Barge company says employee fell into freezing river, became trapped under barge due to pre-existing condition

A barge company argues that an employee’s concealed pre-existing condition is to blame when he allegedly slipped on ice, fell into the Mississippi River during a snowstorm and became trapped under the barge by the current.

Defendant SCF Lewis and Clark Fleeting LLC answered the complaint on April 29 through attorney Neal Settergren of Goldstein and Price LLC in St. Louis.

The defendant admits that it employed plaintiff Herbert Hardimon as a barge cleaner but denies that it assigned him to work as a member of the crew of a flat deck crane barge.

In its affirmative defenses, SCF Lewis and Clark argues that Hardimon does not meet the qualifications for a seaman under the Jones Act and general maritime law.

“Therefore, if plaintiff sustained any injuries as alleged, which defendant denies, plaintiff’s exclusive remedy against defendant is to pursue a claim for compensation under the Longshoreman’s and Harbor Workers’ Compensation Act,” the answer states.

SCF Lewis and Clark alleges Hardimon had a pre-existing medical condition or disability at the time of his alleged injury. The defendant argues that it is not responsible for the pre-existing condition, which allegedly caused his alleged injuries.

SCF Lewis and Clark argues “that if plaintiff was injured as alleged, which defendant denies, said injuries were caused in whole or part by plaintiff’s own negligence, in among other respects, failing to exercise care for his own safety and/or failing to perform his job duties in a careful manner and/or applying for and continuing to work for defendant despite his knowledge about his known medical conditions, which were undisclosed and/or concealed and/or misrepresented to defendant.”

The defendant further argues that Hardimon applied for his position after allegedly concealing or misrepresenting his pre-existing condition, which forfeits his right to maintenance and cure benefits. Additionally, SCF Lewis and Clark has an ongoing investigation regarding Hardimon’s demand for maintenance and cure, “and to the extent plaintiff failed to cooperate or provide information necessary for defendant’s investigation to determine whether maintenance and cure is owed, plaintiff may not recover such benefits from defendant.”

SCF Lewis and Clark also argues that Hardimon’s claim for punitive damages violates its rights, “as the claim for punitive damages is intended to punish defendant and is tantamount to a request for the imposition of a criminal fine …”

The answer states that punitive damages “discriminate against defendant on the basis of wealth, and different amounts can be awarded against different defendants for the same alleged acts or omissions based solely upon the difference immaterial wealth, and further a lack of standards for imposing punitive damages allows the fact-finder to impose punishment on one while refusing to impose punishment on another for engaging in the same or similar conduct, and therefore is irrational, arbitrary and capricious and constitutes a deprivation of defendant’s right to equal protection of the law as secured by the federal and state constitutions.”

Hardimon filed his complaint against SCF Lewis and Clark, SCF Services LLC, SCF Riverport LLC, SCF Shipyards LLC and Seacor on March 16 in the U.S. District Court for the Southern District of Illinois.

According to his complaint, Hardimon alleges he was employed by the defendants 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. 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. At the time, he was wearing the required personal protective equipment, including steel-toed work boots, work gloves, a hard hat and a personal floatation device.

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.

He claims the defendants had a duty to provide a reasonably safe place to work, provide reasonably safe means of ingress and egress, provide adequate training and assistance to perform assigned duties, enforce safety and housekeeping rules, inspect for hazards, provide reasonably safe tools and equipment and to provide a prompt rescue once the plaintiff fell into the water.

Hardimon seeks unspecified damages and punitive damages for the defendant’s alleged failure to provide maintenance and cure.

This article was first published in Madison Record.

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