Authenment v. Ingram Barge Company et al
Filing
267
ORDER AND REASONS granting 216 Motion for Summary Judgment, denying as moot Plaintiff's 209 Cross Motion for Partial Summary Judgment; denying Valero's 197 Motion for Summary Judgment; granting in part Plaintiff's 210 Cros s Motion for Partial Summary Judgment. No claims remain against Defendants Kinder Morgan Bulk Terminals, Inc., Kinder Morgan Liquids Terminals, LLC, and Kinder Morgan Energy Partners, LP and they are dismissed from this suit. Signed by Judge Jane Triche Milazzo. (ecm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDWARD AUTHEMENT
CIVIL ACTION
VERSUS
NO: 10‐2107
INGRAM BARGE COMPANY, ET AL.
SECTION: "H"(4)
ORDER AND REASONS
Before the Court are cross Motions for Summary Judgment filed by Defendants Kinder
Morgan Bulk Terminals, Inc., Kinder Morgan Liquids Terminals, LLC, and Kinder Morgan Energy
Partners, LP (collectively "GATX"), Defendant Valero Refining Texas, LP ("Valero"), and Plaintiff. For
the following reasons, GATX's Motion (R. Doc. 216) is GRANTED, and Plaintiff's cross Motion (R.
Doc. 209) is DENIED AS MOOT. Valero's Motion (R. Doc. 197) is DENIED, and Plaintiff's cross Motion
(R. Doc. 210) is GRANTED IN PART.
1
BACKGROUND
This is a maritime personal injury action originally brought by Plaintiff Edward Authement.1
Plaintiff worked as a tankerman on various vessels in navigation from 1977 to 1993. Plaintiff
alleges that he loaded and unloaded chemicals containing benzene at petrochemical facilities
owned and operated by GATX and Valero. Plaintiff further alleges that he contracted Acute
Myelogenous Leukemia as a result of his exposure to benzene.
Plaintiff filed suit in July 2010. His second amended complaint named seventeen
defendants, and asserted causes of action under the Jones Act and the general maritime law. The
only remaining Defendants are GATX and Valero. Plaintiff has asserted causes of action against
each for negligence under the general maritime law and strict products liability. It is undisputed
that neither GATX nor Valero was Plaintiff's Jones Act employer.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ.
P. 56(c) (2012). A genuine issue of fact exists only "if the evidence is such that a reasonable jury
1
Edward Authement passed away during the pendency of this action. Mary Authement—the
Independent Administrator of the Succession of Edward Authement—has been substituted as Plaintiff. For
ease of reference, the Court refers to Edward Authement as "Plaintiff" in the instant Order.
2
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
In determining whether the movant is entitled to summary judgment, the Court views facts
in the light most favorable to the non‐movant and draws all reasonable inferences in his favor.
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997). "If the moving party meets the
initial burden of showing that there is no genuine issue of material fact, the burden shifts to the
non‐moving party to produce evidence or designate specific facts showing the existence of a
genuine issue for trial." Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.
1995). Summary judgment is appropriate if the non‐movant "fails to make a showing sufficient to
establish the existence of an element essential to that party’s case." Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). "In response to a properly supported motion for summary judgment, the
nonmovant must identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to sustain a finding in
favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof
at trial." John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004)
(internal citations omitted). "We do not . . . in the absence of any proof, assume that the
nonmoving party could or would prove the necessary facts." Badon v. R J R Nabisco, Inc., 224 F.3d
382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
Additionally, "[t]he mere argued existence of a factual dispute will not defeat an otherwise
3
properly supported motion." Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
LAW AND ANALYSIS
GATX and Valero have each moved for summary judgment and seek dismissal of all claims
against them. Plaintiff has also moved for summary judgment as to certain affirmative defenses
asserted by each Defendant.
I.
GATX's Motion for Summary Judgment
GATX moves this Court for the entry of summary judgment, dismissing Plaintiff's claims for
products liability and negligence under the general maritime law. The Court addresses each claim
in turn. For the following reasons, the Motion is granted, and GATX is hereby dismissed.
A. Products Liability
The Supreme Court has recognized products liability as part of the general maritime law.
E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 865 (1986). "The general maritime
law is an amalgam of traditional common‐law rules, modifications of those rules, and newly
created rules." Id. (citations omitted). In developing the general maritime law, courts have
consulted state law as well as the Restatement of Torts. Vickers v. Chiles Drilling Co., 822 F.2d 535,
538 (5th Cir. 1987) (citations omitted). Thus, the initial question before the Court is whether to
apply state law, the Restatement, or some combination of both to this maritime products liability
action. The Fifth Circuit has not definitively addressed this issue. See Hebert v. Outboard Marine
4
Corp., 638 F. Supp. 1166, 1170 (E.D. La. 1986) (recognizing lack of guidance). Numerous courts,
however, have embraced Section 402A of the Restatement (Second) of Torts as the "best
expression" of the law of products liability under the general maritime law. Ocean Barge Transp.
Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 123 (3d Cir. 1984) (collecting cases); see also
Hebert, 638 F. Supp. at 1170 (same); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5–7
(5th ed. 2012) ("The applicable substantive law of products liability in admiralty is Section 402a of
the Restatement (Second) of Torts."). Indeed, both the Supreme Court and the Fifth Circuit have
applied the Restatement (Second) of Torts in maritime products liability cases. See, e.g., Saratoga
Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875 (1997); Vickers, 822 F.2d; Pavlides v. Galveston
Yacht Basin, Inc., 727 F.2d 330 (5th Cir. 1984); Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir.
1976). Other sections of this Court have applied Section 402A as well. See, e.g., Cargill, Inc. v.
Degesch America, Inc., 875 F. Supp. 2d 667 (E.D. La. 2012); Penn Mar., Inc. v. Rhodes Elec. Servs.,
Inc., No. 11–02761, 2012 WL 3027937 (E.D. La. July 24, 2012); Daigle v. L&L Marine Trans. Co., 322
F. Supp. 2d 717 (E.D. La. 2004). Moreover, by applying the Restatement in maritime products
liability cases, "the Court furthers the federal interest in establishing uniform rules of maritime
law." Transco Syndicate #1, LTD v. Bollinger Shipyards, Inc., 1 F. Supp. 2d 608, 614 (E.D. La. 1998)
(citation omitted).
Section 402A provides as follows:
5
(1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if
(a) the seller is engaged in the business of selling
such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the product
from or entered into any contractual relation with
the seller.
The threshold inquiry under Section 402A is whether the defendant is a seller or manufacturer of
the allegedly defective product.2 See Daigle, 322 F. Supp. 2d at 727; 1 Thomas J. Schoenbaum,
Admiralty and Maritime Law § 5–7 (5th ed. 2012). The record is clear that GATX neither sold nor
manufactured the products of which Plaintiff complains. Rather, as Plaintiff concedes in his
briefing, GATX provided "a simple pick up and drop off location" for various oil and chemical
companies. (R. Doc. 242.) In other words, manufacturers and refiners contracted with shipping
companies to transport products to and from GATX's storage facilities. GATX merely provided bulk
2
Although the Restatement only uses the term "seller," "manufacturers of defective products are
also swept within its ambit." Reyes v. Wyeth Labs., 498 F.3d 1264, 1272 n.10 (5th Cir. 1974); Restatement
(Second) of Torts § 402A cmt. f.
6
storage services.
Plaintiff nonetheless contends that GATX is liable under Section 402A as a "distributor" who
"places a product on the market or introduces it into the stream of commerce." (Id.) This
argument is unpersuasive for multiple reasons. First, while comment f to Section 402A provides
that liability may extend to a "distributor," the reference is made in the context of describing when
a person is "engaged in the business of selling products," under Section 402A 1(a). Restatement
(Second) of Torts § 402A cmt. f (emphasis added). There is nothing in Section 402A or its
comments to suggest liability extends beyond one who sells or manufactures products. To the
contrary, Section 402A and the comments repeatedly use the terms "sell," "seller," and "selling"
when describing the scope of liability. Moreover, Black's Law Dictionary defines a "distributor" as
a "wholesaler, jobber, or other manufacturer or supplier that sells chiefly to retailers and
commercial users." Black's Law Dictionary (9th ed. 2009) (emphasis added).
Second, extending liability to entities such as GATX that act merely as conduits in the stream
of commerce is inconsistent with the policy justifications for imposing strict liability. As explained
in comment c, "by marketing his product for use and consumption, [the seller or manufacturer] has
undertaken and assumed a special responsibility towards any member of the consuming public."
Restatement (Second) of Torts § 402 cmt. c. (emphasis added). Thus, the "public has a right to and
does expect . . . that reputable sellers will stand behind their goods." Id. (emphasis added). And
finally: "public policy demands that the burden of accidental injuries caused by products intended
7
for consumption be placed upon those who market them." Id. (emphasis added). Thus, only a
defendant who plays an active role in marketing products to the public, i.e., a seller or
manufacturer, should be subject to the "special rule" of strict liability. See Restatement (Second)
of Torts § 402 cmt. a.
Third, the case law cited by Plaintiff—most of which is non‐binding state court
precedent—does not support his expansive interpretation of liability under Section 402A. (See R.
Doc. 242 n.10.) The few Fifth Circuit authorities cited apply primarily Louisiana law, only
tangentially discussing the Restatement. See generally Reeves v. AcroMed Corp., 103 F.3d 442 (5th
Cir. 1997); CNG Producing Co. v. Columbia Gulf Transmission Corp., 709 F.2d 959 (5th Cir. 1983);
Fruge's Heirs v. Blood Servs., 506 F.3d 841 (5th Cir. 1975). More importantly, the limited discussion
of the Restatement in these cases does not support whatsoever the extension of liability to GATX.
Given the foregoing, the Court finds that GATX is neither a manufacturer nor seller under
Section 402A. Accordingly, the products liability claim against GATX is dismissed.
B. Negligence
Negligence is an actionable wrong under the general maritime law. Withhart v. Otto
Candies, LLC, 431 F.3d 840, 842 (5th Cir. 2005) (citations omitted). "The elements of a maritime
negligence cause of action are essentially the same as land‐based negligence under the common
law." Id. (citation omitted). To state a claim for relief, the plaintiff must demonstrate that: (1) the
defendant owed a duty; (2) the defendant breached that duty; (3) the plaintiff sustained damages;
8
and (4) the defendant's wrongful conduct caused his damages. In re Great Lakes Dredge & Dock
Co., LLC, 624 F.3d 201, 211 (5th Cir. 2010) (citations omitted).
GATX moves for summary judgment on the ground that it does not owe any duty to
Plaintiff. Specifically, GATX argues that to the extent any duties were owed to Plaintiff, such duties
were imposed solely upon Plaintiff's Jones Act employers, the owners of the vessels on which
Plaintiff served, and vessel operators. In support of this argument, GATX notes that a Jones Act
employer has a non‐delegable duty to provide a seaman with a reasonably safe place to work.
Similarly, GATX argues the duty to furnish a seaworthy vessel is a non‐delegable duty owed by the
owner of a vessel. Finally, GATX cites certain federal regulations which, according to GATX,
establish that vessel operators are charged with the duty to supervise cargo transfer and warn of
dangerous products.
The existence of a duty vel non is a question of law. In re Great Lakes, 624 F.3d at 211
(citation omitted). Whether a duty is owed "depends on a variety of factors, 'most notably the
foreseeability of the harm suffered by the complaining party.'" Canal Barge Co., Inc. v. Torco Oil
Co., 220 F.3d 370, 377 (5th Cir. 2000) (quoting Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d
65, 67 (5th Cir. 1987)). In the context of maritime torts, the Fifth Circuit has defined the concept
of foreseeabilty:
We perceive a harm to be the foreseeable consequence of an act or
omission if harm of a general sort to persons of a general class might
have been anticipated by a reasonably thoughtful person, as a
9
probable result of the act or omission, considering the interplay of
natural forces and likely human intervention.
Consol. Aluminum, 833 F.2d at 68. Thus, the issue before the Court is whether Plaintiff's exposure
to benzene was a harm of the general sort to a person of a general class that a reasonably
thoughtful owner of a shoreside warehouse facility would have anticipated as a probable result of
its failure to warn,3 in light of anticipated natural forces and likely human intervention. As the
question makes clear, the Court's analysis does not focus on the particular injury suffered, but on
the general risk of exposure to toxic chemicals. Similarly, the Court does not focus on Plaintiff
himself, but on the general class of tankermen. Therefore, the dispositive inquiry in this case is
whether harm resulting from a tankerman's exposure to hazardous chemicals would be anticipated
by a reasonably thoughtful owner of a shoreside warehouse facility as a probable result of its
failure to warn, considering the interplay of natural forces and likely human intervention.
There are multiple layers of "likely human intervention" which affect this analysis. First, as
explained more fully infra, the manufacturer of a toxic chemical is required to provide warnings
and instructions for safe use to the ultimate users of its product. Second, under the federal
regulations cited by GATX, a vessel operator is required to post a document that identifies all
hazardous materials to be handled, warns of hazards in handling the materials, and provides
3
GATX disputes that it failed to provide any warnings to Plaintiff. The Court makes no finding as to
this issue. Rather, the Court merely assumes the factual predicate solely for the purpose of answering the
legal question of whether GATX owed a duty, i.e., whether the harm suffered was a foreseeable
consequence of the allegedly tortious conduct.
10
instructions for safe handling during transfer operations.4 Third, a reasonably thoughtful owner
of a shoreside warehouse facility might anticipate that some combination of the tankerman's
employer, the entity (if any) with whom the tankerman's employer contracted to move the
chemicals, and the vessel owner would apprise the tankerman of the chemicals to be transferred
and any attendant dangers. When viewed in the aggregate, these "likely" forces of human
intervention strongly reduce the possibility that a tankerman would be harmed by exposure to
toxic chemicals due to a failure to warn. This is not to say, however, that a tankerman could never
suffer harm from exposure to toxic chemicals due to inadequate warnings at a shoreside
warehouse facility. The non‐occurrence of all three conditions enumerated above is certainly
possible (albeit highly unlikely). In other words, it is possible that the manufacturer of the toxic
chemicals could fail to warn, that the vessel operator could fail to post the procedures required by
federal regulations, and that the tankerman's employer and/or the vessel operator could fail to
warn the tankerman of the hazard associated with handling certain products. Indeed, this is
precisely what Plaintiff alleges happened in the case sub judice. Nonetheless, as the Fifth Circuit
has emphasized in maritime tort cases, the mere possibility of injury does not create a duty.
4
33 C.F.R. § 155.720 requires "[t]he operator of a vessel with a capacity of 250 or more barrels of
oil, hazardous material, or liquified gas" to establish "transfer procedures" that meet certain requirements.
(emphasis added). Such transfer procedures must be permanently posted where they can be "easily seen
and used by members of the crew when engaged in transfer operations," 33 C.F.R. § 155.740(c), and must
contain a list of each product transferred, 33 C.F.R. § 155.750(a)(1). This list must identify the product
transferred by "general or chemical name," warn "of hazards involved in handling the [product]," and
provide "instructions for safe handling of the [product]." 33 C.F.R. §§ 155.750(a)(1)(ii); 154.310(a)(5)(ii).
11
Rather, the injury must be a probable result of the negligent conduct. See Republic of France v.
United States, 290 F.2d 395, 401 (5th Cir. 1961) ("There must be knowledge of a danger, not merely
possible, but probable."); Consol. Aluminum, 833 F.2d at 68 (finding that harm is not foreseeable
unless it "might have been anticipated by a reasonably thoughtful person . . . as a probable result
of the act or omission"); In re Great Lakes, 624 F.3d at 211 (finding that plaintiffs must demonstrate
that defendants "reasonably should have foreseen that the sequence of events leading to their
damages . . . would be a probable result of [their] negligent acts") (emphasis in original).
Plaintiff argues this Court should derive a duty of care from certain federal regulations
(other than those cited by GATX).5 Specifically, Plaintiff argues that GATX's alleged violation of
these regulations constitutes a breach of duty under the general maritime law.6 But this argument
presupposes its legal predicate—the existence of a duty. Because Plaintiff's damages were not a
probable result of GATX's alleged failure to warn, the Court need not look to positive law to
determine whether GATX breached a duty. See In re Great Lakes, 624 F.3d at 211 n.10 (declining
to address whether violation of federal regulations constituted breach of duty where plaintiffs
failed to prove duty was owed in the first place).
5
In maritime actions, the duty of care may be derived from statutes and regulations. See In re Int'l
Marine, LLC, No. 12–538, 2013 WL 3293677, at *2 (E.D. La. June 28, 2013) (citations omitted); 1 Thomas J.
Schoenbaum, Admiralty and Maritime Law § 5–2 (5th ed. 2012).
6
Plaintiff cites multiple federal regulations, such as 33 C.F.R. § 154, and 33 C.F.R. § 126.
12
II.
Plaintiff's Cross Motion for Summary Judgment as to GATX
The Court has granted GATX's motion for summary judgment. Because no claims remain
against GATX, Plaintiff's cross motion for summary judgment is denied as moot.
III.
Valero's Motion for Summary Judgment
As did GATX, Valero moves for the dismissal of Plaintiff's claims for negligence and products
liability. The Court addresses each claim in turn. For the following reasons, the Motion is denied.
A. Products Liability
As a preliminary matter, Valero contends the Court need not address the merits of Plaintiff's
product liability claim, i.e., whether the product was unreasonably dangerous. Specifically, Valero
argues that it had no "legal duty" to warn Plaintiff. (R. Doc. 197.) That duty, Valero argues, is owed
by Plaintiff's Jones Act employers, by the owner of Plaintiff's vessels (according to the doctrine of
unseaworthiness), and by Plaintiff's vessel operators (according to certain federal regulations).
Valero erroneously conflates the concepts of negligence, unseaworthiness, and strict
products liability. That Plaintiff may have causes of action for negligence or unseaworthiness does
not foreclose recovery against a manufacturer for an allegedly defective product. See Lewis v.
Timco, Inc., 716 F.2d 1425, 1433 (5th Cir. 1983) (Politz, J., dissenting) ("A negligence action focuses
on conduct, specifically the quality of the act causing the injury; a strict products liability action
focuses on the product itself."). Whereas negligence and unseaworthiness actions focus on the
relationship between specific plaintiffs and defendants, "[s]trict products liabilty concerns itself
13
with the relationship between the manufacturer and society as whole." Id. Moreover, the
comments to Section 402A specifically recognize that strict liability is a "special rule" that "does not
preclude liability based upon the alternative ground of negligence." Restatement (Second) of Torts
§ 402A cmt. a.; see also id. at cmt. m ("The liability stated in [Section 402A] does not rest upon
negligence. It is strict liability.") Indeed, plaintiffs often join causes of action for negligence,
unseaworthiness, and products liability in the same suit. See generally Williams v. Brasea, Inc., 497
F.2d 67 (5th Cir. 1974); Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir. 1976); Vickers, 822
F.2d. Finally, Valero cites no authority, nor can this Court find any, to support its argument that
the availability of a Jones Act negligence claim and/or a claim for unseaworthiness precludes a
cause of action for strict products liability as a matter of law.
In order to prevail on a products liability claim under Section 402A, a plaintiff must
establish: (1) that the defendant sold or manufactured the product; (2) that the product was
unreasonably dangerous or defective when it left the defendant's control; and (3) that the defect
caused the plaintiff's injury. See Daigle, 322 F. Supp. 2d at 727; 1 Thomas J. Schoenbaum,
Admiralty and Maritime Law § 5–7 (5th ed. 2012). Valero does not dispute its status as a
manufacturer.
Under Section 402A, a product is defective only if it is "unreasonably dangerous" to the
ultimate user or consumer. Restatement (Second) of Torts § 402A(1). A product may be
unreasonably dangerous due to lack of adequate instructions or warnings. See Reyes v. Wyeth
14
Labs., 498 F.2d 1264, 1273–75 (5th Cir. 1974). Two comments to the Restatement elaborate upon
this theory of liability. Under comment j, a manufacturer must warn of dangers which the
manufacturer either knows or should know at the time the product is sold. Pavlides, 727 F.2d at
338 (interpreting Restatement (Second) of Torts cmt. j); Borel v. Fibreboard Paper Prods. Corp., 493
F.2d 1076, 1088 (5th Cir. 1973) (same). In determining the scope of this duty, "the manufacturer
is held to the knowledge and skill of an expert." See Borel, 493 F.2d at 1089; Pavlides, 727 F.2d at
338 (citation omitted). Comment k recognizes a certain subspecies of products—those which are
"unavoidably unsafe" because they are incapable of being made safe for their ordinary and
intended use. Restatement (Second) of Torts § 402A cmt. k. Comment k clearly applies in the
instant case, because commercial products containing benzene "possess[] both unparalleled utility
and unquestioned danger." Borel, 493 F.2d at 1088.
In general, an unavoidably unsafe product must be accompanied by proper directions and
proper warnings. See Alman Bros. Farms & Feed Mill, Inc. v. Diamond Labs., Inc., 437 F.2d 1295,
1303 (5th Cir. 1971) ("It is well recognized that [under comment k] an adequate warning and
proper instructions must be given to a potential user of the product.") (emphasis added); Davis v.
Wyeth Labs., Inc., 399 F.2d 121, 128–29 (9th Cir. 1968) ("As [comment k] stresses . . . strict liability
is avoided . . . only where sale is accompanied by proper directions and proper warnings.")
15
(emphasis added) (footnote omitted);7 Reyes, 398 F.2d at 1275 ("Failure to give such a warning
[when comment k applies] will itself present a 'defect' in the products and will, without more,
cause the product to be 'unreasonably dangerous as marketed.'") (footnote omitted); Borel, 493
F.2d at 1089 ("[A]s comment k makes clear . . . the seller . . . has a responsibility to inform the user
or consumer of the risk of harm. The failure to give adequate warnings in these circumstances
renders the product unreasonably dangerous."). When the danger associated with a product is
"sufficiently obvious," however, a defendant is relieved of its obligation to warn. See Borel, 493
F.2d at 1093; Hagans v. Oliver Machinery Co., 576 F. 2d 97, 102 (5th Cir. 1978) ("It is generally held
that there is no duty to warn when the danger or potentiality of danger is obvious or is actually
known to the injured person."). A danger is sufficiently obvious when it is "generally known and
recognized" by the ultimate user or consumer writ large. See Jackson v. Coast Paint & Lacquer Co.,
499 F.2d 809, 812 (9th Cir. 1974); Restatement (Second) of Torts § 402A, cmts. j.; i.
Valero argues that the general awareness of the dangers associated with handling benzene
obviated any duty to warn. Consequently, Valero argues, its products were not unreasonably
dangerous under Section 402A. The entirety of Valero's argument consists of a one‐sentence
excerpt from the Fifth Circuit's decision in Martinez v. Dixie Carriers, Inc. Martinez, however, is
distinguishable.
7
The Fifth Circuit has repeatedly cited Davis with approval in failure‐to‐warn cases under Section
402A. See, e.g., Borel, 493 F.2d at 1090; Reyes, 498 F.2d at 1276; Martinez v. Dixie Carriers, Inc., 529 F.2d
457, 466 (5th Cir. 1976).
16
The plaintiff in Martinez died from exposure to noxious fumes after stripping a barge that
had been used to transport Hydrol‐D—a petrochemical mixture containing a substantial
concentration of benzene. 529 F.2d at 460. His surviving spouse filed a wrongful death action
against, inter alia, the manufacturer of Hydrol‐D for negligence and strict product liability. Id. In
assessing both claims, the court found the following facts particularly important: (1) the plaintiff
and his co‐employees were advised prior to stripping the barge that it contained a residue of
"dripolene, the generic name in the industry for a common industrial substance that [the
manufacturer] marketed under the trade name 'Hydrol‐D,'" id.; (2) the barge was equipped with
large permanent signs on the main deck with the words, "Warning, Dangers Cargo, No Visitors, No
smoking, No Open Lights," id. at 462 (internal quotation marks omitted); (3) at the time of loading,
the manufacturer placed a benzene warning card on the barge, in compliance with Coast Guard
regulations,8 id.; (4) the manufacturer only marketed Hydrol‐D to other industrial users for use in
the manufacture of gasoline and did not contemplate that Hydrol‐D would be sold to or used by
the general public, id. at 463; (5) the hazards of handling benzene are generally appreciated in the
maritime industry, id.; and (6) the plaintiff's employer had extensive experience in cleaning
shoreside tanks and employed "experienced professionals," id.
8
As described by the court, "[t]his warning card displayed two red skull and crossbones insignias,
indicated that only properly protected and authorized personnel should be used to effect cargo transfer,
detailed a variety of hazards including the harmfulness of the chemical's vapors, and provided instructions
for handling various possible accident or emergency situations." Martinez, 529 F.2d at 462.
17
With respect to the products liability claim, the issue before the court was whether the
manufacturer's warnings were adequate under Section 402A. See id. at 465–67. Crucially,
Martinez did not address the threshold issue before this Court—whether the manufacturer was
required to provide warnings in the first place.9 Moreover, in holding that the warnings provided
were adequate, the court did not find industry knowledge regarding the hazards of benzene
dispositive.10
This Court finds Borel v. Fibreboard Paper Products Corporation instructive on the
circumstances in which the manufacturer of an inherently dangerous product is obligated to
provide warning under Section 402A.11 The plaintiff in Borel was an industrial insulation worker
who contracted asbestosis and mesothelioma as a result of his exposure to insulation materials
containing asbestos. 493 F.2d at 1081. He filed suit against, inter alia, eleven manufacturers of the
insulation materials alleging negligence, gross negligence, and strict products liability. Id. at 1086.
In his pre‐trial deposition, the plaintiff testified "that he had known for years that inhaling asbestos
9
In fact, by going straight to the issue of whether the warnings provided were adequate, rather than
addressing whether warnings were required in the first place, one could argue that Martinez impliedly held
that Section 402A imposed a duty to warn.
10
The court also focused on the fact that crew members had actual knowledge of the nature of the
barge's cargo, and that it was reasonable for the manufacturer to assume its products would only reach
industry professionals. Martinez, 529 F.2d at 466–67.
11
Although jurisdiction was premised on diversity, Borel applied the Restatement (Second) of Torts
§ 402A as Texas substantive law.
18
was bad for [him] . . . but that he never realized it could cause any serious or terminal illness." Id.
at 1081. At trial, the plaintiff introduced evidence that the defendant manufacturers either were,
or should have been, aware of the many articles and studies on the hazards associated with
absestos. See id. at 1084–86. The evidence also demonstrated, however, that neither the
plaintiff's employer, the plaintiff's co‐workers, nor plaintiff himself was ever warned by a
manufacturer of the danger associated with inhaling asbestos. Id. at 1086. The jury found that all
defendants except for two were negligent but that none had been grossly negligent. Id. The jury
also found that all defendants were strictly liable. Id.
On appeal, the manufacturers challenged, inter alia, the jury's finding that their products
were unreasonably dangerous for failure to provide a warning. Id. at 1093. They argued that the
danger resulting from exposure to asbestos was "obvious." Id. In rejecting this argument, the
court first cited the plaintiff's pre‐trial testimony that he was unaware inhalation of asbestos could
cause serious illness. Id. The court continued: "[f]urthermore, we cannot say that, as a matter of
law, the danger was sufficiently obvious to asbestos installation workers to relieve the defendants
of the duty to warn." Id.
Here, as in Borel, the plaintiff testified that he was unaware of the full extent of the dangers
associated with the allegedly defective product until some point after he had already been
exposed. More importantly, however, the Court cannot conclude on the record before it that the
danger of exposure to products containing benzene was sufficiently obvious to tankermen like
19
Plaintiff as to relieve Valero of its duty to warn. This determination is fact‐intensive and must
therefore be resolved at trial. See Jackson, 499 F.2d at 812 (finding that whether a danger is
sufficiently known as to relieve a defendant of its duty to warn is "an issue for the jury").
Accordingly, summary judgment is denied.
B. Negligent Failure to Warn12
To the extent Valero re‐urges its argument that the availability of a Jones Act negligence
claim or an unseaworthiness claim precludes a cause of action for negligent failure to warn, that
argument is rejected for substantially the same reasons articulated in the previous subpart. Other
than cite the generally recognized rules that the duty to provide a reasonably safe to place work
and the duty to furnish a seaworthy vessel are owed by the Jones Act employer and vessel owner,
respectively, Valero provides little else in support of its argument. In fact, to speak of
unseaworthiness in terms of "duty" is misleading, as the doctrine of unseaworthiness is predicated
without regard to fault or the use of due care. Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir.
1991) (citations omitted). More importantly, Valero provides no authority, nor can this Court find
any, for the proposition that the Jones Act and the doctrine of unseaworthiness morph into a
defense which completely relieves a manufacturer of its duty to warn seamen of a dangerous
12
The Court need not address Plaintiff's argument that the alleged violation of certain federal
regulations establishes Valero's negligence. The Court ruled earlier that owners of shoreside warehouse
facilities such as GATX owe no duty to Plaintiff. That reasoning applies with equal force to Valero in its
capacity as the owner of a shoreside warehouse facility. Accordingly, the only negligence claim remaining
is against Valero in its capacity as manufacturer.
20
product. Adopting Valero's position would be tantamount to declaring that a seaman injured
aboard a vessel by a defective product is per se precluded from bringing a negligent failure to warn
action against the manufacturer. There is simply no support in the jurisprudence for such a
categorical prohibition.
The Court now pauses to consider the extent to which its denial of Valero's request for
summary judgment under Section 402A controls the analysis of the second part of Valero's
Motion—whether Valero can prove that it has no duty to warn under a traditional negligence
analysis. The causes of action for negligence and strict liability are conceptually different. As
explained supra, while the latter focuses on the condition of the product, the former probes the
conduct of the defendant. See also Jackson, 499 F.2d at 812. In failure‐to‐warn cases, however,
"[t]he distinction between the two lessens considerably." Werner v. Upjohn Co., Inc., 628 F.2d 848,
858 (4th Cir. 1980). For example, the Borel court addressed whether a jury's finding of strict
liability for failing to warn of a foreseeable danger is inconsistent with a separate finding that the
same defendants were not negligent in failing to warn of the same danger. See 493 F.2d at
1093–94. The court summarized the law as follows: "when a failure to give adequate warning is
alleged to have made a product unreasonably dangerous, the standard for strict liability is
essentially similar to the standard for establishing negligence." Id. at 1093. Accordingly, the court
21
found the jury's verdict inconsistent.13 Id. at 1094. Subsequent Fifth Circuit decisions have noted
the lack of practical difference between negligence and strict liability in the context of a failure‐to‐
warn claim.14 See, e.g., Gordon v. Niagara Mach. & Tool, 574 F.2d 1182, 1190 (5th Cir. 1978) ("The
two theories of liability, while conceptually different, for all practical purposes, here merge into a
single breach of duty.") (internal footnote omitted); Sprankle v. Bower Ammonia & Chem. Co., 824
F.2d 409, 413–14 (5th Cir. 1987) ("Although conceptually different, the two theories of liability each
present the [same] essential question . . . . The jury's finding [of] strict liability . . . thus cures any
possible error in . . . not submitting [the] negligent failure to warn claim to the jury."). Cf. Hagans,
576 F.2d at 101–04 (noting that liability does not attach under strict liability or negligence when
the danger is open and obvious or the party to be warned has actual knowledge of the danger);
Martinez, 529 F.2d at 463–67 (employing substantially similar analysis when addressing adequacy
of warnings under negligence and strict liability). But when a failure to warn case such as this one
involves an "unavoidably unsafe product" under comment k of Section 402A, "[a]ny remaining
distinction in theories disappears." Werner, 628 F.2d at 858; accord Kehm v. Procter Gamble Mfg.
Co., 724 F.2d 613, 621 (8th Cir. 1983).
Given the foregoing, the Court finds no practical difference in the legal standard to be
13
The court found the inconsistency in the jury's verdict harmless, because there was sufficient
evidence to support liability under Section 402A. Borel, 493 F.2d at 1094.
14
But see Sprankle v. Bower Ammonia & Chem. Co., 824 F.2d 409, 413 n.5 (5th Cir. 1987) (noting
the contrary view that strict liability and negligent failure to warn are distinct causes of action).
22
applied in a failure‐to‐warn case when the product is inherently dangerous, at least with respect
to determining the existence of a duty vel non. Under a negligence or strict liability theory, the
duty to warn does not attach when the danger is open and obvious to the ultimate user or
consumer. See Hagans, 576 F.2d at 104;15 Borel, 493 F.2d at 1093. Thus, the Court's denial of the
first part of Valero's Motion necessarily requires the second part be denied as well.
IV.
Plaintiff's Cross Motion for Summary Judgment as to Valero
Plaintiff moves for summary judgment on various affirmative defenses asserted by Valero.
The parties essentially re‐urge the arguments made in support of and in opposition to Valero's
Motion for Summary Judgment. Thus, much of the Court's previous analysis applies to the instant
Motion.
A. Sixth Defense
Valero's sixth defense is that "it owed no duty to the Plaintiff." This defense, however, is
not an affirmative defense. An affirmative defense is one on which the defendant bears the
burden of proof of trial. See Crescent Towing & Salvage Co., Inc., v. M/V ANAX, 40 F.3d 741, 744
(5th Cir. 1994). The existence of a duty to warn is a prima facie element of the plaintiff's case,
regardless of whether the plaintiff invokes Section 402A or general principles of negligence. As
15
Hagans also states there is no duty to warn if the party to be warned is already aware of the
danger. 576 F.2d at 102, 104 (citations omitted). While this statement is technically correct, it is somewhat
misleading in that it implies the plaintiff bears the burden of proving lack of knowledge. As explained more
fully below, actual knowledge is an affirmative defense.
23
discussed supra, this issue will be decided at trial.
B. Eighth Defense
Valero's Eighth Defense reads as follows:
Alternatively, to the extent that the Plaintiff suffered any
injury, which is denied, such injury was caused by Plaintiff’s own
fault and/or negligence and/or inattention and/or omissions
in the following, but not exclusive, respects:
A. In failing to wear proper personal protective equipment,
gear, and other safety apparel designed to protect against
any alleged exposure to “chemicals and solvents” alleged to
be harmful;
B. In failing to properly care for the above‐mentioned
protective equipment;
C. In failing to follow instructions pertaining to protection
against exposure to "chemicals and solvents" alleged to be
harmful;
D. In failing to take proper precautions against the exposure
to “chemicals and solvents” alleged to be harmful;
E. In failing to exercise due care under the circumstances;
and,
F. Any and all other negligent or wrongful acts or omissions
that may be discovered or proven at the trial of this matter.
Plaintiff repeatedly characterizes this defense in his Motion as "failure to follow
instructions." Thus, Plaintiff only moves for summary judgment on Part C of the Eighth Defense.
Unfortunately, because Plaintiff largely rehashes word‐for‐word arguments made in his opposition
memorandum to Valero's Motion, he does not address directly why the entry summary judgment
is appropriate as to this particular defense. Plaintiff's argument appears to be that since Valero
provided no warnings, there were no "instructions" for Plaintiff to ignore in the first place.
24
In response to Plaintiff's Motion, Valero employed the same tactic as Plaintiff, namely, to
copy and paste arguments from memoranda associated with a different motion. Nonetheless,
Valero has identified evidence in the record that creates a genuine factual dispute as to whether
warnings were provided at Valero's dockside facilities. Accordingly, summary judgment on this
affirmative defense is denied.
C. Thirteenth Defense
Valero's Thirteenth Defense is that the chemicals and solvents at issue in this case
"presented no unreasonable risk of harm." Again, this is not an affirmative defense—Plaintiff bears
the burden of proving a product defect. The existence of an alleged defect for failure to warn will
be decided at trial, as discussed supra.
D. Fourteenth Defense
Valero's Fourteenth Defense reads as follows:
Alternatively, and on information and belief, the "chemicals and
solvents" at issue in this case were at all pertinent times
manufactured and distributed in a manner consistent with, and in
compliance with, the known and existing technology and knowledge
comprising the state of the manufacturers’ art, and in keeping with
all federal and state regulations.
Plaintiff focuses on only part of this allegedly affirmative defense—that the chemicals and solvents
were manufactured and distributed in compliance with federal and state regulations.16 Once again,
16
Plaintiff does not address the so‐called "state‐of‐the‐art" defense. Moreover, the Court has
serious doubts as to whether this defense applies in a failure‐to‐warn case under the general maritime law.
25
the Court doubts whether this is really an affirmative defense. The violation of a statute goes more
towards establishing an element of Plaintiff's claim, namely, whether Defendant breached a duty
of care. Nonetheless, as discussed supra, Valero has raised a triable issue as to whether it complied
with certain federal regulations governing dockside facilities. Accordingly, summary judgment on
this defense is denied.
E. Fifteenth Defense
Valero's Fifteenth Defense reads as follows:
Alternatively, and on information and belief, the Plaintiff and
Plaintiff’s employers were at all pertinent times sophisticated
handlers of the "chemicals and solvents" at issue in this case, who
knew or should have known of the risks inherent in the use and
handling of those"chemicals and solvents," and to whom Valero
owed no duty to warn.
Valero appears to assert two separate affirmative defenses here: (1) that Plaintiff had actual
knowledge of the hazards associated with handling Valero's products; and (2) that Plaintiff's
employers were "learned intermediaries." Plaintiff's Motion does not address the latter defense
whatsoever. Indeed, Plaintiff does not even mention his employers by name, much less discuss
whether they were learned intermediaries upon whom Defendant may rely to provide warnings.17
"Actual knowledge" is indeed an affirmative defense. See Pavlides, 727 F.2d at 340 ("Where
a plaintiff has made out a prima facie case of 'failure to warn' of a hazard, the manufacturer may
17
The Court expresses no opinion as to the applicability of the learned intermediary defense in this
case.
26
assert as an affirmative defense that the user already had actual knowledge of that specific risk.");
see also Restatement (Second) of Torts § 402A cmt. n ("If the user or consumer . . . is aware of the
danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it,
he is barred from recovery."). Plaintiff has introduced deposition testimony tending to establish
that he was unaware of the hazards associated with handling benzene until well after he began his
career as a tankerman. Defendant points to nothing in the record to controvert this evidence.18
Accordingly, summary judgment on this issue is granted and Valero is precluded from asserting the
affirmative defense of actual knowledge.
CONCLUSION
For the reasons previously stated, GATX's Motion for Summary Judgment is GRANTED and
Plaintiff's cross Motion for Summary Judgment DENIED AS MOOT. No claims remain against GATX.
Accordingly, GATX is dismissed from this suit.
Valero's Motion for Summary Judgment is DENIED. Genuine issues of material fact are
present as to whether Valero's products were defective. Plaintiff's cross Motion for Summary
Judgment is GRANTED IN PART. Valero is precluded from asserting the affirmative defense of
actual knowledge.
18
A general allegation that Plaintiff or others should have known of the danger is clearly not
sufficient.
27
New Orleans, Louisiana, this 4th day of October, 2013.
______________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
28
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