Seventh Circuit: Barge company not liable after crewmember went overboard, became trapped under barge in freezing temps

The Seventh Circuit Court of Appeals affirmed Magistrate Judge Reona Daly’s ruling that American River Transportation Company LLC (ARTCO) did not owe a duty to a crew member who plunged into freezing water and briefly became trapped under the barge.

Appellate Judge Joel M. Flaum penned the March 19 opinion with Judges Frank Easterbrook and Doris Pryor concurring.

Plaintiff Herbert Hardimon appealed Daly’s order granting dismissal with prejudice for defendant ARTCO. The appellate court affirmed dismissal, finding Hardimon “fails to connect his plunge with the breach of any duty owed to him by American River Transportation Company, LLC.”

Hardimon filed his complaint through attorney Roy Dripps of Maryville, alleging he was employed by SCF Lewis and Clark Fleeting LLC as a crew member on a flat deck crane barge. His work typically involved cleaning barges on the Mississippi River. In order to complete his work, the crane barge would moor next to a barge needing cleaning. Hardimon would load a Bobcat skid steer loader into the barge’s cargo box, allowing him to clean the bottom of the barge.

On Feb. 12 2020, barges controlled and operated by ARTCO broke away from their moorings and struck an SCF barge, damaging a hatch cover. Th next day, Hardimon was assigned to work aboard the damaged barge near Sauget, Ill. Hardimon was performing his duties during inclement weather. The suit states that a mixture of rain and snow had been falling for over 24 hours with temperatures plummeting into the teens.

Shortly after 11 a.m., Hardimon’s co-worker attached the crane’s rigging to the barge’s hatch cover. At the same time, Hardimon climbed a ladder to the top of another hatch cover to signal the crane operator. When he climbed back down the ladder and stepped on to the deck of the barge, his foot allegedly slipped on ice and he fell into the Mississippi River. When he fell, Hardimon was wearing the personal protective equipment required by his employer, including steel-toed 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.”

ARTCO filed a motion to dismiss on Dec. 23, 2022, through attorney Theodore Lucas of Fox Smith LLC in St. Louis.

The defendant argued that the complaint failed to show a cause between the breakaway and the incident or a duty of care. ARTCO argued 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.

Magistrate Judge Reona Daly granted dismissal with prejudice, concluding that Hardimon failed to allege that his injuries were proximately caused by the defendant.

Hardimon appealed.

The appellate court held that in order to succeed on his claims, Hardimon had to demonstrate that ARTCO owed a duty and breached its duty. He also had to prove he was injured and a causal connection between the defendant’s conduct and his injury existed.

“For Hardimon’s injury to have been foreseeable,” Flaum wrote, “crewmembers working on a damaged barge must be a general class of victims ARTCO should reasonably anticipate injuring as a result of negligently mooring its barges; and slipping on ice (or another substance) on the deck of the barge must be a general sort of harm ARTCO should reasonably anticipate resulting from its negligence.”

The appellate court concluded that while Hardimon may have been within the class of victims foreseeable to suffer injuries, the harm was not foreseeable by ARTCO.

“Hardimon’s injury was not a foreseeable result of the barge collision,” Flaum wrote. “Hardimon did not board the barge until the morning after the accident. He was not injured during the barge collision or even on the damaged section of the barge; he was injured slipping on ice.”

“Had Hardimon fallen into the Mississippi River due to the force of the barge collision, that type of harm could be reasonably foreseeable to ARTCO,” he added. “Moreover, Hardimon does not allege that he was working on the icy barge because it had been damaged in the collision or that, absent the collision, he would have either been on a barge without ice or had the day off due to the weather.”

The appellate court concluded ARTCO did not owe Hardimon a duty of care because the defendant is not reasonably expected to foresee slipping on ice on the barge deck as a result of its negligent barge mooring.

In his amended complaint, Hardimon had also argued that ARTCO owed him a duty under the maritime rescue doctrine because he was a rescuer coming to the aid of the damaged barge.

The appellate court held that if the doctrine extended to the rescue of property, Hardimon does not allege that he was injured while attempting to rescue the barge.

“While, in his complaint, Hardimon alleges that it is foreseeable to ARTCO that people could be injured while making emergency repairs, he fails to allege facts supporting an inference that he was making emergency repairs, or doing any urgent work, at the time of his injury,” Flaum wrote. “Rather, many hours after the collision, he ‘was performing his assigned duties,’ which involved using the crane to open barge hatch covers. There is no indication from his complaint that persons or property were at imminent risk if he failed to perform his work.”

“In sum,” he continued, “there is no support in Hardimon’s complaint for his rescuer theory, and the facts he alleged bear no resemblance to scenarios in which courts have applied the doctrine. As a result, his claim fails as a matter of law.”

This article was first published in Madison Record.

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