Putnam’s request, explaining that there were not enough dealers working that day to allow her to
only perform mucking duties. Approximately three hours into her shift, Putnam’s arm was heavy,
weak and numb. Putnam had not experienced numbness or tingling in her arm prior to June 6, 1998.

Putnam left work early to see a doctor. The doctor restricted Putnam to light duty. Empress
paid Putnam maintenance, a per diem living allowance under general admiralty and maritime law,
in the amount of $17.00 for June 7, 1998. On June 8, 1998, Empress offered Putnam a light duty
position during the week consistent with her medical restrictions. Putnam rejected the offer.
Thereafter, Empress did not pay Putnam maintenance.

Putnam was referred to an orthopedic specialist, Dr. William Farrell, for treatment. Dr.
Farrell continued Putnam’s work restrictions. Dr. Farrell also ordered an MRI, which revealed a
narrowing of the neuroforamen, or opening where the nerve roots pass down to the arm, at the
cervical 4-5 level on the right side. Dr. Farrell found the narrowing at cervical 4-5, rather than at
cervical 4-6, was inconsistent with the dermatomal level described by Putnam beyond her mid-arm.
The MRI was otherwise normal.

As part of Putnam’s treatment, Dr. Farrell prescribed physical therapy. Between June 22,
1998 and August 3, 1998, Putnam attended eight physical therapy sessions. Dr. Farrell reviewed the
physical therapy report finding that Putnam continued to experience tenderness around the right
shoulder blade and right upper trapezius muscle. Otherwise, Putnam was physically normal.

When Putnam informed Dr. Farrell that she still experienced pain, Dr. Farrell ordered a nerve
conduction test known as an EMG. The EMG returned to Dr. Farrell was normal. On or about
September 10, 1998, Putnam once again informed Dr. Farrell she still experienced pain. Dr. Farrell

referred Putnam to a neurosurgeon for a second opinion.


IV. Maintenance and Cure Under General Admiralty and Maritime Law

Maintenance and cure are “rights given to seamen as incidents of their employment.“ Knight,
2000 WL 1434151, at *5, quoting Mullen v. Fitz Simons & Connell Dredge & Dock Co., 191 F.2d
82, 85 (7th Cir. 1951). “Maintenance” is a per diem living allowance and “cure” is the right to
necessary medical services. Smith v. Apex Towing Co., 949 F. Supp. 667, 670 (N.D.HIL. 1997), citing
Pelotto v. L & N Towing Co., 604 F.2d 396, 399 (Sth Cir. 1979). /d. Maintenance and cure must
be paid until maximum cure is achieved regardless of the cause of the injury. /d.
A. Maintenance

Empress claims it was not obligated to pay maintenance, with the exception of the $17.00
payment on June 7, 1998, because Putnam failed to mitigate her damages by accepting the light duty
position offered by Empress on June 8, 1998. As an initial matter, Empress failed to plead this
affirmative defense in its answer. See Fed. R. Civ. P. 8(c); Venters v. City of Delphi, 123 F.3d 956,
967-68 (affirmative defenses not pled in the answer are waived). Nevertheless, Putnam may recover
for maintenance and cure without any deduction for earnings subsequent to the injury. See Vaughan
v, Atkinson, 369 U.S. 527, 533 (1962)(“It would be a sorry day for seamen if shipowners, knowing
of the claim for maintenance and cure, could disregard it, force the disabled seaman to work, and
then evade part or all of their legal obligation by having it reduced by the amount of the sick man’s
earnings”). Empress’ obligation to pay Putnam maintenance until maximum cure was not affected
by Putnam’s refusal to accept the light duty position.
B. Cure

Empress next claims its obligation to pay cure ceased upon Dr. Farrell’s finding of maximum

cure on September 11, 1998. Maximum cure is achieved “where it appears that the seaman’s


a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7" Cir. 2000).
Il. Negligence Under the Jones Act

Any seaman who suffers a personal injury in the course of employment may bring an action
for damages against the shipowner under the Jones Act. 46 U.S.C. § 688(a). In order to prevail, the
scaman must show her injuries resulted “in whole or in part from the negligence of any of the
officers, agents, or employees of [the shipowner].” 45 U.S.C. § 51. Specifically, Putnam must
show: (1) personal injury in the course of her employment; (2) negligence by her employer; and (3)
causation to the extent that her employer’s negligence was the cause “in whole or in part” of her
injury. Knight v. Grand Victoria Casino, No. 98 C 8439, 2000 WL 1434151, at *3 (N.D.III. Sept.
27, 2000), citing Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999);
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331,335 (Sth Cir. 1997)(en banc). Although Empress
does not dispute that Putnam was injured in the scope of her employment, Empress claims summary
judgment is appropriate because Putnam cannot establish the second and third elements of her claim.
A. Foresceability

Empress first argues it was not negligent in assigning Putnam to the spin side of roulette. A
Jones Act employer owes a duty to assign employees to work for which they are reasonably suited.
Moreno v. Grand Victoria Casino, 94 F Supp.2d 883, 895 (N.D.III. 2000), citing Fletcher v. Union
Pacific Railroad Co., 621 F.2d 902, 909-10 (8th Cir. 1980). The employer breaches that duty if it
negligently assigns an employee to perform work beyond his or her capacity. /d. The employer is
negligent if it knew or should have known that its assignment exposed the employce to an

unreasonable risk of harm. Jd.


About this time, Dr. Farrell determined Putnam had reached “maximum medical
improvement,” also referred to as “maximum cure.” On September 11, 1998, Dr. Farrell released
Putnam to return to work without restrictions. Empress requested Putnam to return to work. Putnam
declined due to the pain in her arm. Prior to her release, Empress paid the costs associated with
Putnam’s medical treatment.

Thereafter, Putnam went to the neurosurgeon Dr. Farrell referred for a second opinion. The
neurosurgeon did not place any restriction on Putnam returning to work.

Putnam returned to Dr. Farrell in July 1999, still complaining of pain. Dr. Farrell referred
Putnam to a pain management center for treatment. Putnam was treated by Dr. Gorski and Dr.
Hashim. Neither Dr. Gorski nor Dr. Hashim placed any restriction on Putnam returning to work.

DISCUSSION
1. Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is no
genuine issue of materia! fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. National Human Resource
Committee, Inc., 218 F.3d 719, 723 (7" Cir. 2000). Once a moving party has met its burden, the non-
moving party must go beyond the pleadings and set forth specific facts showing there is a genuine
issue for trial. Fed. R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7" Cir. 1999). The
court considers the record as a whole and draws all reasonable inferences in the light most favorable
to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7" Cir. 2000).

A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return


Based on this standard, Putnam has advanced sufficient evidence to establish that Crandall’s failure
to reassign her played some part in causing her injury. See also Moreno, 94 F.Supp.2d at 893,
quoting Lies y. Farrell Lines, Inc., 641 F.2d 765, 772 (9th Cir. 1981)(summary judgment in Jones
Act cases is to be “cautiously granted, and if there is to be error at the trial level it should be in
denying summary judgment in favor of a full live trial”).

III. | Unseaworthiness Under General Admiralty and Maritime Law

Empress moves for summary judgment on Putnam’s unseaworthiness claim. Putnam failed
to respond. Nevertheless, the court must examine the undisputed facts of the claim to determine if
summary judgment is appropriate as a matter of law. See Nabozny v. Podlesny, 92 F.3d 446, 457
n. 9 (7th Cir. 1996).

Under general admiralty and maritime law, Empress has an absolute duty to provide a
seaworthy vessel. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960). A vessel is
scaworthy if it, its appurtenances, and its crew are reasonably fit for their intended use or service.
Usner v, Luckenbach Overseas Corp., 400 U.S. 494, 499 (1971).

The parties agree the roulette equipment functioned properly. Moreover, a single act of
incompetence by a crew member cannot render a vessel unseaworthy unless the crew member’s
incompetence is part of a continuous course of conduct. Usner, 400 U.S. at 500 (“To hold that [an]
individual act of negligence rendered the ship unseaworthy would be to subvert the fundamental
distinction between unseaworthiness and negligence that we have so painstakingly and repeatedly
emphasized in our decisions”). Crandall’s failure to reassign Putnam on two occasions falls short

of establishing a continuous course of conduct. Summary judgment is appropriate on Count II.


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

. Conlon
Suzanne B. Conlo than Assigned Judge

CASE NUMBER 01 C 4245 DATE 3/12/2002
CASE ELIZABETH PUTNAM vs. EMPRESS CASINO JOLIET CORP.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) statc briefly the nature
MOTION: of the motion being presented.)

DOCKET ENTRY:

Qa) o Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) a Answer brief to motion due. . Reply to answer brief due.

(4) i) Ruling/Hearing on set for at

(5) Q Status hearing[held/continued to] [set for/re-set for] on set for at

(6) 0 Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) 0 Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QFRCP4(m) €]General Rule21 OOFRCP41(a(1) [J FRCP41(a)(2).

cao) «il [Other docket entry} Empress Casino Joliet Corporation’s motion for summary judgment [13-1]
is granted as to Counts I] and IV, granted in part and denied in part as to Count IIL and denied as to Count
I. Joint modified pretrial order shall be presented on March 28, 2002 at 9:00 a.m. Plaintiff's draft shall
be submitted to defendant by March 20, 2002. Bench trial is set on April 18, 2002 at 9:00 a.m. ENTER
MEMORANDUM OPINION AND ORDER.

(i) i [For further detail see order attached to the original minute order.}

No notices required.

jail AO 450 form.

No notices required, advised in open court,

Notices mailed by judge’s stalt.

Notitied counsel by telephone,

Copy to judge/magistrate judge.

cB

Document
Number

number of notices

MAR 1 9 2002

date docketed

Docketing to mail notices. i ] f
/
M docketing deputy inipels:

Lunes POPES sl

31372002

date mailed notice
courtroom

deputy’s
initials

ce

railing deputy initials



reply brief. See Native American Arts, Inc. v. Earth Dweller, Lid., No. 01 C 2370, 2001 WL 910394,
at *5 (N.D.IIL Aug. 10, 2001).
CONCLUSION
Empress is entitled to judgment as a matter of law on Counts II and IV. Empress also is
entitled to judgment as a matter of law on Putnam’s claim for cure in Count II. Empress’ motion

for summary judgment as to the remaining claims is denied.

March 12, 2002 ENTER:

SuzanneB. Conlon
United States District Judge

11


condition is incurable, or that future treatment will merely relieve pain and suffering but not
otherwise improve the seaman’s physical condition.” Watson v. Hollywood-Casino-Aurora, Inc.,
No. 95 C 0654, 1998 WL 417594, at *3 (N.D.ILl. July 20, 1998), citing Pelotio, 604 F.2d at 400.

Putnam does not provide evidence disputing Dr. Farrell’s determination of maximum cure
on September 11, 1998, For example, Putnam does not provide admissible evidence regarding her
physical condition after September 11, 1998. Indeed, Putnam did not even visit a doctor for
treatment until she returned to Dr. Farrell in July 1999, once again complaining of pain. Dr. Farrell
then referred Putnam to a pain management clinic. Based on the undisputed facts, Putnam achieved
maximum cure on September 1, 1998. Empress paid Putnam’s medical expenses until the date of
maximum cure and is entitled to judgment as a matter of law on Putnam’s cure claim.
Vv. Maintenance and Cure Under The Jones Act

In order to state a claim for maintenance and cure under the Jones Act, a plaintiff must prove
that a personal injury was caused or aggravated by the employer’s failure to provide maintenance and
cure. Watters y. Harrah’s Illinois Corp., 993 F. Supp. 667, 670 (N.D. Ill. 1998), citing Guevara v.
Maritime Overseas Corp., 59 F.3d 1496, 1499 (Sth Cir. 1995)(en banc). Putnam does not allege any
additional injuries resulting from Empress’ failure to provide maintenance. Accordingly, Putnam’s
claim for maintenance and cure under the Jones Act fails as a matter of law.
VI. Statute of Limitations

Not until its reply does Empress argue Putnam’s claim is barred by the three year statute of
limitations. Empress fails to explain why this issue was not raised in its opening brief, especially
when Empress pled the statute of limitations as one of its affirmative defenses at the outset of the

case. Under these circumstances, the court wil] not consider an issue raised for the first time in a

10


Crandall knew Putnam was experiencing pain in her arm from dealing. Crandall, as a
supervisor, had the sole authority to modify Putnam’s assignment. Nevertheless, Crandall denied
Putnam’s requests for reassignment. Under these circumstances, a reasonable factfinder could
conclude the risk of injury was foreseeable to Empress. See Moreno, 94 F.Supp.2d at 894
(foreseeability must be determined by the factfinder where “the proofs justify with reason the
conclusion that employer negligence played any part . . . in producing the injury or death for which
damages are sought”). The cases cited by Empress do not change this conclusion. See Lindemann
v. Empress Casino Hammond Corp., No. 97 C 8938, 1999 WL 59839, at *4 (N.D.IN. Jan. 27,
1999)(summary judgment granted where employee failed to offer any evidence that injuring task was
required); Brantley y. Hollywood Casino-Aurora, Inc., No. 96 C 2082, 1998 WL 513089, at *3-4
(N.D.UL Aug. 14, 1998)(same); Rutherford v. Lake Michigan Contractors, Inc., No. 00-1850, 2002
WL 22352, at *2-3 (6th Cir. Jan. 7 2002)(summary judgment affirmed where employee failed to
offer evidence that employer knew of prior complaints of possible injury). See also Chisholm v.
Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 61-62 (Sth Cir. 1982)(verdict for employee
reversed where employee, who had not previously complained of injury, hurt his back completing
voluntary task).

B. Causation

Without citing any authority, Empress next argues Putnam cannot establish causation
between her injury and her work assignment. Under the Jones Act, the plaintiffs burden to prove
causation is “very light” and has been described as “featherweight.” Cella v United States, 998 F.2d
418, 427-28 (7th Cir. 1993), Therefore, a plaintiff need only establish that the employer’s acts or

omissions played some part, no matter how small, in producing the employer’s injury. /d. at 428.


factual statements are deemed admitted to the extent that Empress failed to comply with Local Rule
56.1.
I. Facts

The following facts are undisputed. Empress operates a casino upon navigable waters in
Joliet, [linois. In December 1992, Empress hired Putnam as a dealer. Putnam’s supervisors were
responsible for assigning her to specific games during a shift. Putnam did not have any input into
the decision. Putnam worked full-time until September 1996, when she began working only part-
time on the weekends due to family reasons.

In June 1998, Putnam experienced soreness in her upper right forearm while dealing
blackjack. Dealing blackjack requires repeated movements of the arms and wrists. Putnam asked
her supervisor, John Crandall, if she could be assigned to a different game because her arm was sore.
Crandall declined Putnam’s request.

The next weekend, Putnam was dealing roulette. Putnam was required to spin the ball and
pay the winning bets (“spin side’) as well as collect the losing bets (“mucking”). Empress often
assigned one dealer to work the spin side of roulette with another dealer handling the mucking
duties.

In order to spin the ball, Putnam first had to start the wheel spinning by pulling a slot on the
wheel. Once the wheel was spinning, Putnam would snap her wrist down and under to send the ball
spinning along the edge of the wheel. Both parties agree the roulette equipment functioned properly.

During her shift, Putnam felt pain in her right arm from the back of her shoulder into her
index finger and thumb. Putnam felt the most pain while she was spinning the ball. Putnam

immediately asked Crandall if she could be assigned to a mucking position. Crandall declined


988 (7th Cir. 2000). All facts not properly supported by the record evidence must be disregarded.
Brasie v. Heinemann’s Ine., 121 F.3d 281, 284 (7th Cir. 1997).

Paragraphs 72, 79, 80, 84 and 195 of Putnam’s statement of facts are premised on
inadmissible hearsay. Inadmissible hearsay cannot be considered on summary judgment. Lisenstadt
v. Centel Corp., 113 F.3d 738, 741 (7th Cir. 1997).

In response to a motion for summary judgment, Local Rule 56.1 requires the non-moving
party to submit a response “to each numbered paragraph in the moving party’s statement [of material
facts], including, in the case of any disagreement, specific references to the affidavits, parts of the
record, and other supporting materials relied upon.” Local Rule 56.1(b)(3)(A). All relevant facts
denied without supporting documentation must be accepted as true. Local Rule 56.1(b)(3)(B);
Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871 (7th Cir. 2000).

Putnam’s responses to several paragraphs, including paragraphs 7, 15, 18 and 20, fail to cite
to record evidence supporting her denials. Accordingly, Empress’ factual statements are deemed
admitted to the extent that Putnam’s denials fail to comply with Local Rule 56.1.

Local Rule 56.1 also requires the moving party to submit a reply to the non-moving party’s
statement of material facts in the form prescribed by Local Rule 56.1(b)(3)(A). Local Rule 56.1(a).
AU relevant facts denied without supporting documentation must be accepted as true. Local Rule
56.1 (a); Jupiter Aluminum, 225 F.3d at 871.

Empress’ responses to paragraphs 26, 31, 35,41, 48, 187, 209, 214-217, 222 and 226 fail to
cite to record evidence supporting its denials. Indeed, Empress does not respond at all to numerous
paragraphs, including paragraphs 25, 27-30, 32-34, 36-40, 42-46, 50, 57-58, 62-63, 65-71, 75-76,

88, 152-154, 157, 160, 162-165, 179, 205-206, 208, 219-220 and 223-225. Accordingly, Putnam’s


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ELIZABETH PUTNAM )
)
Plaintiff, ) No. 01 C 4245
)
v. ) Suzanne B. Conlon, Judge
)
EMPRESS CASINO JOLIET CORP. ) erent
) PACKETES
Defendant. )

HAR 1.9 2002
MEMORANDUM OPINION AND ORDER

Elizabeth Putnam (“Putnam”) sues Empress Casino Joliet Corporation (“Empress”) for
personal injuries sustained during her employment aboard an Empress casino river boat.
Specifically, Putnam alleges negligence under the Jones Act (“Jones Act”), 46 U.S.C. § 688 e7 seg.
(Count I), unseaworthiness of the casino under general admiralty and maritime law (Count IJ) and
maintenance and cure under general admiralty and maritime law (Count III) and the Jones Act
(Count IV). Empress moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.

BACKGROUND
I. Local Rule 56.1

Local Rule 56.1 requires litigants to follow a detailed procedure in filing and responding to
summary judgment motions. Both parties have failed to adhere to those procedures. Local Rule 56.1
requires both the moving and non-moving parties to submit a statement of material facts, including
“specific references to the affidavits, parts of the record, and other supporting materials relied upon.”
Local Rule 56.1(a)(3); Local Rule 56.1(b)(3)(B). Evidence submitted at summary judgment must
be admissible at trial under the Federal Rules of Evidence. Woods v. City of Chicago, 234 F.3d 979,

,

i