Clark v PHI, Inc et al
Filing
118
ORDER AND REASONS denying 81 Motion for Summary Judgment. Signed by Judge Helen G. Berrigan on 10/2/2013. (kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FERRIS CLARK SR.,
CIVIL ACTION
VERSUS
NO. 12-411
PHI, INC., BELL HELICOPTER TEXTRON
INC. and ALLIANZ GLOBAL
CORPORATE & SPECIALTY AG
SECTION: C (5)
ORDER AND REASONS
This matter comes before the Court on motion for summary judgment filed by
defendants, PHI, Inc. and Allianz Global and Specialty AG, (collectively ʺPHIʺ), the
owner and operator of the helicopter involved in the accident made the subject of this
litigation. Rec. Doc. 81. Having reviewed the record, the memoranda of counsel and
the law, the Court rules as follows.
I. Factual Background and Procedural History
The plaintiff brought suit against defendants for injuries sustained during an
accident on March 24, 2011 that occurred when PHIʹs helicopter attempted to take off
from an oil platform in the Gulf of Mexico that was owned and operated by Defendant
Energy XXI. The parties do not dispute the basic facts of the accident. When PHIʹs pilot
lifted off northward, in the direction of the platformʹs compressors and venting boom,
the helicopterʹs engine compressor stalled after and due to ingesting gas that was being
released from the platform. After the helicopter cleared the platform, there was a loud
bang, and the helicopter descended. The helicopterʹs pilot engaged a flight system or
process known as ʺautorotationʺ and activated the vehicleʹs flotation device. The
helicopter landed in the water and inverted, submerging the plaintiff underwater.
In his complaint, the plaintiff seeks damages from PHI for alleged negligence of
itself and its pilot in the use, maintenance, and operation of the helicopter at issue,
including the pilotʹs decision to take flight northward in the direction of the platformʹs
compressor and venting boom. The plaintiff has also alleged that Energy XXI
negligently vented gas from the platformʹs venting boom, failed to inspect the
platformʹs equipment, and failed to warn the platformʹs helipad users of the hazardous
gas conditions on the platform.
II.
Standard of Review
Summary judgment is appropriate where ʺthe pleadings, deposition, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.ʺ Fed. R. Civ. P. 56(c). Regardless of whether it bears the
burden of proof at trial, the party seeking summary judgment ʺbears the initial
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responsibility of informing the district court of the basis for its motion, and identifying
those portions of ʹ[discovery], together with the affidavits, if any,ʹ which it believes
demonstrate the absence of a genuine issue of material fact.ʺ Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the initial burden is satisfied, the nonmoving party must
ʺdesignate specific facts showing there is a genuine issue for trialʺ using evidence
cognizable under Rule 56. Id. at 324. Material facts are those which ʺmight affect the
outcome of the suit under the governing law.ʺ Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
III.
Analysis
In the instant motion, PHI argues that summary judgment is appropriate as to
three isues: (A) whether Energy XXI was negligent in failing to warn PHI and its pilot
regarding the intentional or known venting of gas; (B) whether Energy XXIʹs negligence
supersedes any negligence by PHI in inspecting, servicing, or operating its helicopter;
and (C) whether PHIʹs pilotʹs decision to fly over the north side of the platform was
negligent. For the reasons that follow, this Court denies summary judgment on all three
issues.
(A) Energy XXIʹs Negligence
To establish the negligence of any party under maritime law, one must
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ʺdemonstrate that there was a duty owed by [the party to another], breach of that duty,
injury sustained by [the other], and a causal connection between the [the partyʹs]
conduct and [the otherʹs] injury.ʹ ʺ In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201,
211 (5th Cir. 2010). Under maritime law, parties generally owe a duty of ordinary care
to one another. Id. Although the existence of a duty is a question of law, the
determination that a particular duty bound a party to a particular course of action is a
fact‐bound inquiry; it must be based on findings of facts regarding the circumstances
surrounding the alleged negligent acts or omissions, as well as the injury sustained. See
Nunley v. M/V Dauntless Colocotronis, 727 F.2d 455, 463 (5th Cir. 1984) (breach of duty
ʺmust take into account consideration all of the relevant circumstances and is a finding
of fact to be made by the district court in the first instanceʺ); Daigle v. Point Landing, Inc.,
616 F.2d 825, 827 (5th Cir. 1980) (ʺA determination of the reasonableness of [one partyʹs]
failure to warn [another] requires an examination of all the circumstances surrounding
the injury.ʺ); id. (ʺThe degree of care necessary to constitute the ordinary care required
of a person upon any particular occasion is measured by reference to the circumstances
of danger and risk known to such person at the time. Conduct which will be
considered extremely careful under one condition of knowledge, and one state of
circumstances, may be grossly negligent with different knowledge and in changed
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circumstances.ʺ) (citing 57 Am.Jur.2d Negligence § 72 (1971), at 423).
The duty to warn urged in this summary judgment brief depends on PHIʹs
contention that Energy XXI was knowingly performing maintenance on its compressor
which required the release of methane gas without issuing any warning to PHIʹs pilot.1
PHI points to the testimony of its expert, Douglas Stimpson, who claims that the
venting of Methane was a necessary part of ongoing repairs to the number 1
compressor on the platform at the time of takeoff. Rec. Doc. 81‐5, 4. However, Energy
XXIʹs foreman, Jerry Lott, and lead compressor operator, David Martin, both directly
dispute the notion that the number 1 compressor was under repair or that it was being
serviced in a way that would result in abnormal venting. Rec. Docs. 100‐6, 100‐7. Even if
they had not so declared, PHIʹs motion would still fail on this issue. In asserting that
compressor maintenance was an undisputed cause of the methane at issue in this case,
PHI only points to expert testimony summarizing the statements of Energy XXI
employees. The Court may not consider hearsay imbedded in declarations and
affidavits to dispose of a motion for summary judgment. Martin v. John W. Stone Oil
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The Court confines itself to the argument actually raised by PHI in its motion for summary
judgment, i.e., that failing to issue warnings was negligent specifically because venting of methane was
intentional at the time it occurred. It does not consider the argument that Energy XXIʹs failure to install a
warning system that illuminates whenever venting occurs is negligent, even if the venting is, as Energy
XXI claims, unpredictable and incidental to normal functioning. This latter argument has not been raised
in the summary judgment brief.
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Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Thus, PHI fails to introduce any
competent evidence that the Energy XXI intentionally vented methane and the motion
for summary judgment must fail on this issue.
(B) Superseding Cause/Negligence
PHI contends that insofar as Energy XXI is found to be negligent for failing to
warn regarding the venting of gas, the latterʹs negligence would necessarily supersede
any of formerʹs negligence prior to its pilotʹs takeoff, including faulty maintenance of its
helicopter or training of its pilot. Notably, PHI does not, by this argument, challenge the
plaintiffʹs ability to prove by competent evidence that it behaved negligently in some
way before Energy XXI negligently failed to issue warnings regarding the venting of
gas. The oppositions filed by Energy XXI and the plaintiff have not responded to this
particular argument, focusing instead on the negligence of PHIʹs pilot in navigating the
helicopter.
Superseding negligence will absolve prior negligence in a maritime case only
when the prior actor could not have ʺreasonably anticipatedʺ the negligence of the
subsequent actor. Nunley, 727 F.2d at 467. Embracing the wisdom of the Restatement
(Second) of Torts, the Fifth Circuit has set forth several criteria for determining whether
external force should be deemed intervening or superseding. Id. at 464‐465. Of
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particular relevance to this motion, is the courtʹs statement:
The fact that an intervening act of a third person is negligent in itself or is
done in a negligent manner does not make it a superseding cause of harm
to another which the actorʹs negligent conduct is a substantial factor in
bringing about, if
(a) the actor at the time of his negligent conduct should have realized that
a third person might so act, or
(b) a reasonable man knowing the situation existing when the act of the
third person was done would not regard it as highly extraordinary that
the third person had so acted, or
(c) the intervening act is a normal consequence of a situation created by
the actorʹs conduct and the manner in which it is done is not
extraordinarily negligent.
Id.
Thus, the Courtʹs determination of whether PHI should have foreseen the alleged
negligence of Energy XXI in its platform design or maintenance when it was
maintaining its own helicopter or training its pilot depends in part on the nature of
Energy XXIʹs negligent act or omission and whether it was ʺhighly extraordinary.ʺ As
the analysis above demonstrates, material issues of fact surrounding Energy XXIʹs
negligence are genuinely in dispute. Given the breadth of acts and omissions by PHI
alleged by the plaintiffs to have negligently preceded Energy XXIʹs venting, and the
active dispute regarding the circumstances of the venting and the extent to which a
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warning was feasible, the Court declines to embrace as a matter of law the abstract
proposition that any negligence by PHI before the flight in question was superseded by
Energy XXIʹs failure to warn, even if proven negligent.
(C) PHIʹs Pilotʹs Negligence
Lastly, PHI argues that there is no evidence that its pilot was negligent after the
helicopter took flight. The plaintiff has alleged that PHIʹs pilot breached a duty of care
to avoid the flight path it chose off of the vessel. PHI counters that its pilot had no such
duty because he did not and could not know that the platform was actually venting gas
from the proximity of the boom vent and the compressors. However, this argument
ignores the fact that a duty may arise not only from its pilotʹs awareness of venting but
also from his awareness of the risk of venting. Pilots have a duty to avoid such hazards
that they could or should be able to perceive. See Black v. United States, 441 F.2d 741, 744
(5th Cir. 1971). The plaintiff has come forward with evidence tending to establish the
pilotʹs awareness of this risk, in particular, the deposition testimony of the pilot and
PHIʹs chief pilot to the effect that the pilot received training regarding the risks of
venting, and the resultant need to avoid the compressors and venting boom in the flight
path. Rec. Docs. 99‐2, 99‐6. PHIʹs chief pilot also discussed a company practice of
issuing alerts to pilots regarding the locations of venting booms and compressors on
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platforms. Rec. Doc. 99‐6, p. 86. The hazard in this case is not the gas itself, which may
be odorless and undetectable, but the venting boom and compressor from which the gas
emanates. Therefore, this argument cannot be sustained.
The plaintiff has also alleged that PHIʹs pilot breached a duty of care to properly
analyze the helicopterʹs gauges and instruments before engaging the autorotation
systems. Intellistart data gathered from the flight data recorder confirms that a
compressor stall caused the helicopter to descend initially. Rec. Doc. 99‐5. The pilot
testified in his deposition that he did not diagnose the source of the helicopterʹs descent
as a compressor stall, Rec. Doc. 99‐2, p. 47, and further engaged autorotation based on
his perception that the engine had ʺceased to produce power.ʺ Rec. Doc. 99‐2, p. 102.
PHIʹs chief pilot testified that several gauges can be used to determine whether an
engine is losing power. Rec. Doc. 99‐6, p. 35. The pilot testified that he only noted a rise
in a single instrument gauge, torque, before deciding to enter autorotation. Rec. Doc.
99‐2, p. 19. He also confirmed, per one of his companyʹs safety alerts, that high or erratic
torque was a common symptom of an engine out and a compressor stall. Id. The
foregoing provides sufficient basis for the plaintiff to argue that the pilotʹs actions were
negligent.
The plaintiff finally complains that PHIʹs pilot incorrectly executed autorotation
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by failing to roll off the throttle when lowering the collective pitch control. The chief
pilot testified in his deposition that he believed the pilot executed this maneuver
incorrectly and that as a result the helicopter rolled after contact with the water. Rec.
Doc. 99‐6, p. 50. Breach of the pilotʹs training can be thus inferred.
IV. Conclusion
Accordingly, IT IS ORDERED that PHIʹs motion for summary judgment is
DENIED. Rec. Doc. 81.
New Orleans, Louisiana, this 2nd day of October, 2013.
________________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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