A barge company argues that a man’s lawsuit alleging he slipped on ice, fell into the Mississippi River during a snowstorm and became trapped under the barge should be dismissed because the incident was the result of the natural accumulation of snow and ice and was not foreseeable.
Defendant American River Transportation Co. filed a motion to dismiss on Dec. 23 through attorney Theodore Lucas of Fox Smith LLC in St. Louis.
The defendant argues that plaintiff Herbert Hardimon does not allege that the barge he was assigned to clean when he fell was an American River Transportation vessel or that it was involved in the breakaway.
“Here, plaintiff alleges that the ice on the barge he was boarding to clean caused him to slip and fall,” Lucas wrote in the memorandum in support of the motion to dismiss. “The only negligence alleged against ARTCO is for the prior breakaway, not the ice.”
“There is no allegation that the breakaway somehow caused the icy conditions, or even that ARTCO failed to warn of or remove the ice,” Lucas added.
The defendant argues that the only possible connection between the breakaway and the incident is that Hardimon would not have been on the barge that he fell from if he had not been sent to the location of the breakaway barges.
“Even if this is true, there is no allegation that plaintiff’s activities or the conditions were any more dangerous or otherwise differed from what they would have been had he not been assigned to that location that day,” Lucas wrote.
The memorandum states that boarding barges to clean them “is precisely what constituted most of plaintiff’s normal work.”
The motion adds that the complaint fails to show a cause between the breakaway and the incident or a duty of care by American River Transportation. The defendant argues that a duty did not exist because Hardimon’s injuries were not foreseeable.
“Even if plaintiff’s allegations are true, merely causing someone to be in the location where they are incidentally injured is not enough for proximate cause,” Lucas wrote.
“Furthermore, by no stretch of the imagination could it be reasonably foreseeable to ARTCO that a breakaway would somehow result in a chain of events leading to a barge cleaner slipping on ice during the normal course of his work,” he added.
American River Transportation argues that the natural accumulation rule bars liability for alleged injuries resulting from the natural accumulation of ice and snow.
“Here, plaintiff alleges that the ice was a result of natural accumulation from a mixture of rain and snow falling for over 24 hours and a temperature drop to about 16 degrees,” the memorandum states.
Hardimon filed his original complaint on March 16 in the U.S. District Court for the Southern District of Illinois. He filed a second amended complaint on Oct. 28 against SCF Lewis and Clark Fleeting LLC and American River Transportation Co. LLC. The complaint was filed through attorney Roy Dripps of Armbruster Dripps Winterscheidt & Blotevogel LLC in Maryville.
According to his complaint, Hardimon alleges he was employed by SCF Lewis and Clark Fleeting to work as a member of the crew of a flat deck crane barge. The plaintiff claims the barge was not permanently moored and was moved frequently by harbor tugs. While it was moving, a crane and Bobcat, or skid steer loader, remained on the deck. The deck also contained an old freight container used as a break room, galley and shelter during inclement weather.
Hardimon claims most of his work was spent cleaning barges. The crane would open the hatch covers of the barge and would lower the Bobcat into the cargo box. Hardimon would then board the barge from the flat deck crane barge and climb down into the cargo box. The Bobcat’s bucket scoop was used to gather old cargo, refuse or other undesired material from the barges to be offloaded. During this process, the barge being cleaned and the flat deck crane barge were both afloat on the Mississippi River.
Hardimon alleges that on Feb. 13, 2020, he was performing his assigned duties during inclement weather near Sauget, Ill. He was wearing the personal protective equipment required by his employer, including steel-toed work boots, work gloves, a hard hat, and a personal floatation device.
The suit states that a mixture of rain and snow had been falling for over 24 hours with temperatures below freezing. Shortly after 11 a.m., Hardimon claims he stepped from the flat deck crane barge to the barge to be cleaned, which was covered with ice. His foot allegedly slipped on the ice and he fell into the Mississippi River.
When he fell, Hardimon claims the force of the current dragged him underneath the barge.
“Plaintiff struggled to free himself but his required personal floatation device provided enough buoyant force to push him against the bottom of the barge, preventing him from swimming to either side of the barge and thereby trapping him. Eventually, the force of the current was strong enough to push plaintiff out from under the barge,” the suit states.
Hardimon claims he was in the water during the snowstorm for approximately 12 minutes before he was rescued.
“During this time, plaintiff was in fear of his life,” the suit states. “Plaintiff believed he would either drown while he was underneath the barges or he would freeze to death in the frigid waters before he could be rescued.”
Hardimon claims the crane was a watercraft capable of transporting people or equipment, making it a “vessel” in accordance with maritime law.
Hardimon alleges SCF Lewis and Clark Fleeting failed to meet its obligation to provide him with “maintenanceor cure.”
“The defendant employer has paid zero maintenance to plaintiff,” the suit states.
Hardimon also alleges American River Transportation negligently moored the barges, failed to monitor the barges while they were moored and failed to retrieve the barges once they broke loose.
SCF Lewis and Clark Fleeting answered the complaint on Nov. 6 through attorney Neal Settergren of Goldstein and Price LC in St. Louis.
In its affirmative defenses, the defendant argues that its investigation regarding Hardimon’s request for maintenance and cure benefits is ongoing.
The defendant argues that Hardimon had a pre-existing medical condition that allegedly caused him to suffer the fall. SCF Lewis and Clark Fleeting adds that the unspecified medical condition was previously “undisclosed and/or concealed and/or misrepresented” by Hardimon.
“Defendant SCF is not responsible for said medical conditions or their inevitable worsening but rather only for medical conditions, if any, which arose directly from the allegations contained in the second amended complaint,” Settergren wrote.
The defendant also argues that Hardimon caused his own injuries by negligently failing to exercise care for his own safety, failing to perform his job duties in a careful manner, or applying for and continuing to work for the defendant despite his medical conditions.
U.S. District Court for the Southern District of Illinois case number 3:21-cv-298
This article was first published in Madison Record.
