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Gross v. Tonomo Marine

March 9, 2006

STEPHEN GROSS, PLAINTIFF,
v.
TONOMO MARINE, INC., DEFENDANT.



FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF COURT

On July 29, 2002 Plaintiff Stephen Gross ("Plaintiff") filed a Complaint in Admiralty against defendant Tonomo Marine, Inc. ("Defendant"). Plaintiff alleges that Defendant negligently operated a barge-mounted crane on the Monongahela River. Specifically, Plaintiff alleges that he was struck in the head and back by some part of Defendant's crane while helping to unload steel billets from a river barge onto a flat bed tractor-trailer truck.

The case was originally assigned to the Honorable William L. Standish, and was reassigned to this member of the Court on October 7, 2002. The case was then referred to United States Magistrate Judge Amy Reynolds Hay, who granted Plaintiff leave to file a First Amended Complaint in Admiralty. The case was later assigned to Magistrate Judge Lisa Pupo Lenihan, who recommended that the Court grant summary judgment in favor of Plaintiff on the issue of whether Defendant's barge-mounted crane was a "vessel" for purposes of subject matter jurisdiction. Document No. 43. No objections to the Magistrate Judge's Report and Recommendation ("R&R") were filed, and the Court adopted the R&R as its opinion. Document No. 44. The case was then referred back to the undersigned for trial. A non-jury trial commenced on January 9, 2006 and concluded the next day. The record was kept open for thirty days at the request of counsel for additional evidentiary filings. The Court also afforded the parties an opportunity to submit post-trial proposed findings of fact and conclusions of law. Plaintiff has submitted PLAINTIFF'S REVISED FINDINGS OF FACT AND CONCLUSIONS OF LAW (Document No. 85), as well as the deposition testimony of two witnesses on damages (Document Nos. 83 & 84). Defendant has filed SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW OF DEFENDANT TONOMO MARINE, INC. (Document No. 86), as well as its MEMORANDUM OF LAW (Document No. 87).*fn1 The issues have been fully briefed, and the matter is ripe for disposition. Accordingly, the Court enters the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). For the reasons that follow, the Court finds in favor of Defendant and will enter judgment accordingly.

Findings of Fact

1. At some time prior to June 13, 2000, Defendant entered into an agreement with Riverview Steel to unload steel billets from a barge on the Monongahela River and transport them to Riverview Steel. Defendant hired Richard Lawson Excavating to transport the steel billets from the dock landing to Riverview Steel.

2. The dock landing was located in Glassport, Pennsylvania. Defendant's own dock landing was not used in the unloading of the barge because of insufficient space to maneuver large trucks. Instead, the barge was unloaded at a nearby dock landing owned by Mon Valley Transportation.

3. Before the job started, Ed McGavitt ("McGavitt"), President of Defendant, held a meeting with Richard Lawson Excavating to discuss the procedure to do the job for Riverview Steel. It was agreed that Defendant would handle the marine side of the operation and Richard Lawson Excavating would handle the shore side of the operation, including the loading of the trucks.

4. On June 13, 2000, the date of the alleged incident, Plaintiff was employed by Richard Lawson Excavating as a heavy equipment operator. Joint Stipulation at ¶ 1. During a lull in the excavating business, Plaintiff was directed by his employer to report to the dock landing of Mon Valley Transportation to assist in the loading of the steel billets onto trucks.

5. Mark Miller ("Miller") was a truck driver employed by Richard Lawson Excavating. Miller and Plaintiff worked together as a team in the loading of the billets. Miller's truck was parked parallel to the wall of the dock landing while the steel billets were loaded.

6. The steel billets, which are akin to long steel beams, were approximately 30 feet in length and measured approximately 4 inches by 4 inches square. Six to eight billets were bundled together, and one bundle of billets was moved at a time.

7. The billets were unloaded from the barge by use of a crane called the "MODCO" (the "MODCO" or "the crane").*fn2 The MODCO was situated on a barge in the Monongahela River.*fn3 At all relevant times the MODCO was operated exclusively by Richard Shimko ("Shimko"), who was employed by Defendant.*fn4 Shimko was an experienced crane operator and had operated the MODCO since 1996.

8. The process of unloading the barge was carried out as follows: Defendant's employees on the barge would place a cradle and sling made from chain around the billets. The chains were fastened to each end of the billets and were connected to a spreader beam. The spreader beam was 20 feet in length and weighed two to two and one-half tons (4,000-5000 lbs.). Directly above and attached to the spreader beam was a shiv block. The shiv block was essentially a multi-cable pulley and weighed approximately 1,000 pounds. Multiple lengths of cable (approximately seven) connected the shiv block to the boom of the crane.

9. Once the two chains were attached to the billets and all of the slack was taken out of the chains, the billets would hang approximately ten (10) feet below the spreader beam.

10. After the billets were chained to the spreader bar, the crane would lift them from the barge and swing into position over the trailer. In order to avoid confusion, only Miller would convey hand signals to Shimko. Miller's testimony reflected that he was well-versed in the use of hand signals. Additionally, Shimko verified that Miller and other truck drivers knew the hand signals that would be used.

11. When the billets were positioned above the trailer, Plaintiff and Miller would manually guide them into proper position to be lowered onto the trailer. Miller would then use hand signals to direct Shimko to lower the load onto the trailer. After the load came to rest on the trailer, Miller and Plaintiff would detach the two chains which the crane would lift away and the process would be repeated.

12. Miller worked at the tractor end of the trailer and Plaintiff worked at the back end of the trailer. Miller and Plaintiff had to use their hands to physically guide the billets into position so that they could be lowered into position on the trailer deck. Their practice was to wait until the billets were approximately two feet above the deck of the trailer before they climbed onto the trailer to guide the billets into position.

13. The workers employed by Defendant did not instruct or supervise Miller or Plaintiff in the manner in which the steel billets were loaded onto the trailer.

14. There is no credible evidence that the MODCO malfunctioned on the day of the alleged incident or was otherwise defective. The MODCO had to be inspected and certified every year, which included an inspection of all of its moving parts. The MODCO had been properly inspected and certified as of June 13, 2000.

15. There was conflicting testimony at trial about whether an accident involving Plaintiff occurred on June 13, 2000. Those witnesses who testified that an accident did in fact occur gave inconsistent testimony about how the alleged accident occurred.

16. Plaintiff testified that there was an accident on June 13, 2000. Plaintiff testified that he and Miller had loaded about three or four bundles of billets prior to the accident. According to Plaintiff, a bundle of billets started to slip off of the side of the trailer while he and Miller attempted to maneuver it into position. Miller allegedly signaled the crane operator to lift the billets back up so that they could be repositioned. When the billets were approximately at knee height, they allegedly dropped suddenly and hit the deck of the trailer. Plaintiff testified that the spreader beam hit him on the head and shoulders, and as a result he was pinned down on the deck of the trailer by the spreader beam. Plaintiff further testified that he lost consciousness for eight (8) to ten (10) minutes, and that Miller, Fritz Lawson and some of Defendant's employees moved the spreader beam off of his body.

17. As explained below, the Court does not credit Plaintiff's version of what occurred at the job site. However, it is undisputed that Plaintiff went to the Emergency Room of Jefferson Hospital on June 13, 2000, where he complained of a laceration of the left wrist and soreness in his lower back with radiation down his left leg. Defendant's Exhibit F (typed narrative of examination). Plaintiff was interviewed by the triage nurse at Jefferson Hospital at 1609 hours, or 4:09 p.m. Id. Contrary to the testimony of McGavitt, Plaintiff testified that he was ...


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