Barnes v. Energy Resource Technology Gom, Inc.

Filing 34

ORDER AND REASONS denying 13 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 12/30/2013. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHANG BARNES

CIVIL ACTION

VERSUS

NO: 12-2751

ENERGY RESOURCE TECHNOLOGY GOM, INC.

SECTION: R

ORDER AND REASONS
Defendant moves for summary judgment on plaintiff's
negligence claims. Because the Court finds that genuine disputed
issues of material fact remain in this case, the Court DENIES
defendant's motion.
I.

BACKGROUND
This lawsuit arises out of injuries allegedly suffered by

plaintiff Shang Barnes on July 23, 2012, while he was performing
sandblasting work on a platform owned by defendant Energy
Resource Technology GOM, Inc.1 At the time of the incident,
plaintiff was employed by Danos & Curole Marine Contractors,
which the parties agree was an independent contractor of ERT.
Plaintiff alleges that ERT's platform had uneven or loose
grating that shifted under plaintiff's feet, causing him to fall
backward.2 In his deposition, plaintiff elaborated on the
circumstances surrounding the accident. He explained that he

1

R. Doc. 1 at 2.

2

Id.

placed a ladder on top of the grating in order to assist a
coworker in getting down from a high position.3 According to
plaintiff, the grating was in "good shape" as far as he could
tell at the time,4 and did not wobble while plaintiff was
positioning the ladder.5 Plaintiff set up the ladder, "shook" it
to make sure it was stable,6 and then put his weight on the
bottom step.7 He then "felt a shift in the grating and . . .
fell."8 Plaintiff allegedly suffered serious injuries to his
lower back and neck as a result of the accident.9
Plaintiff asserts that ERT was negligent and that the
condition of the platform was unsafe, and thus that ERT is liable
for his injuries.10 ERT has moved for summary judgment on two
grounds. First, it contends that it cannot be held liable for
plaintiff's injuries because plaintiff's employer, Danos, was an

3

R. Doc. 23-2 at 3-4, 7.

4

Id. at 4; see also id. at 17 ("Q: And as far as you
knew the platform was in good shape. Correct? A: To my
recollection. Q: Okay. You're not aware of any hazards that were
associated with the platform? A: No sir, I'm not.").
5

Id. at 35-36.

6

Id. at 27.

7

Id. at 6.

8

Id.

9

R. Doc. 1 at 3.

10

Id. at 2.
2

independent contractor of ERT. Second, ERT argues that any danger
presented by the grating was open and obvious and hence that ERT
had no duty to warn him about or otherwise protect him from the
danger. In deciding this motion, the Court limits its analysis to
these two issues.

II.

LEGAL STANDARD
Summary judgment is warranted when "the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." 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). When assessing whether a dispute as to any material fact
exists, the Court considers "all of the evidence in the record
but refrain[s] from making credibility determinations or weighing
the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398–99 (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); see
also Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the movant must present
3

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, 1264–65 (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 movant 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. See, e.g., id. at 324;
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 that party's
case, and on which that party will bear the burden of proof at
trial.'" (quoting Celotex, 477 U.S. at 322)).

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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.11 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. & 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
negligence and custodial liability principles that apply here.
Accordingly, the Court applies Louisiana law to this dispute.

B.

Defendant's Arguments for Summary Judgment
1.

Independent Contractor

ERT contends that it cannot be held liable for plaintiff's
injuries because plaintiff's employer, Danos, was working as an
independent contractor for ERT. It is true that, under Louisiana
law, a principal generally is not liable for any negligent acts
committed by the principal's independent contractor in the course
of performing its contractual duties. See, e.g., Coulter v.

11

See R. Doc. 1 at 2.
5

Texaco, 117 F.3d 909, 911-12 (5th Cir. 1997). Plaintiff does not
dispute this proposition and indeed disclaims any intent to hold
defendant liable for the negligence of Danos. Instead, plaintiff
asserts that ERT is liable "for its own negligence and premises
liability."12 Thus, defendant's first argument, while correct as
far as it goes, does not resolve this dispute. The Court must
still consider whether ERT itself was negligent. See Graham v.
Amoco Oil Co., 21 F.3d 643, 645 (5th Cir. 1994) ("[E]ven though
the general rule shields a principal from the acts of its
independent contractor . . ., the principal remains liable for
its own acts of negligence.").
2.

"Open and Obvious"

Plaintiff's complaint does not refer to any specific theory
of negligence or section of the Louisiana Civil Code. Plaintiff's
opposition to defendant's motion for summary judgment makes
clear, however, that his claim rests on a theory of custodial or
premises liability.13
Article 2317.1 of the Louisiana Civil Code describes the
standard for custodial liability. It provides in relevant part:
The owner or custodian of a thing is answerable for
damage occasioned by its ruin, vice, or defect, only upon
a showing he knew or, in the exercise of reasonable care,
should have known of the ruin, vice, or defect which

12

R. Doc. 23 at 3.

13

See id.
6

caused the damage, that the damage could have been
prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care.
La. Civ. Code art. 2317.1.
In the past, custodians were strictly liable under Louisiana
law for injuries caused by things in their custody. In 1996,
however, the state legislature amended the Civil Code to impose a
negligence standard. Coulter, 117 F.3d at 913 & n.8. Today, in
order to prevail on a custodial liability claim, a plaintiff must
demonstrate "that (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 F. App'x
627, 627-28 (5th Cir. 2005) (citing La. Civ. Code. arts. 2317,
2317.1).
In determining whether a defect presents an unreasonable
risk of harm, courts should inquire whether the defect is "open
and obvious to all who encounter it." Broussard v. State ex rel.
Office of State Blgs., 113 So.3d 175, 183-85 (La. 2013). If the
defect is open and obvious, it is unlikely to be deemed
unreasonably dangerous, because "the probability of injury is low
and the thing's utility may outweigh the risks caused by its
defective condition." Id. at 184. The question of whether a given
hazard is "open and obvious" is generally one for the trier of
7

fact. Id. at 184-85.
ERT argues that the risk facing plaintiff was open and
obvious because plaintiff had signed a "Job Safety Analysis
Review Form" explaining workplace safety14 and had attended a
safety meeting at which topics such as "working safe," "keeping
mind on job," and "slip, trip, and falls" were discussed.15 ERT
also contends that plaintiff knew that setting up a ladder on the
grating of an offshore platform was dangerous.16
The Court does not find ERT's arguments persuasive. Assuming
that there was a defect in the grating that made it unstable, a
reasonable jury could find that the defect was not open and
obvious to plaintiff. Barnes testified in his deposition that the
grating was in "good shape as far as [he] could tell,"17 and that
the areas of the grating he stood on did not shift.18 Barnes
"shook" the ladder "[t]o make sure it was stable" before he
mounted it.19 According to Barnes, he had no indication that the
grating was unstable until he put his weight on the ladder, heard

14

R. Doc. 13-10.

15

R. Doc. 13-9.

16

R. Doc. 13-1 at 15-16.

17

R. Doc. 23-2 at 4; see also id. at 17 ("Q: Okay. You're
not aware of any hazards that were associated with the platform?
A: No, sir, I'm not."); id. at 21-22.
18

Id. at 23-24, 35-36.

19

Id. at 27.
8

the grating "pop[]"20 and felt it shift, and fell.21 Thus, based
on Barnes' testimony, the alleged defect in the grating was not
only not obvious, it was hidden -- or at least a reasonable juror
could so conclude. See Moore v. AEP Memco LLC, No. 07-1353, 2008
WL 3187972, at *3 (E.D. La. Aug. 5, 2008) (finding that issues of
material fact existed regarding whether risk posed by defective
steel covers was open and obvious because there was testimony in
the record suggesting that "it was impossible to tell initially
that the covers were defective"); cf. Warren v. Kenny, 64 So.23d
841, 849 (La. Ct. App. 2011) (holding that danger posed by a
ladder leading up to a second-floor balcony was not open and
obvious because the plaintiff was not "on notice" that the
balcony railing was poorly secured and could come loose if
plaintiff tried to climb over or under it). True, plaintiff had
participated in general safety training, and he knew that he
should be careful when climbing a ladder, but there is no
evidence that his training taught him that this specific area of
grating was unstable or otherwise defective. Further, the
photographs that defendant submitted with its reply brief do not
compel a different result. The Court could disregard them
entirely, since they were clearly available two months earlier
when defendant filed its initial motion and are mentioned for the

20

Id. at 37.

21

Id. at 6.
9

first time in defendant's reply. See Benefit Recovery, Inc. v.
Donelon, 521 F.3d 326, 329 (5th Cir. 2008) ("[A]rguments cannot
be raised for the first time in a reply brief."); Cooper v. Faith
Shipping, No. 06-892, 2008 WL 2082890, at *4 (E.D. La. Nov. 25,
2008) (same). Regardless, that defendant has countervailing
evidence does not eliminate the factual dispute raised by
plaintiff's testimony.
In sum, the Court finds that genuine issues of material fact
exist regarding whether the alleged defect in the grating was
open and obvious. The Court therefore denies defendant's motion
for summary judgment.

IV.

CONCLUSION
For the foregoing reasons, the Court DENIES defendant's

motion for summary judgment.

30th

New Orleans, Louisiana, this

day of December, 2013.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

10