Background:
Plaintiff, Brett Kurpiel, filed this action under the Jones Act alleging he sustained injuries while working for defendant, Calumet River Fleeting, Inc. Kurpiel alleged his injuries were a result of Calumet's negligence and unseaworthiness of their vessel.

Kurpiel was hired as a deckhand to work aboard Calumet's vessel. His duties included keeping decks clear, tying off barges, facing up to barges, properly stowing equipment, and basic vessel maintenance.

Kurpiel participated in a three-week training period with a more experienced deckhand before being allowed to work on his own. One the day of the alleged incident, weather conditions forced the vessel to find safe harbor and dock for the night instead of returning to Chicago.

Kurpiel described the weather conditions as changing from rain, to snow, then to ice, and finally to a near blizzard. While working the midnight to 6am shift, Kurpiel went to the wheelhouse to use his cellphone. Kurpiel fell asleep in the wheelhouse while waiting for the cell phone call and while watching the barges.

When he woke up he walked down back the steps leading to the wheelhouse, slipped on the last stair, fracturing his ankle. Kurpiel signed a statement in which he stated he did not know if he slipped or just turned his ankle. Kurpiel also stated there were rails on both sides of the steps and all six steps had non-skid paint on them. The area was well lit and that the wheelhouse stairs had been salted and taken care of by the other deckhand running the earlier shift.

Kurpiel also stated it was a "freak accident" and did not think it could be avoided. However, during his deposition, Kurpiel turned around and stated the stairs had not been shoveled or salted. He did confirm, however, that it was the responsibility of the deckhand to do so and that he was four hours into his shift when he fell on the stairs.

Kurpiel also testified, during his deposition, that the captain mentioned to him ice creepers (non-skid shoe-wear) were available for his use.

Calumet filed this Motion for Summary judgment in response to Kurpiel's action.

Issue:
Did this Court grant defendant employer's motion for summary judgment?

Held:
In his signed post-accident statement, Kurpiel admitted that all six steps had non-skid on them, the area was well lit, wheelhouse stairs had been salted, the crew checked the stairs and surrounding areas, post-accident, and found that they were still "ok" from the salting and his fall was a "freak occurrence".

Kurpiel then changed course in his deposition, but did mention the captain told him ice creepers were available. The Court found that Kurpiel's statement "freak accident" severely damaged his case.

Also, this Court recognized Kurpiel failed to provide any evidence that established that ice creepers were required or that their use would have prevented the accident.

During his deposition, Kurpiel stated he never complained about conditions aboard the vessel prior to his injuries and that his actions, with respect to the condition of the boat, were not reasonable.

Ultimately, this Court did not find any source of factual evidence to support Kurpiel's negligence or unseaworthiness claim.

Accordingly, this Court granted Calumet's motion for summary judgment.

Comment:
To the extent that a party's statement in an affidavit contradict his deposition testimony, Courts do not consider the affidavit in ruling on summary judgment motions.

However, Kurpiel's post deposition affidavit claim that he was unaware of any ice creepers although during prior deposition, he admitted that the Captain offered him a pair of creepers.

Accordingly, based on the deposition, Kurpiel failed to present any evidence suggesting Calumet's negligence or any unseaworthy condition aboard the vessel.

Steve Gordon