Theard v. Ankor Energy, LLC
Filing
40
ORDER & REASONS granting 24 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 4/23/2012. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEITH THEARD
CIVIL ACTION
VERSUS
NO: 11-2293
ANKOR ENERGY, LLC
SECTION: R
ORDER AND REASONS
Before the Court is defendant Ankor Energy’s motion for
summary judgment. Finding no genuine factual issues in dispute
that necessitate a trial, the Court grants Ankor’s motion.
I.
BACKGROUND
Plaintiff Keith Theard was injured when a multi-stationed
weight training machine called the “Cal Gym” fell on top of him
while he was using the machine. The equipment consisted of a
metal frame supporting four stacks of weights totaling 730
pounds, and various pulleys and cables used to lift the weights.
At the time of the accident, it was located in a workout room on
Ankor’s offshore platform. Ankor purchased the platform in 2008
from another company, and the Cal Gym was included with the
purchase. Plaintiff, an employee of Trinity Catering, Inc., sued
Ankor on August 2, 2011, asserting claims under La. C.C. art.
2315 and 2317.1. Defendant now moves for summary judgment.1
Plaintiff opposes the motion.2
II.
STANDARD
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 movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). 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.” Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). 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.” Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)
(internal quotation marks omitted).
1
R. Doc. 24.
2
R. Doc. 29.
2
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence [that] would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991). The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
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 burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324. The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. Id. at
325. See also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the
entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
3
that party’s case, and on which that party will bear the burden
of proof at trial.’”) (citing Celotex, 477 U.S. at 332).
III. DISCUSSION
A.
Choice of Law
The Outer Continental Shelf Lands Act, 43 U.S.C. § 1333, et
seq., applies to this dispute because plaintiff was injured on a
fixed platform located on the Outer Continental Shelf, off the
Louisiana coast. The OCSLA directs the Court to apply the law of
the state adjacent to the controversy to the extent that it is
not inconsistent with other federal laws and regulations. See 43
U.S.C. § 1333(a)(2)(A); Rodrigue v. Aetna Cas. and Sur. Co., 395
U.S. 352, 355 (1969). The parties have not cited, and the Court
has not found, any federal law that conflicts with the Louisiana
custodial liability and negligence principles that apply here.
Accordingly, the Court applies Louisiana law to this dispute.
B.
Custodial Liability Under Civil Code Article 2317.1
Theard asserts that Ankor Energy is liable under a theory of
custodial liability under Louisiana Civil Code Article 2317, et
seq., which imposes liability for damage “caused by the act of
persons for whom we are answerable, or of the things which we
have in our custody.” La. C.C. art. 2317. In 1996, the Louisiana
legislature adopted Article 2317.1, which eliminated Article
4
2317's imposition of strict liability and provided that “the
owner or custodian of a thing is answerable for damage occasioned
by its ruin, vice, or defect, only upon a showing that he knew
or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage.” La. C.C. art.
2317.1. See also Coulter v. Texaco, Inc., 117 F.3d 909, 913 n.8
(5th Cir. 1997) (recognizing the change in the law); Hughes v.
Pogo Producing Co., 2009 U.S. Dist. LEXIS 10805, at *20-21 n.4
(W.D. La. 2009) (noting that Louisiana courts construe the
requirement of actual or constructive knowledge to have
eliminated most instances of strict liability).
In order to prevail on a custodial liability claim, a
plaintiff must demonstrate: “(1) the object was in the
defendant’s custody; (2) the thing contained a vice or defect
which presented an unreasonable risk of harm to others; (3) the
defective condition caused the damage; and (4) the defendant knew
or should have known of the defect.” Cormier v. Dolgencorp, Inc.,
136 Fed. Appx. 627, 627-28 (5th Cir. 2005) (citing La. C.C. arts.
2317 and 2317.1). Thus, “the mere showing that a defect existed
which caused injury will be insufficient to carry the burden of
proof.” Girard v. Brandt Energy Envtl., 2008 U.S. Dist. LEXIS
122573, at *12 n.5 (W.D. La. 2008) (citing Webre v. Alton Ocshner
Med. Found. Hosp., 759 So. 2d 146, 149 (La. App. 5th Cir. 2000)).
5
In this case, plaintiff contends that defendant had
knowledge of a defect in the Cal Gym because it knew that this
exercise equipment was not anchored to the floor and/or wall,
which would have prevented the Cal Gym from falling over.3 Ankor,
while admitting that it knew the Cal Gym was not anchored,
disagrees with plaintiff’s characterization of the knowledge
requirement. It contends instead that liability does not attach
unless plaintiff shows that Ankor knew or should have known of
the dangerous condition itself, namely, that the Cal Gym had a
propensity to tip over because it was not anchored.4 The Court
finds the latter construction to be the correct one. When the
Louisiana legislature adopted Article 2317.1, it eliminated
Article 2317's imposition of strict liability upon the custodians
of defective products and replaced it with a negligence
requirement. See, e.g., Burmaster v. Plaquemines Parish Gov't,
982 So. 2d 795, 799 (La. 2008) (“[W]ith its adoption of [Article
2317.1] to require knowledge or constructive knowledge, the
Legislature effectively eliminated strict liability under Article
2317, turning it into a negligence claim.”) (internal quotation
marks omitted); Broussard v. Voorhies, 970 So. 2d 1038, 1042 (La.
App. 1st Cir. 2007) (noting that liability under Article 2317.1
is "predicated upon a finding of negligence"). Under Theard’s
3
R. Doc. 29 at 12.
4
R. Doc. 37 at 10.
6
reading, however, Ankor would be liable simply by virtue of its
knowledge of a particular aspect of the exercise equipment (that
the Cal Gym was not anchored to the floor), rather than its
knowledge that the condition posed a risk of harm (that the Cal
Gym risked tipping over without proper anchoring). For the Court
to read the knowledge requirement as Theard does would be to
reimpose the outdated strict liability standard and hold Ankor
responsible, even absent any fault on its part. The Court will
not do so.
Theard stresses next that even under Ankor’s construction of
the 2317.1 standard, Ankor had constructive knowledge of the
defect. “The concept of constructive knowledge under La. C.C.
art. 2317.1 imposes a reasonable duty to discover apparent
defects in the thing in the defendant's garde or legal custody.”
Broussard, 970 So. 2d at 1045 (emphasis added) (citing Johnson v.
Entergy Corp., 827 So. 2d 1234, 1238 (La. App. 2nd Cir. 2002)).
Here, plaintiff has not offered admissible evidence raising an
issue of fact that the absence of anchoring was an apparent
defect about which Ankor should have known.5 Indeed, Ankor’s
5
The only proffered evidence supporting plaintiff’s
argument is that after Theard’s accident, Ankor anchored the Cal
Gym to the floor. Federal Rule of Evidence 407 states that
evidence of subsequent remedial measures is not admissible to
prove negligence, culpable conduct, a defect in a product or its
design, or a need for a warning or instruction. But, a court “may
admit this evidence for another purpose, such as impeachment or if disputed - proving ownership, control, or the feasibility of
precautionary measures.” Fed. R. Evid. 407 (emphasis added). In
7
industry expert found no evidence that the machine was intended
by the manufacturer to be anchored,6 nor did plaintiff offer any
such evidence.7 In fact, plaintiff even testified that in his
experience, similar equipment typically is not secured to the
floor.8 Further, the record evidence indicates that the Cal Gym
was regularly used, yet never caused problems.9 Theard himself
testified that he used the Cal Gym 3-4 times per week for almost
a year without incident and without fear that it would tip
over.10 Both the platform superintendent and the safety manager
testified that no incidents concerning improper functioning of
the Cal Gym were reported before Theard’s accident.11 Given this
regularity of use, lack of earlier incidents, and lack of
evidence that the machine was designed to be anchored, the Court
this case, there is no dispute as to any issue that would render
the evidence admissible; Ankor admits ownership of the Cal Gym,
control of the same, and the feasibility of anchoring it to the
floor. See, e.g., Rutledge v. Harley-Davidson Motor Co., 364 Fed.
Appx. 103, 106 (5th Cir. 2010) (upholding district court’s grant
of summary judgment when recall notices, inadmissible under Rule
407, were the only evidence offered to establish the existence of
a defect).
6
R. Doc. 24-8 at 4.
7
R. Doc. 24-5 at 3, 7-8.
8
Id. at 7-8.
9
R. Doc. 24-5 at 5-6; 24-7 at 10.
10
R. Doc. 24-5 at 3-6.
11
R. Doc. 24-9; 24-10.
8
finds as a matter of law that Ankor did not have constructive
knowledge of a defect with the Cal Gym. See Cormier, 136 Fed.
Appx. at 628 (plaintiff failed to demonstrate that owner had
actual or constructive knowledge of hazardous condition when
plaintiff “produced no documentation of previous accidents, nor
did she introduce any affidavit or deposition testimony of store
employees that they knew a defect existed, nor did she acquire
any other evidence that may have demonstrated constructive or
actual knowledge”); Shuff v. Brookshire Grocery Co., 32 So. 3d
1030, 1033 (La. App. 2d Cir. 2010) (finding constructive
knowledge “unprovable,” given that (1) no employee had direct
knowledge of a problem with a defective child seat belt strap in
a grocery cart, and (2) the snap properly functioned immediately
before the accident when plaintiff placed her child in the
harness); Lotridge v. Abril, 3 So. 3d 84, 90 (La. App. 4th Cir.
2008) (finding no constructive knowledge of a corroded toilet
flushing mechanism when plaintiffs failed to submit any evidence
that the defendant knew, was warned, or had any reason to suspect
a problem with the toilet before the incident).
Theard analogizes this case to Borel v. Chevron U.S.A.,
Inc., 2009 U.S. Dist. LEXIS 131050 (E.D. La. 2009), in which the
plaintiff survived summary judgment. There, the plaintiff was
injured after falling off a ladder leading up to a bunk bed. She
argued that the ladder was unreasonably dangerous because it was
9
too wide, the rungs lacked non-stick coating, and there were no
railings. Id., at *15. Although he noted that plaintiff’s case
was “problematic,” Judge Feldman nevertheless denied summary
judgment, citing outstanding issues of material fact. Id., at
*16. In that case, however, whether the defendant knew or should
have known of the alleged defect was never discussed by the
Court; indeed, it was never listed as an element of plaintiff’s
case. See id., at *13 (requiring that plaintiff show only “that
the defendant had custody of the thing causing the injury, that
the thing contained a defect, that is, a condition creating an
unreasonable risk of harm and that the defective condition caused
plaintiff's injury”) (internal quotation marks omitted). Here,
however, defendant has moved for summary judgment based, in part,
on plaintiff’s failure to demonstrate that defendant had actual
or constructive knowledge of an alleged defect - an element of
plaintiff’s claim. Because plaintiff has failed to set forth a
genuine issue of fact on this issue, defendant is entitled to
summary judgment under Article 2317.1.
C.
Negligence Under Article 2315
Plaintiff also asserts claims under Louisiana’s general
negligence statute, La. C.C. art. 2315. Louisiana courts conduct
a duty-risk analysis to determine whether to impose liability
under Article 2315. Lemann v. Essen Lane Daiquiris, Inc., 923 So.
10
2d 627, 632-633 (La. 2006). Liability requires satisfaction of
five elements: (1) the defendant had a duty to conform his
conduct to a specific standard (the duty element); (2) the
defendant's conduct failed to conform to the appropriate standard
(the breach element); (3) the defendant's substandard conduct was
a cause in fact of the plaintiff's injuries (the cause-in-fact
element); (4) the defendant's substandard conduct was a legal
cause of the plaintiff's injuries (the scope of liability or
scope of protection element); and (5) actual damages (the damages
element). Id. at 633.
The parties agree that Ankor owed Theard a duty of care;
they disagree whether Ankor breached that duty. Although breach
is a question of fact, see Monson v. Travelers Prop. & Cas. Ins.
Co., 955 So. 2d 758, 761 (La. App. 5th Cir. 2007) (citing Mundy
v. Dept. of Health and Human Res., 620 So. 2d 811 (La. 1993)),
plaintiff’s only evidence that Ankor indeed breached its duty is
the testimony of Ankor’s field foreman and its safety manager
indicating that the Cal Gym was not anchored at the time of
Theard’s accident.12 Absent from the record, however, is any
indication that the Cal Gym should have been anchored. Ankor's
industry expert found no evidence that the machine was designed
to be secured to the floor, nor did plaintiff offer any such
12
R. Doc. 29-1; 29-2.
11
evidence.13 Further, there was evidence that the equipment was in
regular use for a substantial period of time without any previous
incidents of tipping over. Finally, Ankor’s expert testified that
the Cal Gym’s weight stacks alone totaled 730 pounds, and that
the machine weighed at least 900-1000 pounds in total.14 The
expert opined that under normal use, the machine would not tip
over.15 Plaintiff’s bald assertion that it was “reasonably
foreseeable that gym equipment that is not anchored down could
fall over when someone pulls down on it”16 simply is not
supported by the evidence. Summary judgment is appropriate.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s
motion for summary judgment.
New Orleans, Louisiana, this 23rd day of April, 2012.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
13
See Part B, supra.
14
R. Doc. 24-8 at 4.
15
Id.
16
R. Doc. 29 at 12.
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?