UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TAMEA GRANT,

Plaintiff, v. Civil Action Nos. 17-1159 (JEB) 17-1410 (JEB) ENTERTAINMENT CRUISES, INC.; SPIRIT CRUISES, LLC,

Defendants.

MEMORANDUM OPINION

Pro se Plaintiff Tamea Grant, a deckhand on a local cruise ship, brought this suit against

Entertainment Cruises, Inc., and its subsidiary Spirit Cruises, LLC, alleging that her former

captain intentionally struck her with a rope during a docking incident and then denied her

medical assistance. After two rounds of briefing, what remains of her case is a single count

under the Jones Act,

, which allows a seaman injured on a vessel in navigation

to recover from his employer. Defendants, contending that they cannot be held liable for this

intentional tort, now move for summary judgment. Because the Court finds that there are several

material facts in dispute, it will deny the Motion.

I. Background

At the summary-judgment stage, courts must consider the facts in the evidentiary record.

See Fed. R. Civ. P. 56(c). Here, however, the only evidence proffered by either party consists of

snippets from Plaintiff’s deposition related to the incident. To provide the reader with some

context, accordingly, the Court draws general background from the Complaint and uses the

deposition where available.

1 A. Factual History

In contrast to her 20-year career with the U.S. Navy, Grant’s time working on

Defendants’ vessels was rather abbreviated. See Second Amend. Compl., ¶¶ 4, 15. In March

2015, Spirit Cruises hired her as a deckhand, during which time her job duties included greeting

guests, docking and undocking the ship, “stand[ing] lookout,” and assisting with some

maintenance and cleaning.

.

On April 25, 2015, Plaintiff’s assigned vessel hit a few snags when trying to embark its

passengers. First, while standing on the gangway, Grant “heard yelling and witnessed the

Captain” removing several intoxicated guests, which put him “in a bad mood.”

. The

first mate then instructed Grant to help the Captain handle the ship’s ropes — “an alarming

request,” as that was typically the first mate’s job.

They removed the boat lines and the

Captain began to back the vessel away from the dock, but he was then told that an employee had

been “fired and needed to leave the boat” “immediately.”

. This necessitated a trip back

to the dock, where the boat would need to be re-tied and the gangway re-set. Again, it was

usually the first mate’s responsibility to assist the Captain in these endeavors, but on this night,

Grant was told to help. Initially, Plaintiff resisted because “she could see the anger mounting in

the Captain[’]s face,” but, not wanting to be the next one told to walk the plank, she ultimately

relented and went to help.

In the middle of preparing to lift the gangway, the Captain

suddenly “yanked the gangway . . . [and] began slamming it back and forth in the walkway.”

Another officer was concerned that she had been injured, but Plaintiff informed him that she had

“moved [her] hand.”

Later, she was not so lucky. When Grant subsequently prepared to dock the boat again,

the line became jammed. She asked the Captain for help, at which point he attempted to

2 dislodge a stuck rope or line, but ended up swinging the rope and hitting her on the head. See

Opp., Attach. 1 (Deposition of Tamea Grant) at 82:16-22. To Grant, this assault was

“intentional[].”

. This incident caused “severe headaches, ringing in her ears,

memory loss, visual disturbances, searing pain in [her] elbow joint, and . . . golfer’s elbow.”

SAC, ¶ 32. When she told the Captain that he had hit her, “his reaction was to smile,” and he

refused to engage in any discussion with her.

. Her effort to relay the severity of her

injuries was similarly unsuccessful, and the Captain both refused to provide her medical

assistance and forbade anyone else from doing so. See Grant Depo. at 104:12-22. Grant then

disembarked and went to her car. As she began to dial 911, another deckhand appeared in her

passenger window; fearing that the employee might have been sent to “inflict more harm,”

Plaintiff “feared for her life and fled the parking lot.” SAC, ¶ 24.

B. Procedural History

Two years later, Grant filed two separate suits against Entertainment Cruises and Spirit

Cruises in the Superior Court of the District of Columbia. Both actions alleged three violations

of the D.C. Human Rights Act and intentional and negligent infliction of emotional distress. See

ECF No. 1 (Notice of Removal), Exh. A. Defendants successfully removed the cases to federal

court, and this Court consolidated them. Id.; Minute Order of August 29, 2017. The cruise lines

then moved to dismiss all of her claims as time-barred. See ECF No. 10. In response, Plaintiff

requested leave to amend her Complaint, throwing the DCHRA and emotional-distress counts

overboard in favor of four counts under D.C. labor-law statutes and a Jones Act claim. See ECF

No. 21; Case No. 17-1410, ECF No. 16. The Court granted her Motion to Amend the Complaint

and, accordingly, denied Defendants’ first Motion to Dismiss as moot. The cruise lines again

moved to dismiss, which the Court largely granted. It allowed her to proceed on one count for

3 unsafe working conditions and invited her to re-plead the Jones Act claim. See ECF Nos. 24, 29.

Grant took the Court up on this offer and successfully moved to file a Second Amended

Complaint. See ECF Nos. 33, 36. Again, Defendants moved to dismiss, this time arguing that

the Jones Act preempts her D.C. claim. See ECF No. 40. The Court agreed and dismissed her

state-law cause of action. See ECF No. 46. Discovery now complete, the cruise lines have filed

a Motion for Summary Judgment on the sole remaining count for liability — namely, under the

Jones Act.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby,

(1986); Holcomb v. Powell,

(D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby,

; Holcomb,

. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the non-moving party. See Scott v. Harris,

(2007); Holcomb,

. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”

by “citing to particular parts of materials in the record” or “showing that the materials cited do

not establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

When a motion for summary judgment is under consideration, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty

Lobby,

; see also Mastro v. PEPCO,

(D.C. Cir. 2006); Aka v.

Wash. Hosp. Ctr.,

(D.C. Cir. 1998) (en banc). On a motion for summary

4 judgment, the Court must “eschew making credibility determinations or weighing the evidence.”

Czekalski v. Peters,

(D.C. Cir. 2007).

The non-moving party’s opposition, however, must consist of more than mere

unsupported allegations or denials, and must be supported by affidavits, declarations, or other

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett,

(1986). The non-movant,

in other words, is required to provide evidence that would permit a reasonable jury to find in her

favor. See Laningham v. U.S. Navy,

(D.C. Cir. 1987).

III. Analysis

Defendants argue that the Jones Act does not encompass liability for the sort of assault

Grant claims that she experienced. To decide whether it can, the Court first briefly describes the

statute.

A. Jones Act

Prior to the Jones Act, general maritime law permitted only two theories of recovery for

an injured seaman: unseaworthiness — “the vessel owner’s duty to ensure that the vessel is

reasonably fit to be at sea” — or “maintenance and cure” — “the vessel owner’s obligation to

provide food, lodging, and medical services.” Lewis v. Lewis & Clark Marine, Inc.,

(2001) (citations omitted). In 1920, Congress broadened the available bases for

recovery through the Jones Act, which provides a cause of action for “[a] seaman injured in the

course of employment.”

. Because the statute states that the “[l]aws of the

United States regulating recovery for . . . a railway employee,”

are also applicable to a Jones

Act plaintiff, the Act incorporates the Federal Employers’ Liability Act, under which an

employer can be held liable for negligence. See

; Withhart v. Otto Candies, LLC,

5

(5th Cir. 2005) (Jones Act provides “a negligence cause of action for ship

personnel against their employers”). Plaintiff’s pro se Complaint and Opposition do not clearly

set out her legal theories, but, construing them liberally, the Court treats Grant as asserting a

Jones Act claim against Defendants for both direct negligence and vicarious liability, and it thus

addresses each separately.

B. Direct Negligence

Vessel owners have a duty to provide safe working conditions for their employees and

may be liable for a failure to inform them about or protect them from foreseeable potential

hazards. See Thibodeaux v. Ensco Offshore Co.,

, at *4 (W.D. La. 2017);

Borges v. Seabulk Int’l, Inc.,

(D. Conn. 2006). Because of the perils of

life at sea, see Herman Melville, Moby Dick (1851), a plaintiff asserting negligence under the

Jones Act “shoulders a lighter burden [for establishing negligence] than [her] counterpart on land

would carry.” Wills v. Amerada Hess Corp.,

(2d Cir. 2004) (alteration in

original) (citation omitted).

The cause of action for negligence under the Act is distinct from the common-law

maritime claim for unseaworthiness, which imposes strict liability when a ship owner “fail[s] to

provide a vessel, including her equipment and crew, which is reasonably fit and safe for the

purposes for which it was intended to be used.” Boudreaux v. United States,

(5th Cir. 2002); see Barlas v. United States,

(S.D.N.Y. 2003);

McBride v. Estis Well Serv., L.L.C.,

(5th Cir. 2014). Although

Plaintiff’s Opposition makes several mentions of the “unseaworthiness” of the ship, see Opp. at

11-12, Defendants correctly note that such a claim was not pled in her Second Amended

6 Complaint. Giving her the benefit of the doubt, however, the Court presumes these allegations

relate to her Jones Act claim.

According to Grant, Defendants were negligent by failing to (1) properly train the crew;

and (2) provide her with proper safety or protective gear. Id. at 11-12. Although Plaintiff lists

several instances that she believed constituted such unsafe working conditions, the only one

tethered to her alleged injury here is a need for protective gear, specifically a helmet, when tying

down the ropes. See Grant Dep. at 81:1. Although a ship owner must provide adequate

equipment to seamen, see Smith v. Basic Marine Servs., Inc.,

(E.D. La.

2013), in order to show that Defendants were negligent in not furnishing her a helmet, Plaintiff

must proffer some evidence from which a jury could infer that it was the industry standard or

reasonable practice to do so. See Reveron v. Tycom, Inc.,

, at *7 (D.N.J.

2004) (granting employer summary judgment when plaintiff did not produce evidence that issued

safety equipment was inadequate). She has not done so here and thus cannot, as a matter of law,

proceed on a direct-negligence claim.

C. Vicarious Liability

Plaintiff’s claim can also be interpreted as alleging that Defendants were vicariously

liable for the tortious acts of the Captain, including both the assault and subsequent refusal of

medical care. Just as under common law, an employer’s Jones Act “negligence” can extend to

intentional torts under the doctrine of respondeat superior if (1) they were committed by an

employee in furtherance of the employer’s business, see Beech v. Hercules Drilling Co., L.L.C.,

(5th Cir. 2012), or (2) “the shipowner knew or should have known of the

crew member’s violent propensities.” Sloan v. United States,

(E.D.

Pa. 2009). Nothing in the record suggests that Defendants knew or had reason to know of the

7 Captain’s supposed violent nature. The latter ground of foreseeability is thus inapplicable, and

the Court only addresses the former.

Defendants assert that the Captain’s “duties consisted of ensuring proper navigation of

the vessel and the safety of the passengers and crew.” Mot. at 7. An assault of a crew member,

they argue, is “so clearly contrary to [Defendants’] business interests” that no jury could find it

was “done in furtherance of his duties.” Id. at 7-8. This, the Court believes, construes the scope

of his employment too narrowly. The D.C. Circuit has not addressed respondeat superior in the

specific context of the Jones Act, but under common-law principles an employer is liable for the

intentional torts of its employee committed within the scope of employment when the conduct

“is actuated, at least in part, by a purpose to serve” the employer and, given the job duties, was

“not unexpectable” by it. Lamb v. Millennium Challenge Corp.,

(D.D.C.

2017) (quoting Restatement (Second) of Agency § 228 (1958)); see also Johnson v. Weinberg,

(D.C. 1981) (employer liable “where a tort is the outgrowth of a job-related

controversy” and “conduct in question was foreseeable as being within the range of duties

entrusted to the employee”). Whether the alleged assault satisfies this definition is a question of

fact for the jury. Brown v. Argenbright Sec., Inc.,

(D.C. 2001).

Indeed, nearly a century ago, the Supreme Court held that an employer was liable in a

similar situation. See Jamison v. Encanacion,

(1930), superseded by statute on

other grounds as recognized in McDermott Int’l, Inc. v. Wilander,

(1991).

In Jamison, a longshoreman was loading a barge when the foreman assaulted him. Id. at 637-38.

At trial, the plaintiff introduced evidence that the foreman struck him, not due to any personal

disagreement, but to “hurry him about the work.” Id. at 638. The Supreme Court affirmed the

jury verdict in favor of the plaintiff, reasoning that even though the assault “was in excess of the

8 authority conferred by the employer upon the foreman, it was committed in the course of the

discharge of his duties and in furtherance of the work of the employer’s business.” Id. at 641;

see also Alpha S.S. Corp. v. Cain,

(1930) (employer liable for supervisor who

struck seaman “for the purpose of reprimanding him for tardiness and compelling him to work”);

Civil v. Waterman Steamship Corp.,

(2d Cir. 1954) (ship owner liable when

employee fatally stabbed another employee with a “disciplinary motive”).

Grant contends that the assault here occurred while trying to dock the boat, an act that

clearly furthers Defendants’ business interests. See Grant Depo. at 81:15-22. Given the many

frustrations that attend docking (particularly on a cruise ship that frequently serves intoxicated

guests), a jury could find that it was “not unexpect[ed]” that he would get angry and lash out.

There is no evidence that the Captain and Grant had any prior relationship, such that he would

have a personal motive to hit her over the head with a rope. See Lancaster v. Norfolk & W. Ry.

Co.,

(7th Cir. 1985) (employer not liable “when the motive for the employee’s

intentional tort is personal”). It is thus plausible that the Captain acted “out of exasperation” or

“with an excess of zeal” in an effort to hurry up and tie down the ropes.

.

Grant also claims that she was “denied immediate medical assistance causing her injuries

to worsen.” SAC, ¶ 32; Grant Depo. at 104:12-19; 167:4-9. Vessel owners have a non-delegable

duty under the Jones Act to provide prompt and adequate medical care to injured seamen. See

Olsen v. Am. S.S. Co.,

(6th Cir. 1999); see also Restatement (Second) of

Torts § 314B (1965) (employer subject to liability when supervisor knows employee is hurt

while performing job duties and fails to care for him); cf. De Centeno v. Gulf Fleet Crews, Inc.,

(5th Cir. 1986) (affirming jury verdict for plaintiff and holding ship owner

vicariously responsible for negligence of physician it chose to treat ill seaman). If the Captain

9 did indeed refuse her medical aid and prevent others from assisting, Defendants could be held

vicariously liable, particularly since their employee was the cause of her injury. This, again, will

be for a jury to decide.

IV. Conclusion

Whether the Captain hit Grant with the rope, his motivations for doing so, and her access

to medical care after the alleged injury are all disputed issues of material fact. The Court

therefore cannot grant Defendants summary judgment. A contemporaneous Order will so state.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: April 19, 2018

10