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A man injured while performing contract work for a barge company failed to convince the 7th Circuit Court of Appeals to overturn summary judgment for the company.
Plaintiff-appellant Steven R. Smith was an employee of Mulzer Crushed Stone, where he worked as a Bobcat skid steer operator. Smith was working for Mulzer on a contract job with Crounse Corporation when he was injured in a workplace accident.
Specifically, in April 2017, Smith was clearing out the last foot of coal from a Crounse barge so that it could be loaded with Mulzer’s crushed stone. The job required him to operate a skid steer with a blade attached and positioned at its lowest height.
While driving 5 to 8 miles per hour, the blade ran into an obstruction on the steel floor of the hopper. The skid steer came to an abrupt stop, propelling Smith forward and into a safety bar after his seat belt failed.
The obstruction turned out to be a “scab” in the floor of the hopper. The 24-year-old barge’s seams of steel had split, causing a scab that was 12-14 inches long.
After the accident, Smith and his co-workers pushed coal away from the area and saw marks on the scab that Smith believed were caused by a sledgehammer. He also observed that the damage appeared old and had been hammered down, rather than welded into place.
Mulzer employees hammered the scab down and cleared the rest of the coal from the barge. An employee then emailed Crounse’s traffic department about the scab but didn’t mention that Smith had been injured.
Almost three years after the accident, Smith sued Crounse for the injuries he had sustained. He claimed violations of Section 905(b) of the Longshore and Harbor Workers’ Compensation Act, general maritime law and Indiana law.
Crounse moved for summary judgment, arguing there wasn’t any evidence it knew or should have known the scab was defect at the time of the accident, and even if it had known, everyone involved knew such a hazard could occur. Crounse also noted that Smith admitted the seatbelt, safety crossbar and speed of the skid steer caused his injuries.
The Indiana Southern District Court concluded Smith lacked evidence that Crounse had actual knowledge of the defect or that it should have known and, thus, failed to demonstrate that Crounse failed to comply with its turnover duties. The court thus granted summary judgment to Crounse.
On appeal, Smith argued the district court used the wrong standard to analyze the duty owed by the vessel owner to longshoremen employees of a stevedore. He also argued the court improperly excluded the opinion testimony of a lay witness and failed to construe the facts in a light most favorable to the nonmoving party.
Rejecting that argument, Judge Ilana Rovner wrote, “Smith had no personal knowledge of when the scab was created, how the marks that he observed were created, or whether Crounse or a third party had previously tried to repair the area with hammering or welding. He offered nothing other than speculation to support his opinion testimony. As is apparent from the actions of Mulzer employees on the day of Smith’s accident, it is possible that a prior stevedore created the scab and then hammered it down in order to complete the job, without Crounse’s knowledge.”
Rovner added that there wasn’t any evidence to support Smith’s claims that the damage was old.
“We have considered Smith’s other arguments and find none persuasive,” she concluded. “In the end, Smith produced no evidence demonstrating that Crounse knew or, in the exercise of reasonable care, should have known of the defect in the hopper floor. The district court correctly entered judgment in favor of Crounse.”
Senior Judge Kenneth Ripple and Judge Michael Brennan concurred.
The case is Steven R. Smith v. Crounse Corporation, 22-1303.
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