Steven Smith v. Crounse Corporation ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1303
STEVEN R. SMITH,
Plaintiff-Appellant,
v.
CROUNSE CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:20-cv-00090-TWP-DML — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED SEPTEMBER 23, 2022 — DECIDED JULY 6, 2023
____________________
Before RIPPLE, ROVNER, and BRENNAN, Circuit Judges.
ROVNER, Circuit Judge. Steven R. Smith sued Crounse Cor-
poration for injuries he sustained while unloading coal from
a barge owned by Crounse. The district court granted sum-
mary judgment in favor of Crounse, and we affirm.
I.
Smith worked for Mulzer Crushed Stone (“Mulzer”) as a
Bobcat skid steer operator. Crounse had a contract with
2 No. 22-1303
Mulzer to provide barges for Mulzer to transport its crushed
stone product. Crounse would deliver the barges to Mulzer,
which would then clean the barges to its satisfaction, load the
barges with Mulzer’s crushed stone, deliver the stone prod-
uct, clean the barges again to a “broom swept” state, and then
release the barges back to Crounse. Crounse’s barges were
used by other companies to haul other materials, including
coal. Barges carrying coal were sometimes released back to
Crounse with as much as a foot of coal remaining in the bot-
tom of the hopper. Mulzer and Crounse agreed that Mulzer
would clear any remaining coal from the barges and sell it for
Mulzer’s own profit. This relieved Crounse of the duty of
cleaning the barges before delivering them to Mulzer and
benefited Mulzer with the sale of the reclaimed coal.
On April 24, 2017, Smith was tasked with clearing out the
last foot of coal from Crounse barge #128 so that it could be
loaded with Mulzer’s crushed stone. To accomplish this task,
Smith was operating a skid steer with a “blade” attached and
positioned at its lowest height. Smith planned to use the blade
to push coal from the back of the hopper to the front for re-
moval, and then complete the job by removing any remaining
coal with a push broom. While operating his skid steer at ap-
proximately five to eight miles per hour, the blade ran into an
obstruction on the steel floor of the hopper. The skid steer
came to an abrupt stop, propelling Smith forward. Smith’s
seatbelt failed and he was injured when he hit a safety bar on
the skid steer.
The obstruction on the hopper floor turned out to be a
“scab.” The floor of the hopper is composed of strips of steel
that are welded together at the seams. As a barge ages, the
seams are subjected to various forces during loading and
No. 22-1303 3
unloading and sometimes split. At times, a piece of equip-
ment catches the edge of a split seam and bends part of the
steel strip upward, forming a scab. In this instance, Smith’s
skid steer ran into a scab approximately twelve to fourteen
inches long, and a few inches tall. R. 34-9. The barge at issue
was twenty-four years old.
Smith had been operating the skid steer for Mulzer for ap-
proximately ten months when the accident occurred. Al-
though he had driven Bobcat skid steers in the past at other
jobs, Mulzer employees Jonathon Mulzer and Jason Otterbach
provided additional training to Smith in the use of the skid
steer. Smith had never encountered a scab when cleaning a
barge with a skid steer, but he learned after the accident that
Jonathon Mulzer and Jason Otterbach had encountered this
type of defect in barges before. They had discovered the de-
fects that same way that Smith had: by driving a skid steer
into a raised portion of hopper flooring. After the accident,
Smith and his co-workers pushed the coal away from the area
and saw the scab that had caused the skid steer to stop ab-
ruptly. Smith observed marks on the scab that he believed to
have been caused by a sledgehammer. He averred that all of
the damaged area appeared rusty and that there were no
breaks or tears in the metal that looked “fresh.” He opined
that the hammer marks and the rust meant that the damage
was old, and that the defect had been hammered down but
not welded into place at some point in the past. After Smith’s
accident, other Mulzer employees hammered down the scab,
and the coal was then cleared from the barge. A Mulzer em-
ployee then sent an email to Crounse’s Traffic Department in-
forming Crounse that there was “about a 12" to 14" scab stick-
ing up in the middle of the floor … that will need [to be] ad-
dressed sometime.” According to the email, Mulzer
4 No. 22-1303
employees “bent it back down the best we could and will be
able to load the barge. Might want to get it on a maintenance
list sometime.” R. 34-8. Mulzer did not inform Crounse that
an employee had been injured as a result of running into the
scab.
Crounse had procedures for regularly inspecting and re-
pairing its barges. Every time a deckhand or engineer walked
across barges that they were picking up or dropping off, they
were directed to look for any damage that required repair.
This inspection included any damage observed inside the
hopper, on the hull of the barge, the winches, the deck fittings
or any other areas of the barge. They also checked the barges
for water leaks. If they found no damage, they made no re-
port. If they found damage, they filed a damaged barge re-
port. Crounse did not require employees to go into hoppers
filled with a foot of coal dust to search for problems under the
coal because it would not be safe to do so. Nevertheless, it was
possible to detect split seams even in a barge loaded with coal.
Employees inspecting barges were trained to look for water
in the hull of the barge. Any water found would be pumped
out, and an employee would then crawl the hull to determine
where the water came from. This allowed Crounse to detect
split seams from below the hopper where cargo was stored.
Split seams are common on barges more than fifteen or
twenty years old. Crounse asserted that damage that required
immediate attention was always fixed at the first opportunity.
That would include a floor scab that was protruding enough
for equipment to become caught on it, or that was so extensive
that it would cause rock or stone to leak down into the hull.
Approximately eighty percent of damage was reported by
Crounse employees conducting routine inspections, and
No. 22-1303 5
twenty percent was reported by third parties such as loading
facilities.
Crounse did not consider the scab reported by Mulzer to
be serious because the Mulzer email reporting it did not indi-
cate that it was an urgent problem and did not reveal that any-
one had been hurt as a result of this defect. Although split
seams and scabs are common in barges of this age, Crounse’s
barge manager had never heard of anyone being injured by a
split seam or scab in the eleven years he had been a barge
manager. In the time period leading up to Smith’s accident,
Crounse had received no reports of damage to this barge, and
the barge had last required repairs in December 2015. Never-
theless, after receiving the report from Mulzer, Crounse sent
the barge for repairs in June 2017, and this seam, among oth-
ers, was repaired within a few months of Smith’s accident.
Twenty-three days before Smith’s accident, the barge had
been cleaned by a blade without incident. The barge was also
blade cleaned without incident only a few days before the
June repairs were made. After Smith’s accident and before the
repairs were completed in June, the barge was used without
any reported problems.
Nearly three years after the accident, Smith filed suit
against Crounse for the injuries he sustained when his skid
steer collided with the scab. He asserted claims for violations
of section 905(b) of the Longshore and Harbor Workers’ Com-
pensation Act, 33 U.S.C. § 901, et seq.; general maritime law;
and Indiana law. Following the completion of discovery,
Crounse moved for summary judgment contending that:
(1) there was no evidence that Crounse knew of or should
have known of the scab defect at the time of the accident;
(2) even if it had known of the defect, all parties were equally
6 No. 22-1303
aware that such a hazard could occur, and Mulzer determined
how it would go about the contractual task of cleaning the
barge; and (3) Smith admitted that the seatbelt, the safety
crossbar and the speed of the skid steer caused his injuries, all
factors not within Crounse’s turnover duties. The district
court concluded that Smith lacked evidence that Crounse had
actual knowledge of the defect or that it should have known
of the defect in the exercise of ordinary care, and thus Smith
failed to demonstrate that Crounse failed to comply with its
turnover duties under Scindia Steam Navigation Co. v. De Los
Santos, 451 U.S. 156 (1981). The court therefore granted sum-
mary judgment in favor of Crounse. Smith appeals.
II.
On appeal, Smith contends that the district court analyzed
the duty owed by the vessel owner to longshoremen employ-
ees of a stevedore under the wrong standard. He also argues
that the court improperly excluded the opinion testimony of
a lay witness and failed to construe the facts in a light most
favorable to the non-moving party. We review the district
court’s grant of summary judgment de novo, and we examine
the record in the light most favorable to the party opposing
judgment, in this case Smith, construing all reasonable infer-
ences from the evidence in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Horne v. Electric Eel Mfg. Co., 987
F.3d 704, 713 (7th Cir. 2021). Summary judgment is appropri-
ate when there are no genuine disputes of material fact and
the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Anderson, 477 U.S. at 247–48; Horne, 987 F.3d at
713.
The Supreme Court explained the duties owed by vessel
owners to longshoremen employees of stevedores under
No. 22-1303 7
section 905(b) in two seminal cases: Scindia Steam Navigation
Co. v. De Los Santos, 451 U.S. 156 (1981); and Howlett v. Birkdale
Shipping Co., 512 U.S. 92 (1994). In Scindia Steam, the Court set
out the general rule for liability of vessel owners under sec-
tion 905(b):
[T]he vessel owes to the stevedore and his long-
shoremen employees the duty of exercising due
care “under the circumstances.” This duty ex-
tends at least to exercising ordinary care under
the circumstances to have the ship and its
equipment in such condition that an expert and
experienced stevedore will be able by the exer-
cise of reasonable care to carry on its cargo op-
erations with reasonable safety to persons and
property, and to warning the stevedore of any
hazards on the ship or with respect to its equip-
ment that are known to the vessel or should be
known to it in the exercise of reasonable care,
that would likely be encountered by the steve-
dore in the course of his cargo operations and
that are not known by the stevedore and would
not be obvious to or anticipated by him if rea-
sonably competent in the performance of his
work.… The shipowner thus has a duty with re-
spect to the condition of the ship’s gear, equip-
ment, tools, and work space to be used in the
stevedoring operations; and if he fails at least to
warn the stevedore of hidden danger which
would have been known to him in the exercise
of reasonable care, he has breached his duty and
is liable if his negligence causes injury to a long-
shoreman.… It is also accepted that the vessel
8 No. 22-1303
may be liable if it actively involves itself in the
cargo operations and negligently injures a long-
shoreman or if it fails to exercise due care to
avoid exposing longshoremen to harm from
hazards they may encounter in areas, or from
equipment, under the active control of the ves-
sel during the stevedoring operation.
Scindia Steam, 451 U.S. at 166–67 (internal citation omitted).
The specific issue raised in Scindia Steam was the vessel’s
duty to longshoremen once cargo operations have begun. The
Court noted that vessel owners are, to a certain extent, enti-
tled to rely on stevedores to protect their longshoremen em-
ployees during cargo operations:
We are of the view that absent contract provi-
sion, positive law, or custom to the contrary—
none of which has been cited to us in this case—
the shipowner has no general duty by way of
supervision or inspection to exercise reasonable
care to discover dangerous conditions that de-
velop within the confines of the cargo opera-
tions that are assigned to the stevedore. The nec-
essary consequence is that the shipowner is not
liable to the longshoremen for injuries caused
by dangers unknown to the owner and about
which he had no duty to inform himself. This
conclusion is plainly consistent with the con-
gressional intent to foreclose the faultless liabil-
ity of the shipowner based on a theory of unsea-
worthiness or nondelegable duty. The ship-
owner, within limits, is entitled to rely on the
stevedore, and owes no duty to the
No. 22-1303 9
longshoremen to inspect or supervise the cargo
operations.
Scindia Steam, 451 U.S. at 172.
The situation presented in Scindia Steam forced the Court
to consider the limits of the vessel owner’s reliance on the ste-
vedore to keep its longshoremen employees safe. In that case,
the ship’s winch was malfunctioning, but the stevedore im-
providently directed its longshoremen to continue using it.
The Court concluded that, if the vessel owner knew of the de-
fect in the winch and should have realized that the winch pre-
sented an unreasonable risk of harm to the longshoremen,
then in some circumstances, the vessel owner would have a
duty to intervene and repair the ship’s winch. Scindia Steam,
451 U.S. at 175–76. This would be true, for example, if the ves-
sel owner knew that the defect existed from the outset. The
Court also noted that any contract between the stevedore and
the vessel owner should also be considered if any provisions
had bearing on the suit.
In Howlett, the Court addressed a vessel’s turnover duty
to warn of latent defects in the cargo stow and cargo area.
Howlett involved a longshoreman who was injured when un-
loading cargo from the defendant’s vessel. The cargo, which
consisted of bags of cocoa beans, had been improperly placed
on plastic sheets by the stevedore that loaded the bags. The
vessel had supplied the plastic sheets to the loading steve-
dore. The plaintiff could not see the sheets, which were cov-
ered with dirt and debris, and he slipped and fell on a sheet,
seriously injuring himself. The Court considered the scope of
the vessel owner’s duty to warn of latent hazards in the cargo
stow, an analysis that depended in part on the vessel owner’s
duty to inspect for such defects. 512 U.S. at 94–96.
10 No. 22-1303
The Howlett Court summarized the three general duties
that shipowners owe to longshoremen:
The first, which courts have come to call the
“turnover duty,” relates to the condition of the
ship upon the commencement of stevedoring
operations.… The second duty, applicable once
stevedoring operations have begun, provides
that a shipowner must exercise reasonable care
to prevent injuries to longshoremen in areas
that remain under the “active control of the ves-
sel.” The third duty, called the “duty to inter-
vene,” concerns the vessel’s obligations with re-
gard to cargo operations in areas under the prin-
cipal control of the independent stevedore.
Howlett, 512 U.S. at 98 (quoting Scindia Steam, 451 U.S. at 167–
178) (internal citations omitted).
The turnover duty is at issue in Smith’s appeal. The How-
lett Court described that duty:
A vessel must “exercise ordinary care under the
circumstances” to turn over the ship and its
equipment and appliances “in such condition
that an expert and experienced stevedoring con-
tractor, mindful of the dangers he should rea-
sonably expect to encounter, arising from the
hazards of the ship’s service or otherwise, will
be able by the exercise of ordinary care” to carry
on cargo operations “with reasonable safety to
persons and property.” … A corollary to the
turnover duty requires the vessel to warn the
stevedore “of any hazards on the ship or with
No. 22-1303 11
respect to its equipment,” so long as the hazards
“are known to the vessel or should be known to
it in the exercise of reasonable care,” and
“would likely be encountered by the stevedore
in the course of his cargo operations[,] are not
known by the stevedore[,] and would not be ob-
vious to or anticipated by him if reasonably
competent in the performance of his work.”
Howlett, 512 U.S. at 98–99 (internal citations omitted). Howlett
confined his claim to an allegation that the vessel owner failed
to warn that the deck was covered with plastic rather than the
paper and plywood that were ordinarily used when loading
cocoa beans.
The Court concluded:
[T]he vessel’s turnover duty to warn of latent
defects in the cargo stow and cargo area is a nar-
row one. The duty attaches only to latent haz-
ards, defined as hazards that are not known to
the stevedore and that would be neither obvi-
ous to nor anticipated by a skilled stevedore in
the competent performance of its work. Scindia
Steam, 451 U.S., at 167, 101 S.Ct., at 1622. Fur-
thermore, the duty encompasses only those haz-
ards that “are known to the vessel or should be
known to it in the exercise of reasonable care.”
Ibid. Contrary to Howlett’s submission, how-
ever, the exercise of reasonable care does not re-
quire the shipowner to supervise the ongoing
operations of the loading stevedore (or other
12 No. 22-1303
stevedores who handle the cargo before its arri-
val in port) or to inspect the completed stow.
Howlett, 512 U.S. at 105.
With these standards in mind, we turn to the circum-
stances of Smith’s injury. As Smith has pointed out, he was
injured by a defect in the vessel, not a defect in the cargo stow.
Nevertheless, that vessel defect was in the cargo area and was
hidden by cargo (the remaining coal) that had been left be-
hind by the last stevedore; in fact, Smith’s employer was con-
tractually obligated to remove that remaining cargo and clean
the floor of the hopper. Smith has presented no evidence sug-
gesting that Crounse had actual knowledge about the scab de-
fect before the accident. Consequently, Crounse did not warn
Mulzer or any of its employees about the scab. There is no
dispute that Crounse charged its employees with regularly in-
specting the barges and promptly reporting any problems.
Crounse’s corporate representatives testified that the com-
pany repaired serious problems as soon as it became aware of
them. That included promptly fixing any scab that was pro-
truding enough for equipment to become caught on it.
Crounse’s inspections did not include requiring employees to
go down into the remaining foot of coal/cargo and search for
problems; such an inspection would require climbing in and
out of the barge while it was moving up and down the river,
a procedure that was not safe. Crounse also trained workers
to check the hull for water leaks that could indicate split seam
damage to the floor of the hopper.
Smith presented no evidence on industry standards for in-
spection of vessels and so the record contains no evidence that
Crounse’s inspection and repair procedures were inadequate,
neglectful or failed to meet industry standards. Nor is there a
No. 22-1303 13
history of problems with Crounse’s inspection procedures in
the record. Although Smith had never encountered a defect of
this type, there is no dispute that the two employees at Mulzer
who trained Smith were aware that barges of this age could
have split seams and scabs on the floor of the hopper. In fact,
they had encountered defects of this sort in the past in the
same manner that Smith did, by hitting them with a skid steer
blade. Those encounters had not caused injuries, and the only
Crounse employee to testify on the matter was not aware of
any injuries caused by scabs in the eleven years that he had
been employed there. The Mulzer trainers apparently had not
passed on their knowledge of these types of defects to Smith.
Nevertheless, Smith contends that Crounse should have
known of the defect or that the company had constructive
knowledge of the scab and should have warned Mulzer. Spe-
cifically, Smith averred that the “scab appeared to be old dam-
age. It did not have any tears or breaks in the metal that were
fresh. All damage was rusty. The scab also had marks of prior
repairs that showed it had been hammered down in the past,
but had not been welded in place.” R. 35-1. The district court
ruled that, as a lay witness, Smith would be allowed to testify
to his observations regarding the presence of rust or the ap-
pearance of marks on the scab. But the court would not admit
Smith’s opinions on whether the tears or breaks were “fresh”
or “old damage,” how long the rust had been present, or
whether the scab had previously been repaired by being ham-
mered down but not welded. We review the district court’s
decision to admit or exclude lay opinion for abuse of discre-
tion. Yancick v. Hanna Steel Corp., 653 F.3d 532, 547 (7th Cir.
2011).
14 No. 22-1303
The court appropriately credited Smith’s averments that
rust was present and that he observed marks on the metal. But
the court was well within its discretion in excluding Smith’s
lay opinion on the implications of these observations, such as
whether the damage was old or fresh based on the rust and
the marks on the metal, how the marks were created, or
whether the scab had previously been hammered but not
welded. The presence of corrosion or other marks on the
metal and the inferences to be drawn from them are matters
for expert rather than lay testimony, or so the district court
could have reasonably concluded. A calculation of how fast
corrosion would appear would likely depend on myriad fac-
tors that are the subject of expert rather than lay opinion. Fed-
eral Rule of Evidence 701 governs the admission of a lay wit-
ness’s opinion testimony, which must be (a) rationally based
on the witness’s perception; (b) helpful to clearly understand-
ing the witness’s testimony or determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge. United States v. Eaden, 37 F.4th 1307, 1312 (7th Cir.
2022). The district court reasonably found that the implica-
tions of rust or certain marks on the metal required scientific,
technical or specialized knowledge, requiring expert testi-
mony. We see no abuse of discretion in that decision.
Smith had no personal knowledge of when the scab was
created, how the marks that he observed were created, or
whether Crounse or a third party had previously tried to re-
pair the area with hammering or welding. He offered nothing
other than speculation to support his opinion testimony. As is
apparent from the actions of Mulzer employees on the day of
Smith’s accident, it is possible that a prior stevedore created
the scab and then hammered it down in order to complete the
job, without Crounse’s knowledge. Indeed, immediately
No. 22-1303 15
before Crounse delivered the barge to Mulzer, another steve-
dore had loaded and then partially unloaded coal from the
hopper and could have created the scab during that process.
It is even possible that Smith created the scab when his skid
steer blade hit a split seam. On this record, a jury would have
to speculate about when the scab was created and whether
Crounse would have had an opportunity to detect it before
delivering the barge to Mulzer for cleaning.
Smith contends that the district court improperly weighed
his credibility when it found his testimony “unpersuasive.” It
is clear from context, though, that the court was not weighing
the evidence or deciding Smith’s credibility but rather was ex-
cluding the opinion evidence because it was a matter for ex-
pert rather than lay testimony. No other evidence supported
Smith’s claim that the damage was old or existed at the outset,
a point Smith sought to make to prove that Crounse should
have known the defect was present when the vessel was
turned over to Mulzer.
Smith also failed to produce evidence suggesting that
Crounse should have known about the scab in the exercise of
reasonable care. In fact, the evidence showed that Crounse’s
employees regularly inspected the barges, that no Crounse
employee or third party had reported this defect, that the
barge at issue had been cleaned with a blade by a skid steer
without incident approximately three weeks before Smith’s
accident, and that the barge was used without incident for a
few months after Smith’s accident and before the seam in
question was professionally repaired. Crounse’s corporate
representative testified that split seams were common on
barges of this age and that persons operating skid steers in
this environment would have known to proceed with caution.
16 No. 22-1303
Crounse was also unaware of any instance of a scab causing
an injury, and Mulzer’s own employees treated the issue as
relatively minor, telling Crounse that it “[m]ight want to get
it on a maintenance list sometime.” Smith’s own testimony
that other Mulzer employees had encountered scabs in simi-
lar situations supports Crounse’s claim that the problem was
one likely to be encountered by a stevedore in the course of
cargo operations, and anticipated by him if reasonably com-
petent in the performance of his work. There is no evidence in
the record to the contrary. Under Howlett and Scindia Steam,
the court therefore correctly concluded that Smith lacked evi-
dence to hold Crounse liable for Smith’s injuries under section
905(b).
Smith’s remaining arguments to the contrary are unavail-
ing. Smith asserts that the district court applied the standard
for the vessel owner’s duty regarding defects in the cargo
stow rather than defects in the vessel itself. The court made
no such error. The court ruled against Smith because he failed
to provide evidence that Crounse knew of the defect or
should have known of the defect in the exercise of ordinary
care, the standard set forth for a vessel owner’s turnover duty
in Scindia Steam and Howlett. See Scindia Steam, 451 U.S. at 167(“The shipowner thus has a duty with respect to the condition
of the ship’s gear, equipment, tools, and work space to be
used in the stevedoring operations; and if he fails at least to
warn the stevedore of hidden danger which would have been
known to him in the exercise of reasonable care, he has breached
his duty and is liable if his negligence causes injury to a long-
shoreman.”) (emphasis added); Howlett, 512 U.S. at 98–99
(same). As we just noted, Smith produced no evidence that
Crounse’s inspection and maintenance routines were
No. 22-1303 17
inadequate. The mere existence of the scab is not evidence
that Crounse’s procedures were neglectful.
Smith also argues that it was not merely his personal opin-
ion that Crounse’s inspections were inadequate but that the
Supreme Court had decreed that the vessel’s owner had a
duty to inspect areas of the ship commensurate with its access
and control. Again, although it is true that the Court stated
that, between ports, the vessel’s owner has a duty to inspect
areas within its access and control, all of the evidence suggests
that Crounse did so in a reasonable manner. The area under
the remaining coal was not safely accessible while the vessel
was in transit, and there is no evidence that Crounse could
have discovered the scab before Smith’s accident in the exer-
cise of reasonable care. In addition to its frequent visual in-
spections, Crounse employees also regularly checked for wa-
ter leaks that might indicate the presence of split seams, and
there is no evidence in the record that Crounse failed to abide
by this procedure or that this procedure did not meet the
standard of reasonable care. Smith produced no evidence re-
garding industry standards, for example, to call into question
the adequacy of Crounse’s procedures in this situation. Sum-
mary judgment was therefore appropriate.
None of the cases relied upon by Smith alter this outcome.
Smith cites Matthews v. Ernst Russ S.S. Co., 603 F.2d 676 (7th
Cir. 1979), as controlling the outcome here because the court
there did not “agonize over what precisely the defendant
therein knew and when the defendant knew it.” Smith reads
Matthews as holding that the vessel was implicitly charged
with constructive knowledge of the flaws of a ladder where
the vessel had allowed a state of disrepair arising from normal
wear and tear over a period of time. But there is no holding
18 No. 22-1303
on constructive knowledge in Matthews. In that case, the ves-
sel owner attempted to argue that it could not be held liable
for the stevedore’s use of a badly broken ladder because the
dangers of using it were open and obvious. The court noted
only that the jury was presented with sufficient evidence of
the vessel owner’s negligence without detailing that evidence.
Smith reads too much into Matthews.
Nor is Smith aided by our analysis in Cameron v. Consoli-
dated Grain & Barge Co., 654 F.2d 468 (7th Cir. 1981). In Cam-
eron, we reversed a jury verdict against a vessel owner and in
favor of a longshoreman injured by a protrusion on the vessel
because there was no evidence that the vessel owner had ac-
tual or constructive knowledge of the existence of the protru-
sion. Instead, the vessel owner produced evidence that, con-
sistent with industry practice, it assigned the duty of inspect-
ing the barges to barge cleaners and tugboat operators. The
plaintiff’s own expert testified that this practice was safe and
reasonable so long as the inspectors were competent. The
plaintiff produced no evidence that the inspectors were not
competent. We noted that the record contained no evidence
that the vessel owner should have known about the protru-
sion prior to the accident that injured the longshoreman:
This is not a case in which the jury was com-
pelled to choose between two conflicting bodies
of proof. Rather, the jury was confronted with
[plaintiff’s] unsupported assertions, on the one
hand, and [the vessel owner’s] proof to the con-
trary, on the other. [The vessel owner] proved
that [the barge] was inspected in a reasonable
and safe manner consistent with industry stand-
ards only three days prior to the accident and
No. 22-1303 19
that the inspection did not reveal the protrusion
which caused [the plaintiff’s] injury. [The plain-
tiff] offered no proof that the inspection was im-
proper. [The vessel owner] also showed that the
protrusion was not “wear and tear” but could
have been caused by a single incident prior to
[the plaintiff’s] accident. ... He offered only his
own testimony to show that the protrusion did
not occur after the barge’s arrival at Illinois
Grain and nothing to show that it did not occur
during towing. Absent proof that the inspection
was improper or negligent or that the protru-
sion did not occur during or after the inspection,
there simply was no evidence to support a find-
ing of actual or constructive notice. Here the ev-
idence showed only that [the vessel owner] took
all reasonable steps to ensure that [the barge]
was safe when it arrived[.]
Cameron, 654 F.2d at 472–73.
According to Smith, we can infer from Cameron’s holding
of insufficient evidence what evidence would be sufficient to
show constructive knowledge, including failure of inspection,
knowledge of the hazard generally, testimony that the hazard
is caused by wear and tear rather than a single unpredictable
event, exclusive control by the defendant rather than a third
party just prior to the accident, and evidence that the hazard
existed at the outset of the plaintiff’s encounter with the
barge. According to Smith, all of that evidence is present here.
But as we have just noted, Crounse did produce evidence of
reasonable inspection and repair procedures, and Smith pro-
duced no evidence that these procedures were inadequate.
20 No. 22-1303
Although split seams are caused by wear and tear, the record
contains uncontested evidence that scabs are created by un-
predictable events when a piece of equipment such as a skid
steer catches an edge of a split seam at great enough speed. In
this case, the barge was under the control of the prior steve-
dore until Crounse delivered it to Mulzer, without a safe op-
portunity to inspect the bottom of the hopper that was cov-
ered with coal that Mulzer was contractually obligated to re-
move. Nor was there any competent evidence regarding how
long the defect had existed when the barge was delivered to
Mulzer. Cameron thus supports Crounse rather than Smith.
We have considered Smith’s other arguments and find
none persuasive. In the end, Smith produced no evidence
demonstrating that Crounse knew or, in the exercise of rea-
sonable care, should have known of the defect in the hopper
floor. The district court correctly entered judgment in favor of
Crounse.
AFFIRMED.