Robinson et al v. Blanchard Contractors, Inc.
Filing
83
ORDER AND REASONS denying defendant Instrumentation & Electrical Technologies, LLC's 47 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown on 6/25/12. (tbl)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARVIN ROBERTSON, SR.
CIVIL ACTION
VERSUS
NO. 11-1453
BLANCHARD CONTRACTORS, INC., et al.
SECTION: “G”(3)
ORDER AND REASONS
Before the Court is Defendant Instrumentation & Electrical Technologies, LLC’s (“I&E”)
Motion for Summary Judgment,1 in which I&E contends that there is no genuine issue of material
fact that I&E owed Plaintiff Marvin Robertson, Sr. (“Plaintiff”) a duty of care sufficient to support
Plaintiff’s negligence action. Having considered the motion, the response, the record, and the
applicable law, for the following reasons, the Court will deny the motion.
I. Background
A. Factual and Procedural Background
This case arises from an alleged accident that occurred on July 17, 2010 on a fixed platform
in Ship Shoal 208H in the Gulf of Mexico on the Outer Continental Shelf adjacent to Louisiana,
where Plaintiff was working as a scaffold builder on a platform owned by Hilcorp Energy, GOM,
LLC (“Hilcorp”). Hilcorp had engaged several companies for various tasks on the platform; one of
those companies was Blanchard Contractors, Inc. (“Blanchard”), which had in turn subcontracted
with Gulf South Scaffolding, Inc. (“Gulf South”) for the construction and daily safety inspections
1
Rec. Doc. 47.
1
of scaffolding aboard the platform. At all relevant times, Plaintiff was employed by Gulf South.
Regarding the incident in question, Plaintiff alleges that, while walking aboard a lower deck
of scaffolding after retrieving his supervisor’s carpenter’s level, he tripped over a piece of stainless
steel tubing that had become wedged between scaffolding boards. According to Plaintiff and the
safety supervisor for the project, the only construction crew on the platform utilizing the type of
tubing that Plaintiff described as causing his accident was the construction crew employed by I&E.
Also according to Plaintiff, immediately prior to the accident, an I&E construction crew was welding
and fabricating stainless steel tubing on the deck of the platform immediately above the scaffolding
boards from which Plaintiff fell and injured himself. Plaintiff alleges that the I&E construction crew
allowed tubing to fall through the grating to land on the level below and that I&E employees had not
laid plywood over the grating to prevent such fall-through.
Plaintiff filed suit in the 17th Judicial District Court for the Parish of Lafourche, State of
Louisiana, against Blanchard, alleging negligence for failing to warn of the tubing and failing to
maintain a safe work area.2 On the basis of federal question jurisdiction under the Outer Continental
Shelf Lands Act,3 Blanchard removed the suit to this Court.4 By his First Supplemental and
Amending Complaint of July 18, 2011, Plaintiff added I&E and others as additional defendants and
alleged defendants’ concurrent negligence.5
Additionally, Plaintiff’s employer, Gulf South,
intervened to recover workers’ compensation benefits paid to Plaintiff pursuant to the Longshore and
2
Petition for Damages, Rec. Doc. 1-1.
3
43 U.S.C. § 1333 et seq.
4
Rec. Doc. 1.
5
Rec. Doc. 13.
2
Harbor Worker’s Compensation Act.6
B. The Pending Motion
On February 23, 2012, I&E filed the instant motion for summary judgment, contending that
there is no genuine issue of material fact that I&E owed Plaintiff a duty of care sufficient to support
Plaintiff’s negligence action because Plaintiff “has testified that his employer, specifically his
supervisor, was tasked with maintaining the safety of the scaffolding area.”7 I&E asserts that
Plaintiff has alleged I&E’s liability with “nothing more than pure speculation,”8 and that I&E cannot
be held liable because it did not owe Plaintiff a duty to maintain the scaffold area in a safe and nonhazardous condition.9 I&E does not specifically address the other necessary elements of a negligence
claim under Louisiana law, instead noting that “[s]ince Robertson cannot prove that I&E owed him
a legal duty, the plaintiff cannot fulfill all of the elements of a negligence cause of action against
I&E.”10 In support, I&E directs the Court to Plaintiff’s deposition testimony, where Plaintiff testified
that his supervisor and his employer were hired to maintain the safety of the scaffolding.11
Plaintiff filed his response in opposition on April 4, 2012.12 Therein, Plaintiff asserts that
6
Rec. Doc. 22.
7
Rec. Doc. 47-1 at p. 3 (citing Robertson Deposition, Exhibit A, Pg. 50, Lns. 1-25; Pg. 51, Lns. 1-10).
8
Id. at p. 4.
9
Id. at pp. 6, 7 (“As one of several contractors working on the platform, I&E had no responsibility for the
maintenance and upkeep of the scaffold.”)
10
Id. at p. 6.
11
Id. at pp. 6-7.
12
Rec. Doc. 63.
3
I&E “clearly owed a duty to Marvin Robertson, and everyone else on the platform, to conduct [its]
work activities in a reasonable, safe manner” and points out that, by arguing that no duty existed
simply because someone else was charged with maintaining the safety of the scaffolding, I&E’s
motion “ignores the duty imposed on every individual by [Louisiana’s general negligence statute,]
Louisiana Civil Code Article 2315.”13 Specifically, Plaintiff argues that I&E had a duty to conduct
its own work in a way that did not subject others to an unreasonable risk of harm.14 Plaintiff notes
that whether I&E breached this duty and whether that breach caused Plaintiff’s injuries are questions
of fact to be resolved at trial but that Louisiana Civil Code Article 2315 clearly sets forth a general
duty that Plaintiff argues is applicable here.15 Thus, Plaintiff contends that this Court must deny
I&E’s motion for summary judgment because I&E’s negligent actions in not ensuring that debris did
not fall through created an unreasonable risk in violation of I&E’s general duty of care under the
Louisiana Civil Code.16
II. Law and Analysis
A. Standard on Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery and disclosure materials
on file, and any affidavits show that “there is no genuine issue as to any material fact and that the
13
Id. at p. 1.
14
Id. at pp. 5-6.
15
Id. at p. 6.
16
Id.
4
movant is entitled to judgment as a matter of law.”17 When assessing whether a dispute as to any
material fact exists, the court considers “all of the evidence in the record but refrains from making
credibility determinations or weighing the evidence.”18 All reasonable inferences are drawn in favor
of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or
conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for
summary judgment.”19 If the record, as a whole, could not lead a rational trier of fact to find for the
non-moving party, then no genuine issue of fact exists and the moving party is entitled to judgment
as a matter of law.20
As here, if the dispositive issue is one on which the nonmoving party will bear the burden
of proof at trial, the moving party may satisfy its summary judgment burden merely by pointing out
that the evidence in the record is insufficient with respect to an essential element of the nonmoving
party’s claim.21 At that time, the burden shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a genuine issue exists.22 The nonmoving
party may not rest upon the pleadings, but must identify specific facts that establish a genuine issue
for trial.23
17
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
18
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
19
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
20
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
21
See Celotex, 477 U.S. at 325.
22
See id. at 324.
23
See, e.g., id. at 325; Little, 37 F.3d at 1075; Isquith ex rel. Isquith v. Middle South Utils., Inc., 847 F.2d
186, 198 (5th Cir. 1988), cert. denied, 488 U.S. 926 (1988).
5
B. Choice of Law
When a cause of action arises on a fixed platform located on the Outer Continental Shelf,
under the Outer Continental Shelf Lands Act, a court applies the law of the state adjacent to the
controversy to the extent that it is not inconsistent with other federal laws and regulations.24
Plaintiff’s complaint alleges that his injury occurred while he was working on a block on the Outer
Continental Shelf that is adjacent to Louisiana. The parties have not cited, and the Court has not
found, any reason that applying Louisiana negligence principles would be inconsistent with other
federal laws and regulations. Therefore, the Court will apply Louisiana law here.
C. Negligence Under Louisiana Civil Code Article 2315
Under article 2315 of the Louisiana Civil Code, “[e]very act whatever of man that causes
damage to another obliges him by whose fault it happened to repair it.”25 That is, “where
circumstances create a duty to do so, the defendant must use reasonable care so as to avoid injuring
another person.”26 Therefore, all individuals have a duty “to avoid acts and omissions which
engender an unreasonable risk of harm to others”27 and “[t]he parameters of what constitutes fault
24
43 U.S.C. § 1333(a)(2)(A); Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 355 (1969); see also
Dickerson v. Continental Oil Co., 449 F.2d 1209, 1213 (5th Cir. 1971) (noting that fixed platforms on the Outer
Continental shelf are artificial islands to be treated as “federal enclaves within a state” and are governed by the Outer
Continental Shelf Lands Act) (citing Rodrigue, 395 U.S. 352).
25
La. C.C. art. 2315.
26
Tardo v. Autozone Stores, Inc., No. 10-3642, 2011 W L 4345064, at * 2 (E.D. La. Sept. 15, 2011)
(Feldman, J.).
27
Stephens v. State Through Dep’t of Transp. & Dev., 440 So.2d 920, 925 (La. App. 2 Cir. 1983), writ
denied, 443 So.3d 1119 (La. 1984); see also Seals v. Morris, 410 So.2d 715, 718 (La. 1981) (“In all cases, duty can
be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like
circumstances.”) (citations omitted).
6
in Louisiana reach far and wide in order to hold people accountable for their harmful actions
regardless of whether or not their actions are covered by a [specific] statutory provision.”28
To determine whether to impose liability under this general negligence statute, Louisiana
courts conduct a duty-risk analysis.29 To establish liability, five elements must be proven: (1) the
defendant owed a duty to conform his conduct to a specific standard (duty element); (2) the
defendant’s conduct failed to conform to the appropriate standard (breach element); (3) the
defendant’s substandard conduct caused the plaintiff’s injuries (cause-in-fact element); (4) the
defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (scope of liability or
scope of protection element); and (5) the plaintiff suffered damages as a result (damages element).30
Although the questions of breach and causation are fact-driven inquiries typically left to the
fact-finder,31 the question of whether a duty is owed, as well as the scope of that duty, is a question
of law.32 Summary judgment is proper “only where no duty exists as a matter of law and no factual
or credibility disputes exist.”33
Here, I&E argues that it owed Plaintiff no duty because I&E was not tasked with maintaining
the safety of the scaffolding. However, by this argument, I&E fails to consider that this is not the
28
Bethea v. Modern Biomedical Servs., Inc., 704 So.2d 1227, 1233 (La. App. 3 Cir. 1997), writ denied,
709 So.2d 760 (La. 1998).
29
Lemann v. Essen Lane Daquiris, Inc., 923 So.2d 627, 632-33 (La. 2006).
30
Westchester Fire Ins. Co. v. Haspel-Kansas Inv. P’ship, 342 F.3d 416, 419 (5th Cir. 2003) (citing
Pinsonneault v. Merchants & Farmers Bank & Trust Co., 816 So.2d 270, 275-76 (La. 2002)); Lemann, 923 So.2d at
633.
31
Brewer v. J.B. Hunt Transp., Inc., 35 So.3d 230, 240 (La. 2010); Bridgefield Cas. Ins. Co. v. J.E.S., Inc.,
29 So.3d 570, 574-575 (La. App. 1 Cir. 2009).
32
Ellison v. Conoco, Inc., 950 F.2d 1196, 1196 (5th Cir. 1992); Brewer, 35 So.3d at 240.
33
Parish v. L.M. Daigle Oil Co., 742 So.2d 18, 25 (La. App. 3 Cir. 1999).
7
duty that Plaintiff has alleged I&E violated. Instead, Plaintiff contends that I&E had a duty under
the Louisiana general negligence statute to conduct its work in a reasonably safe manner, which
Plaintiff alleges was violated when I&E created an unreasonable risk of harm by failing to lay boards
to prevent fall-through of debris. On this motion for summary judgment, the Court must take the
facts in the light most favorable to Plaintiff, who has provided sworn testimony as evidence that I&E
workers were working directly overhead of Plaintiff at the time of the incident and that I&E was the
only company working with the type of tubing that Plaintiff alleges caused his accident. Assuming
these facts as true for the purpose of this motion, it is not implausible that I&E workers were
working in the area at the time of the incident, such that under the Louisiana Civil Code, they would
have had a duty to conduct their work in a reasonably safe manner so as to “avoid acts and omissions
which engender an unreasonable risk of harm to others.”34
To this end, Plaintiff has presented evidence that it would be unreasonable not to lay boards
to prevent fall-through of debris. However, this Court need not consider whether there was a breach
of I&E’s duty; neither party has sought summary judgment as to the other elements of a negligence
claim, and the question of breach is a factual one to be left to the fact-finder, here the jury.35
Likewise, the Court need not consider whether any breach of such duty caused the accident in
question. Instead, this Court here is presented only with the question of whether there existed a duty
owed by I&E to Plaintiff, and the Court finds as a matter of law that, under Louisiana Civil Code
article 2315, I&E had a duty to perform its work in a reasonably safe manner.
34
Stephens, 440 So.2d at 925.
35
Defendants have demanded a jury.
8
III. Conclusion
Under Louisiana law, the question of whether a duty exists is a question of law properly
decided by the court. Louisiana law provides for a general duty, and Plaintiff has put forth evidence
to demonstrate that I&E was working in the area at the time of the incident. Therefore, this Court
determines that I&E had a duty to conduct its work in a reasonably safe manner, and Plaintiff will
be allowed to present evidence to determine if this duty was breached and if any such breach was
negligent. I&E has not carried its summary judgment burden to demonstrate that there is no disputed
issue of material fact regarding Plaintiff’s negligence claim because I&E has only argued that it owed
no duty to Plaintiff, and this Court finds that it did. Accordingly,
IT IS HEREBY ORDERED that I&E’s Motion for Summary Judgment36 is DENIED.
NEW ORLEANS, LOUISIANA, this 25th day of June, 2012.
____
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
36
Rec. Doc. 47.
9
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