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Thompson v. Casino Magic Corp.

March 27, 1998

SHIRLEY ANN THOMPSON
v.
CASINO MAGIC CORPORATION, MARDI GRAS CASINO CORPORATION



DATE OF JUDGMENT: 03/22/96 TRIAL JUDGE: HON. JOHN H. WHITFIELD COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT

EN Banc.

The opinion of the court was delivered by: Sullivan, Presiding Justice

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION AFFIRMED - 3/12/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

¶1. Shirley Thompson, an employee of defendant Casino Magic, suffered injuries on two separate occasions while at work as a "change person." Shirley brought suit against Casino Magic Corporation alleging that the Dubuque Belle and the Casino Magic barge were unseaworthy under the Jones Act, 46 U.S.C. app. § 688 (1994), and general maritime law of the United States of America. On October 23, 1995, Casino Magic filed a motion for summary judgment which was granted on March 28, 1996. The trial court determined that Thompson was not a "seaman" and the Magic Casino barge was not a "vessel". Therefore the lower court found that Thompson was not entitled to Jones Act remedies. Thompson filed a notice of appeal to this Court on April 18, 1996. This Court finds that the lower court reached the right result because Thompson fails to attain seaman status.

¶2. Thompson began working for Casino Magic in Bay St. Louis as a "change person" on April 23, 1993. A change person makes change for casino patrons in the slot machine area. While counting the money that she was assigned while aboard the Dubuque Belle on May 17, 1993, Thompson suffered an injury when her vault or bank fell upon her. The day of the injury, Thompson, for the first time, had been assigned to the Dubuque Belle. Casino Magic admits that the Dubuque Belle is a "vessel" for purposes of the Jones Act, but denies that the Casino Magic barge is a "vessel".

¶3. Several weeks after Thompson began working at Casino Magic, the Dubuque Belle arrived and moored adjacent to the Casino Magic barge to provide additional gaming and dining. The uncontradicted affidavits of Tina Frederiksen and Matthew Semski stated that the Dubuque Belle was not operated on a permanent basis but only used during the Summer of 1993 to handle overflow crowds. The affidavits noted that no change persons were permanently assigned to the Dubuque Belle, but rather, were assigned varying work locations prior to the beginning of every shift based on personnel availability, the number of patrons, and several other factors. Workers' activities and responsibilities remained the same regardless of the location assigned. Furthermore, workers were deliberately rotated off the Dubuque Belle since it attracted fewer patrons and was thereby less desirable to work.

¶4. After returning to work for two days, Thompson remained home for several months. Thompson returned to work on November 11, 1993, and resumed her regular duties as change person. The Dubuque Bell had sailed away by November 11th when she returned. On her first day back at work, Thompson fainted and fell to the floor of the Casino Magic barge, injuring her neck and back. Factual dispute exists as to whether this injury was caused by and related to the first injury. However, for summary judgment purposes, this Court will assume that the second injury was caused by and related to the first injury.

LEGAL ANALYSIS

I.

WHETHER THE COURT HAD AUTHORITY TO GRANT SUMMARY JUDGMENT ON WHETHER THOMPSON WAS "SEAMAN"?

¶5. Thompson contends that the circuit court improperly granted summary judgment because whether an employee is a "seaman" is an issue of fact for a jury to determine. Thompson is partially correct in her assertion. "However, seaman status may be decided on summary judgment where the evidence does not support a finding, as a matter of law, that the claimant is permanently assigned to a Jones Act vessel." Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 565 (5th Cir. 1995) (quoting Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5th Cir. 1990)). "And where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, the court may take the question from the jury by granting summary judgment or a directed ...


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