Herbert Hardimon v. American River Transportation Company , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2348
HERBERT HARDIMON ,
Plaintiff-Appellant,
v.
A MERICAN R IVER TRANSPORTATION C OMPANY , LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 21-cv-00298 — Reona J. Daly, Magistrate Judge.
____________________
A RGUED J ANUARY 17, 2024 — DECIDED M ARCH 19, 2024
____________________
Before F LAUM , EASTERBROOK, and PRYOR , Circuit Judges.
F LAUM , Circuit Judge. After slipping on ice on the deck of a
barge, Herbert Hardimon fell overboard and spent twelve
minutes in the freezing February waters of the Mississippi
River. His complaint, however, fails to connect his plunge
with the breach of any duty owed to him by American River
Transportation Company, LLC (ARTCO). As a result, we af-
firm the district court’s dismissal of his claim against ARTCO
with prejudice.

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2 No. 22-2348
I. Background
Hardimon was employed by SCF Lewis and Clark Fleet-
ing, LLC (SCF) as a crewmember on a flat deck crane barge.
Most of his work involved cleaning barges on the Mississippi
River. To do so, the crane barge would moor next to a barge
in need of cleaning, and Hardimon would help attach the
crane’s rigging to a hatch cover on the other barge. The crane
would first raise the hatch cover and then lower a Bobcat skid
steer loader into the barge’s cargo box. Once Hardimon
climbed through the open hatch, he would use the Bobcat to
clean the bottom of the barge.
On February 12, 2020, barges controlled and operated by
ARTCO broke away from their moorings and struck an SCF
barge, damaging a hatch cover. The next day, SCF assigned
Hardimon to work aboard the damaged barge. The weather
was inclement—a wintery mix had been falling for hours and
the temperatures plummeted into the teens.
While Hardimon’s co-worker attached the crane’s rigging
to the barge’s hatch cover,1 Hardimon climbed a ladder to the
top of another hatch cover to signal the crane operator. When
Hardimon climbed back down the ladder and stepped on to
the deck of the barge, he slipped on ice and fell into the Mis-
sissippi River. Twelve minutes passed before Hardimon was
rescued, and he suffered injuries as a result.
Hardimon filed suit against SCF and ARTCO. In his oper-
ative third amended complaint, Hardimon brought a claim of
1 Hardimon’s complaint does not clearly allege whether this hatch
cover was the same one damaged in the breakaway. We will assume it
was as it does not impact our reasoning.

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No. 22-2348 3
general maritime negligence against ARTCO. After briefing,
a magistrate judge dismissed the claim with prejudice under
Federal Rule of Civil Procedure 12(b)(6), concluding that Har-
dimon failed to allege that his injuries were proximately
caused by ARTCO. Hardimon timely appealed.
II. Discussion
“We review the court’s dismissal order de novo, accepting
the complaint’s well-pleaded allegations as true and drawing
all favorable inferences for the plaintiff.” Killingsworth v.
HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). To
survive dismissal, the complaint’s “[f]actual allegations must
be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007).
Admiralty law governs Hardimon’s claim against
ARTCO. The “elements of a negligence cause of action in ad-
miralty … are essentially the same as land[-]based negligence
under the common law.” Pearce v. United States, 261 F.3d 643,
647 (6th Cir. 2001) (citation and internal quotation marks
omitted); see also 1 Thomas J. Schoenbaum, Admiralty & Mar-
itime Law § 5:4 (6th ed. 2018 & 2023 update) (same). “[T]he
plaintiff must demonstrate that there was a duty owed by the
defendant to the plaintiff, breach of that duty, injury sus-
tained by [the] plaintiff, and a causal connection between the
defendant’s conduct and the plaintiff’s injury.” In re Great
Lakes Dredge & Dock Co., 624 F.3d 201, 211 (5th Cir. 2010) (sec-
ond alteration in original) (citation and internal quotation
marks omitted).
“[A] tortfeasor is accountable only to those to whom a
duty is owed,” Consol. Aluminum Corp. v. C.F. Bean Corp., 833
F.2d 65, 67 (5th Cir. 1987), and a “[d]uty may be owed only

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4 No. 22-2348
with respect to the interest that is foreseeably jeopardized by
the negligent conduct,” In re Great Lakes Dredge & Dock Co.,
624 F.3d at 211 (citation and internal quotation marks omit-
ted); see also Kawasaki Kisen Kaisha, Ltd. v. Plano Molding Co.,
696 F.3d 647, 658 (7th Cir. 2012) (“A duty may be found where
harm is reasonably foreseeable.”). “[T]he determination of
any question of duty—that is, whether the law imposed upon
the defendant the obligation to protect the plaintiff against the
consequences which occurred—is a question of law, and is
not for the jury.” Fulk v. Ill. Cent. R.R., 22 F.3d 120, 125 (7th
Cir. 1994) (citation omitted); Fuentes v. Classica Cruise Operator
Ltd, 32 F.4th 1311, 1317 (11th Cir. 2022) (applying same stand-
ard in maritime context).
“Duty … is measured by the scope of the risk that negli-
gent conduct foreseeably entails.” In re Signal Int’l, LLC, 579
F.3d 478, 491 (5th Cir. 2009) (omission in original) (citation
and internal quotation marks omitted). So, “defin[ing] the
[scope of] the duty,” if any, owed by ARTCO to Hardimon
requires the court to determine “the foreseeability of the in-
jury to [Hardimon] resulting from [ARTCO’s] negligent”
mooring of its barges. Consol. Aluminum Corp., 833 F.2d at 67;
see also Fuentes, 32 F.4th at 1317 (“Generally speaking, a duty
of care exists under maritime law when injury is foreseea-
ble ….” (citation and internal quotation marks omitted)). In
turn, an injury is foreseeable if “harm of a general sort to per-
sons of a general class might have been anticipated by a rea-
sonably thoughtful person, as a probable result of the act or
omission, considering the interplay of natural forces and
likely human intervention.” Consol. Aluminum Corp., 833 F.2d
at 68; Kawasaki Kisen Kaisha, Ltd., 696 F.3d at 659 (applying fed-
eral maritime common law and holding that it was not

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No. 22-2348 5
foreseeable that heavy “molds would break through their
crates and cause a [train] derailment”).
Put another way, we examine whether the harm was one
of “the natural and probable risks that a reasonable person
would likely take into account in guiding her practical con-
duct.” In re Signal Int’l, LLC, 579 F.3d at 491–92 (citation and
internal quotation marks omitted); Ortega Garcia v. United
States, 986 F.3d 513, 526 (5th Cir. 2021) (“This definition of
foreseeability is in terms of general forms of harms and general
classes of victims.”); Serbin v. Bora Corp., 96 F.3d 66, 72 (3d Cir.
1996) (explaining that “[t]he type of foreseeability that deter-
mines a duty of care … is not dependent on the foreseeability
of a specific event” (second alteration in original) (citation
omitted)).
For Hardimon’s injury to have been foreseeable, (1) crew-
members 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 (2) 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. See Ortega Garcia, 986 F.3d at
526.
While Hardimon may have been within the general class
of victims foreseeable to ARTCO, the harm was not. The Fifth
Circuit’s analysis in Consolidated Aluminum is instructive.
There the court concluded it was not foreseeable to a dredging
company “that its failure to follow safe dredging practices
would likely result in physical damage to the equipment and
work-in-progress at [an] aluminum reduction plant several
miles away.” 833 F.2d at 68. It explained, had the dredging
company’s negligence caused “[i]njury to property and

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6 No. 22-2348
persons from the escaping gas, or from a fire … [those conse-
quences] would be foreseeable.” Id. But the harm that resulted
was not. Id.
Similarly, Hardimon’s injury was not a foreseeable result
of the barge collision. 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.
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.
At base, the general sort of harm in this case—slipping on
ice on the deck of a barge—is not within the class of harms
ARTCO should reasonably be expected to foresee resulting
from its negligent barge mooring. See Ortega Garcia, 986 F.3d
at 526–27 (rejecting negligence claim brought on behalf of de-
ceased swimmer because “a private vessel travelling at night
in a high-traffic waterway would not reasonably anticipate
encountering swimmers in the water”); Crear v. Omega Pro-
tein, Inc., 86 F. App’x 688, 692 (5th Cir. 2004) (holding that a
reasonable employer would not foresee “that their negligence
in failing to properly affix a stern pole [on a fishing boat]
would cause an employee” injured by the stern pole to de-
velop psychosis and murder his grandmother). Conse-
quently, ARTCO owed Hardimon no duty of care.2
2 While the district court resolved this case on the proximate cause
element, “we may affirm on any basis supported by the record, so long as

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No. 22-2348 7
Hardimon belatedly developed a second argument, claim-
ing he was a rescuer coming to the aid of the damaged barge
and, as a result, ARTCO owed him a duty of care. It has long
been said, “Danger invites rescue.” Wagner v. Int’l Ry. Co., 133
N.E. 437, 437 (N.Y. 1921) (Cardozo, J.). As a result, the rescuer
doctrine, which has been extended to maritime cases, Chris-
tensen v. Ga.-Pac. Corp., 279 F.3d 807, 816 (9th Cir. 2002), ap-
plies to people “who voluntarily expose[] [them]sel[ves] to
danger in order to rescue others from it,” Barlow v. Liberty
Mar. Corp., 746 F.3d 518, 524–26 (2d Cir. 2014).
Courts have explained, however, that the doctrine is lim-
ited to injuries resulting from the rescuer’s attempt “to save”
or protect “an imperiled party.” Fulton v. St. Louis-S.F. Ry. Co.,
675 F.2d 1130, 1133–34 (10th Cir. 1982); Restatement (Third) of
Torts: Phys. & Emot. Harm § 32 (2010) (“[T]he actor’s liability
includes any harm to a person resulting from that person’s
efforts to aid or to protect the imperiled person or property,
so long as the harm arises from a risk that inheres in the effort
to provide aid.”); Karahodzic v. JBS Carriers, Inc., 881 F.3d 1009,
1020 (7th Cir. 2018) (explaining that “[t]he rescue doctrine ap-
plies ….[to a] rescuer who voluntarily attempts to save the life
or secure the safety of another person in peril” and permits
the rescuer to “bring[] a negligence action against [the] de-
fendant whose actions … placed [the] third party … in a po-
sition of peril”).
Even if we assume the doctrine extends “to the rescue of
property” as other courts have, Christensen, 279 F.3d at 816,
the opposing party had a fair opportunity to be heard on the issue in the
district court,” as Hardimon did here. Bradley Hotel Corp. v. Aspen Specialty
Ins., 19 F.4th 1002, 1006 (7th Cir. 2021).

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8 No. 22-2348
Hardimon’s complaint fails to allege that he was injured
while attempting to rescue the barge. Despite three opportu-
nities to amend, his complaint does not allege that he was re-
sponding to an exigent or dangerous situation. Uniformly, the
cases applying the maritime rescue doctrine do so where a
person was injured while reacting to what they believed was
an emergency scenario where life or property depended on
their quick response. See, e.g., Furka v. Great Lakes Dredge &
Dock Co., 755 F.2d 1085, 1087–88 (4th Cir. 1985) (holding there
was a question of fact regarding the application of the rescue
doctrine where plaintiff came to the aid of someone “freezing
to death” in an “open boat”); Wharf v. Burlington N. R.R., 60
F.3d 631, 634 (9th Cir. 1995) (applying rescue doctrine where
rescuer was injured while attempting to free his coworker
who was “trapped in [a] frozen ballast in a railroad car”);
Christensen, 279 F.3d at 810–11, 816 (holding there was a dis-
pute of material fact about whether a long-shoreman who in-
jured himself attempting to secure a ship that sprung free of
its dock during a storm could assert the rescue doctrine); Wag-
ner, 133 N.E. at 437 (concluding that a question of fact re-
mained where a plaintiff was injured attempting to rescue his
cousin who had been thrown out of a moving train).
While, in his complaint, Hardimon alleges that it was fore-
seeable to ARTCO that people could be injured while making
emergency repairs, he fails to allege facts supporting an infer-
ence that he was making emergency repairs, or doing any ur-
gent work, at the time of his injury. 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.

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No. 22-2348 9
In sum, there is no support in Hardimon’s complaint for
his rescuer theory, and the facts he alleged bear no resem-
blance to scenarios in which courts have applied the doc-
trine.3 As a result, his claim fails as a matter of law.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is A FFIRMED.
3 While in briefing and at oral argument Hardimon asserted that he
was exigently repairing the barge, the allegations in his operative com-
plaint do not support that claim. Cf. Pirelli Armstrong Tire Corp. Retiree Med.
Benefits Tr. v. Walgreen Co., 631 F.3d 436, 448 (7th Cir. 2011) (explaining
that allegations in pleadings cannot amend a complaint).

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