek in Fairfield, to a location in Norwalk.   The first prong of the Chandris test is therefore satisfied.

Concerning his connection with the vessel, or to vessels owned or used by the Defendants, genuine issues of material fact abound.   Only where facts bearing upon an individual's status as a seaman are undisputed, may a court take the issue from the province of the jury, and grant a motion for summary judgment.   Chandris v. Latsis, supra, 371.

The motion for summary judgment as to Count one must therefore be denied.

Concerning Count three, the count addressed to Gardella Equipment, the Plaintiff claims that Captain Carocari was the agent of Gardella Equipment, acting within the scope of his agency.   While proof of this issue at trial may prove problematic, a genuine issue of material fact has been raised, and summary judgment must be denied.

ISSUE OF SEAWORTHYNESS RAISES QUESTIONS OF FACT

Counts two and four claim that the barge and the push boat, respectively, were not “seaworthy” on June 26, 2009.

As to Count four, a claim is also made that the Defendant, Gardella Equipment, owed no duty to the Plaintiff's decedent.

In a negligence action, the existence of a duty involves a two-fold analysis 1) a determination of whether an ordinary person, in the defendant's position, would anticipate that harm of the general nature of that suffered by the plaintiff was likely to result if care was not exercised, and 2) a determination, based on policy considerations, of whether the defendant's responsibility for its negligence should extend to the particular consequence or to a particular plaintiff.  Jaworski v. Kiernan, 241 Conn. 399, 404–05 (1997).

The concept of “unseaworthyness” is much broader than negligence.   The duty to furnish a seaworthy vessel is absolute, and completely independent of the duty under the Jones Act to exercise reasonable care.  Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 412 (1953).   There is a complete divorcement of unseaworthyness liability from concepts of negligence.  Mitchell v. Trawler Racer, 362 U.S. 539, 550 (1960).  (Rail slippery due to fish gurry and slime.)

The scope of unseaworthyness may involve the defective condition of a physical part of the ship itself, defective gear, lack of repair, an unfit crew, the number of crewmen assigned to a particular task, the method or loading cargo, the manner of stowage, or other related reasons.  Usner v. Luekenbach Overseas Corp., 400 U.S. 494, 499 (1971).

It cannot be said as a matter of law, that no duty was owed by Gardella Corporation to the Plaintiff's decedent.   While proof of unseaworthyness as to the Tom Cat may prove problematic at trial, summary judgment must be denied.

The issue of the unseaworthyness of the Lynn, the barge, raises multiple questions of fact, ill suited for summary judgment.

Therefore summary judgment as to Counts two and four must be denied.

CONCLUSION

The motion for summary judgment filed on behalf of both of the named defendants is DENIED.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 31–284a, C.G.S.—”(a) An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained ․”.  FN1. Section 31–284a, C.G.S.—”(a) An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained ․”

Radcliffe, Dale W., J.