Scott, Russell A. v. Trump IN Inc

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2908
RUSSELL A. SCOTT and LAUREN SCOTT,
Plaintiffs-Appellants,
v.
TRUMP INDIANA, INC., a corporation;
LOLA CRANE RENTAL COMPANY, a
corporation; and MARK NICHOLS,
Defendants-Appellees,
and
MGI AMERICA, INC., a corporation, d/b/a
TOTAL MARINE SAFETY CENTER,
Defendant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2001—John A. Nordberg, Judge.
____________
ARGUED FEBRUARY 21, 2002—DECIDED JULY 28, 2003
____________
Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.
and WILLIAMS, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. Plaintiff-appel-
lant Russell Scott (“Scott”) was seriously injured on April 4,
1997, while standing on a pier at Buffington Harbor, Indi-
ana. At the time of his injury, Scott was employed as the
training director for MGI America, Inc., d/b/a Total Marine
2 No. 01-2908
Safety Center (“Total Marine”). Total Marine was engaged
in the business of fulfilling safety requirements for owners
of marine vessels. Total Marine contracted with Trump
Indiana, Inc. to design, install, and maintain the lifesaving
equipment required by the United States Coast Guard for
the vessel Trump Casino, a gambling establishment.1 As a
part of its agreement with Trump Indiana, Total Marine
supplied and serviced the Trump Casino’s life rafts and
provided life raft training to Trump Casino employees.
Scott was an experienced seaman, having served in the
U.S. Coast Guard for over twenty years prior to beginning
his career with Total Marine. As a part of his job with Total
Marine, Scott developed a training course on the deploy-
ment of life rafts and the safe evacuation of a ship in the
event of trouble. Scott taught this course to personnel from
the Trump Casino and other Total Marine clients. The
majority of the training was conducted at the Total Marine
facility located in Mokena, Illinois; however, Scott esti-
mated that he spent about twenty-five percent of his time
on clients’ vessels, either “servicing or doing needs analysis,
developing training or doing on-site training.”
On April 4, 1997, a life raft drill was held for the Trump
Casino. This drill was required by the U.S. Coast Guard to
prove satisfactory operation of the Trump Casino’s life
safety system. Scott was present during the drill, spending
time both on the Trump Casino and on land. As a part of
the drill, one of the Trump Casino’s life rafts was inflated
and deployed into the water by Trump Casino personnel.
While the life raft was being launched, Scott observed the
drill from the upper decks of the Trump Casino to evaluate
whether Trump Casino employees launched the raft cor-
rectly. After the raft was launched, it was towed to an aux-
1
The U.S. Coast Guard is the governing marine authority for the
vessel Trump Casino.
No. 01-2908 3
iliary pier to be lifted out of the water and placed on a truck
for transport to the Total Marine facility where the raft
would be inspected and repackaged for eventual return to
the Trump Casino.
While most vessels the size of the Trump Casino have a
crane on-board, the Trump Casino did not. Therefore, prior
to the drill, Total Marine hired Lola Crane to provide a
hydraulic truck crane and crane operator to lift the inflated
life raft from the water. Mark Nichols drove the truck crane
to Buffington Harbor and positioned the crane on the aux-
iliary pier. When the deployed raft was brought to the
auxiliary pier, Total Marine employees who were in the raft
connected the crane ball to the raft. While other employees
of Total Marine were actually in the life raft during the
drill, Scott himself never entered the life raft. Scott was
standing on the auxiliary pier when the life raft was being
lifted out of the water. As Nichols used the crane to lift the
boat out of the water and across the pier, a gust of wind
caused the boat to sway. The boat struck Scott in the head,
and Scott suffered a severe closed head injury with massive
intra-cerebral swelling requiring a craniotomy.
On April 3, 2000, Scott and his wife, Lauren Scott, filed
a six-count complaint in the United States District Court
for the Northern District of Illinois. Counts I and II alleged
claims against Total Marine under the Jones Act, 46 U.S.C.
§ 688 et seq. Counts III and IV alleged claims against
Trump Indiana under § 905(b) of the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 905.
Counts V and VI alleged claims against Lola Crane and
crane operator Mark Nichols under general maritime jur-
isdiction, 28 U.S.C. § 1333.22
We will use the terms “maritime jurisdiction” and “admiralty
jurisdiction” interchangeably throughout this opinion because the
cases we will discuss use both terms.
4 No. 01-2908
The district court granted summary judgment in favor of
Lola Crane and Nichols on February 22, 2001, stating the
Scotts failed to satisfy the requirements of federal admi-
ralty jurisdiction in their claims against these defendants.
Specifically, the district court held that Scott’s injury was
not caused by a vessel on navigable waters. On February
27, 2001, the district court granted Total Marine’s motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), holding that
the Scotts failed to make any allegations of facts that could
arguably establish jurisdiction under the Jones Act. On
June 19, 2001, the district court granted summary judg-
ment in favor of Trump Indiana. While noting it had doubts
as to whether Scott was covered by the LHWCA, the court
held that, even assuming Scott would be covered by the
LHWCA, there was no evidence of any negligence by the
Trump Casino. The Scotts filed a timely notice of appeal,
challenging the district court’s rulings with respect to Lola
Crane, Nichols, and Trump Indiana. The Scotts do not
appeal the court’s ruling on Total Marine’s Rule 12(b)(6)
motion to dismiss.
ANALYSIS
A. Lola Crane and Mark Nichols
We review a district court’s legal determination as to
whether subject matter jurisdiction exists de novo, while
the district court’s factual determinations are reviewed for
clear error. Weaver v. Hollywood Casino-Aurora, Inc., 255
F.3d 379, 381 (7th Cir. 2001). Article III of the Constitution
grants federal jurisdiction over “all Cases of admiralty and
maritime Jurisdiction.” U.S. Const. art. III, § 2. Under 28
U.S.C. § 1333, “[t]he district courts shall have original juris-
diction, exclusive of the courts of the States, of: (1) Any civil
case of admiralty or maritime jurisdiction, . . . .” Tradition-
ally, admiralty tort jurisdiction existed only when the tort
in question occurred on navigable waters. Jerome B.
No. 01-2908 5
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.
527, 531-32 (1995). However, in 1948, Congress enacted the
Extension of Admiralty Jurisdiction Act, 48 U.S.C. app.
§ 740, which provides, “The admiralty and maritime juris-
diction of the United States shall extend to and include all
cases of damage or injury, to person or property, caused by
a vessel on navigable water, notwithstanding that such
damage or injury be done or consummated on land.”
Following the Extension of Admiralty Jurisdiction Act,
courts have established a two-part test to use in determin-
ing whether admiralty jurisdiction exists. “A party seeking
to invoke federal admiralty jurisdiction pursuant to 28
U.S.C. § 1333(1) over a tort claim must satisfy conditions
both of location and of connection with maritime activity.”
Grubart, 513 U.S. at 534. “A court applying the location test
must determine whether the tort occurred on navigable
water or whether injury suffered on land was caused by
a vessel on navigable water.” Id. (citing 46 U.S.C. app.
§ 740). The connection with maritime activity assessment,
also known as the nexus test, examines two issues, first,
whether the incident in question has “a potentially disrup-
tive effect on maritime commerce,” and second, “whether
the general character of the activity giving rise to the inci-
dent shows a substantial relationship to traditional mari-
time activity.” Weaver, 255 F.3d at 382 (internal quotations
and citations omitted).
We focus first on the location prong. It is undisputed that
the alleged tort did not occur on navigable water. Therefore,
for admiralty jurisdiction to exist, Scott’s injury must have
been “caused by” the vessel Trump Casino. The Supreme
Court has interpreted the Extension of Admiralty Jurisdic-
tion Act’s use of the phrase “caused by” as requiring proxi-
mate causation. Grubart, 513 U.S. at 536. For purposes of
the locality test, an “appurtenance” to a vessel is treated as
part of the vessel itself. Id. at 535. We must determine,
therefore, whether Scott’s injury was caused by an appurte-
6 No. 01-2908
nance to the Trump Casino. Appellants contend that it was,
arguing that both the life raft and the crane qualify as
appurtenances.
Appellants liken their case to Gutierrez v. Waterman
Steamship Corp., 373 U.S. 206, 209-10 (1963), in which the
Supreme Court held jurisdiction existed under the Exten-
sion of Admiralty Jurisdiction Act when a longshoreman
was injured after slipping on loose beans that had leaked
from a defective cargo container which had been unloaded
from a ship. The Gutierrez court held the cargo containers
constituted a part of the ship’s “gear.” Id. at 215. In its later
decision in Victory Carriers, Inc. v. Law, 404 U.S. 202, 210-
11 (1971), the Supreme Court characterized its decision in
Gutierrez as turning “upon the fact that [Gutierrez’s] injury
was caused by an appurtenance of a ship, the defective car-
go containers.”
The Supreme Court in Victory Carriers again addressed
an injury to a longshoreman working on a pier. In Victory
Carriers, the plaintiff was injured while driving a forklift
truck on a pier where the S.S. Sagamore Hill was docked.
As the plaintiff was operating the forklift, the forklift’s
overhead protection rack came loose and fell on him, injur-
ing him. Victory Carriers, 404 U.S. at 203. At the time of his
injury, plaintiff was moving cargo to a point from which it
would eventually be hoisted onto the Sagamore Hill by the
ship’s own gear. Id. The forklift at issue was owned by
plaintiff’s stevedore employer. Id. Declining to “extend the
reach of federal law to pier-side accidents caused by a ste-
vedore’s pier-based equipment,” the Supreme Court held
maritime law did not apply. Id. at 204.
The Eleventh Circuit recently addressed the question of
when an item is an appurtenance to a vessel in Anderson v.
United States, 317 F.3d 1235 (11th Cir. 2003), petition for
cert. filed, 71 U.S.L.W. 3791 (U.S. Apr. 7, 2003) (No. 02-
1822). The plaintiff in Anderson was injured when an air-
craft launched from the aircraft carrier USS John F.
No. 01-2908 7
Kennedy during a training mission released two bombs
which missed their target and impacted near Anderson’s
work site. Id. at 1236. The Eleventh Circuit held that the
aircraft was an appurtenance to the Kennedy at the time of
Anderson’s injuries. Id. at 1238. In reaching this conclusion,
the court noted the following definition of an appurtenance:
“ ‘any specifically identifiable item that is destined for use
aboard a specifically identifiable vessel and is essential to
the vessel’s navigation, operation, or mission.’ ” Id. (quoting
Gonzalez v. M/V Destiny Panama, 102 F.Supp.2d 1352,
1354-57 (S.D. Fla. 2000)). The court found that the aircraft
was assigned to the Kennedy and was housed on the ship,
that its operations were controlled by personnel aboard the
Kennedy at all times, and that, at the time Anderson was
injured, the aircraft was carrying out the Kennedy’s
mission. Id.Turning to the facts of the present case, it is clear that
the crane was not an appurtenance to the Trump Casino.
The crane was a completely land-based piece of equipment
that was hired by Total Marine for one day. The fact that
other vessels the size of the Trump Casino generally have
a crane on-board is immaterial. The crane in the present
case was never aboard the Trump Casino. It was not
mounted on or in any way physically connected to the
vessel. Additionally, the crane was never under the control
of Trump Casino personnel. Total Marine hired Lola Crane,
and Nichols drove the crane to the pier and operated it.
Considering all the relevant case law, the crane is most
similar to the forklift at issue in Victory Carriers. The crane
was not stored on board or a part of the ship’s usual gear,
it was not attached to the ship in any way, it was not under
the control of the Trump Casino or its crew, and Scott’s
injury did not occur aboard the ship or on its gangplank.
See Victory Carriers, 404 U.S. at 213-14. Were we to adopt
appellants’ argument, we would be extending the bounds of
admiralty jurisdiction to include a pier-side accident caused
8 No. 01-2908
by a pier-based piece of equipment that was not owned or
operated by a vessel or its crew. This is a step that we, like
the Supreme Court in Victory Carriers, are unwilling to
take.
The determination as to whether the life raft was an
appurtenance of the Trump Casino is a closer question. Ap-
pellants characterize the life raft as “equipment of the
Trump vessel which was in the course of a ‘round trip’ to be
deflated, repacked and eventually replaced as part of the
vessel’s safety requirements.” Clearly, the life raft was a
part of the Trump Casino’s usual gear. Additionally, a
satisfactory life safety system was required to allow the
Trump Casino to operate. However, unlike the aircraft in
Anderson, which was controlled at all times by personnel
aboard the Kennedy, see Anderson, 317 F.3d at 1238, at the
time of Scott’s injury, the life raft was not under the control
of Trump Casino personnel. See also Victory Carriers, 404
U.S. at 214 (noting that at the time of the injury the forklift
was not under the control of the ship or its crew). Total
Marine employees attached the life raft to the crane ball,
and, as appellants note in their brief, “Nichols was in con-
trol of the lifting procedure at all times.” Given the unique
facts of this case, we believe that at the time the life raft
was being hoisted across the pier by Nichols, it could no
longer be considered an appurtenance of the Trump Casino.
However, even assuming the life raft could be considered
an appurtenance at the time of Scott’s injury, appellants
fail to allege the life raft proximately caused Scott’s injury.
Unlike the situation in Gutierrez, Scott’s injury was not
caused by a defect in the life raft. The present case is simi-
lar to Margin v. Sea-Land Services, Inc., 812 F.2d 973 (5th
Cir. 1987). In Margin, the plaintiff was injured when he
slipped while attempting to avoid being struck by a hatch
cover from the M/V Boston, which was being lowered by a
dock-based crane that was owned and operated by a ste-
No. 01-2908 9
vedoring company. Id. at 974. The Supreme Court examined
Margin in a footnote in Grubart, noting that the case
“turned not on the condition of the hatch cover, the putative
appurtenance, but on the fact that the plaintiff did not
allege that ‘vessel negligence proximately caused his injury.’
”
Grubart, 513 U.S. at 535 n.1 (quoting Margin, 812 F.2d at
977). In their claims against Lola Crane and Nichols,
appellants do not allege the life raft caused Scott’s injury.
Rather, appellants contend that Scott’s injury resulted from
the negligent and careless maintenance, operation, and
control of the crane. Based on the record evidence, it cannot
be said that Scott’s injuries were caused by a vessel in
navigable waters or its appurtenances. Because the Scotts
cannot satisfy the locality test, general admiralty jurisdic-
tion does not exist for their claims against Lola Crane and
Nichols, and we need not address the nexus test. State, not
federal, law governs any claims the Scotts may have against
Lola Crane and Nichols. We vacate the district court’s grant
of summary judgment and dismiss the Scotts’ claims
against Lola Crane and Nichols for lack of subject matter
jurisdiction.
B. Trump Indiana
In Counts III and IV of their complaint, the Scotts al-
leged claims against Trump Indiana under § 905(b) of the
LHWCA. Trump Indiana moved for summary judgment,
arguing that Scott was not covered by the LHWCA. For
purposes of analysis, the district court assumed Scott fell
under the protection of the LHWCA. Nevertheless, the court
granted summary judgment in favor of Trump Indiana,
holding that there was no evidence of any negligence by the
Trump Casino.
We review a district court’s grant of summary judgment
de novo. Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944,
950 (7th Cir. 2000). Summary judgment is appropriate when
the record, viewed in the light most favorable to the non-
10 No. 01-2908
moving party, shows “that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c).
[T]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an ele-
ment essential to that party’s case, and on which that
party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In our
analysis, we view the evidence in the light most favorable
to the Scotts and draw all reasonable inferences in their
favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
Under § 905(b) of the LHWCA,
[i]n the event of injury to a person covered under this
chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages
by reason thereof, may bring an action against such
vessel as a third party in accordance with the pro-
visions of section 933 of this title.
33 U.S.C. § 905(b). The coverage section of the LHWCA, 33
U.S.C. § 903, provides,
compensation shall be payable under this chapter in
respect of disability or death of an employee, but only if
the disability or death results from an injury occurring
upon the navigable waters of the United States (includ-
ing any adjoining pier, wharf, dry dock, terminal,
building way, maritime railway, or other adjoining area
customarily used by an employer in loading, unloading,
repairing, dismantling, or building a vessel).
33 U.S.C. § 903(a). The LHWCA was amended in 1972 to
define the term “employee” to mean “any person engaged
in maritime employment, including any longshoreman or
No. 01-2908 11
other person engaged in longshoring operations, and any
harbor-worker including a ship repairman, shipbuilder, and
ship-breaker.” 33 U.S.C. § 902(3). In 1984, § 902(3) was
amended to specifically exclude from coverage various cate-
gories of workers if the individuals are covered by a state
workers’ compensation law. 33 U.S.C. § 902(3)(A)-(H).
Section 902(3)(D) expressly excludes “individuals who (i) are
employed by suppliers, transporters, or vendors, (ii) are
temporarily doing business on the premises of an employer
[as defined in the Act], and (iii) are not engaged in work
normally performed by employees of that employer under
this chapter.”
While basing its decision on a different issue, the district
court noted that Scott appeared “to be potentially excluded
[from LHWCA coverage] by the vendor exception,” 33 U.S.C.
§ 902(3)(D). However, before we reach the § 902(3) excep-
tions, we must examine the threshold question of whether
Scott was engaged in maritime employment. See Bienvenu
v. Texaco, Inc., 164 F.3d 901, 909 (5th Cir. 1999) (en banc)
(“If a person who would otherwise be covered under the
LHWCA does the type of work enumerated by one of these
amendments and is covered by a state workman’s compen-
sation act, he is not covered by the LHWCA.”). The Su-
preme Court examined the term “maritime employment” in
Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985), noting
that in enacting the 1972 Amendments to the LHWCA,
“Congress did not seek to cover all those who breathe salt
air.” Id. at 423. The Court interpreted Congress’s purpose
as covering “those workers on the situs who are involved in
the essential elements of loading and unloading; it is ‘clear
that persons who are on the situs but not engaged in the
overall process of loading or unloading vessels are not
covered.’ ” Id. (quoting Northeast Marine Terminal Co. v.
Caputo, 432 U.S. 249, 267 (1977)). The Court noted that
while the term “maritime employment” was not limited to
the occupations specifically listed in § 902(3), that is “any
12 No. 01-2908
longshoreman or other person engaged in longshoring oper-
ations, and any harbor-worker including a ship repairman,
shipbuilder, and ship-breaker,” neither could “it be read to
eliminate any requirement of a connection with the loading
or construction of ships.” Id. at 423-24.
Under the facts of this case, Scott cannot show that he
was involved in maritime employment. Scott’s position with
Total Marine was Director of Training. As such, he spent
his time on clients’ vessels “servicing or doing needs anal-
ysis, developing training or doing on-site training.” While
Scott’s brief states he was “directing” a safety drill at the
time he was injured, there is no evidence to that effect.
Scott, in his affidavit, stated he was “participating” in the
drill. The evidence in the record shows Scott was not an
active participant but rather observed the drill from the
vessel’s upper deck and from land. As the Scotts’ acknowl-
edge in their Statement of Facts, “[a] successful demonstra-
tion for the Coast Guard by Trump crew members was
necessary to enable the Trump vessel to operate on the
navigable waters of Lake Michigan.” (emphasis added).
Scott was not involved in maritime employment, and there-
fore, he falls outside the scope of the LHWCA. The district
court correctly granted summary judgment in favor of
Trump Indiana.
CONCLUSION
Appellants’ claims against Lola Crane and Mark Nichols
are DISMISSED for lack of subject matter jurisdiction. The
district court’s grant of summary judgment in favor of
Trump Indiana is AFFIRMED.
No. 01-2908 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-28-03