Landerman v. Tarpon Operating and Development, LLC et al

Filing 103

ORDER AND REASONS granting 65 Motion for Summary Judgment; granting 66 Motion for Summary Judgment and dismisses Landerman's claims against Tarpon and Nabors. Signed by Chief Judge Sarah S. Vance on 2/4/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JERRY LANDERMAN

CIVIL ACTION

VERSUS

NO: 14-381

TARPON OPERATING AND
DEVELOPMENT, L.L.C., ET AL.

SECTION: R

ORDER AND REASONS
Defendants Tarpon Operating and Development, L.L.C.1 and
Nabors Offshore Corporation2 move for summary judgment.

For the

following reasons, the Court grants the motions.

I.

BACKGROUND
On May 20, 2013, Jerry Landerman, a welder on an off-shore

platform in the Gulf of Mexico, was injured while being
transferred from the platform, where he worked, to the support
vessel that provided his transportation and lodging.

On January

15, 2014, in Louisiana state court, Landerman sued six defendants
for their alleged involvement in the transfer accident:
(1) Tarpon Operating and Development, LLC; (2) Shamrock Energy
Solutions, LLC; (3) Nabors Offshore Corporation; (4) Rene
Offshore, LLC; (5) Pan Ocean Energy Services, LLC; and
(6) Hoplite Safety, LLC.3

Shortly thereafter, defendants removed

1

R. Doc. 66.

2

R. Doc. 65.

3

R. Doc. 1-1 at 2-3.

the suit to this Court.4

Landerman moved to remand.

The Court

denied the motion to remand except as to Landerman's Jones Act
claim, which the Court severed and remanded.5
The facts surrounding the accident, as alleged in
Landerman's complaint, are as follows.

In May 2013, Landerman

worked for Pan Ocean as a welder/cutter on the West Cameron 661
"A" Platform, an offshore platform in the Gulf of Mexico on the
Outer Continental Shelf.6

Although Landerman worked on the

platform, he lived on an offshore supply vessel, the M/V RENE.7
On May 20, 2013, a crane operator on the platform tried to
transfer Landerman from the platform to the RENE.8

For the

transfer, Landerman entered a personnel basket suspended from the
crane.

When the operator tried to transfer the basket to the

vessel, instead of landing it cleanly on the bare deck, he landed
it on a pile of equipment on the deck, causing the basket to tip
over and Landerman to fall out.9
Landerman.

The fall seriously injured

He blames the accident on the unseaworthiness of the

RENE and the negligence of all defendants.10
4

See id. at 5-9.

5

R. Doc. 20.

6

R. Doc. 1-1 at 3.

7

Id.

8

Id.

9

Id. at 3, 5-6.

10

Id. at 4-5.
2

He seeks damages

for lost wages and diminished earning capacity, medical expenses,
pain and suffering, disability, "loss of household services,"
loss of enjoyment of life, and "permanent disfigurement," as well
as maintenance and cure.11
The following summarizes the relationships between the
parties.

At the time of Landerman's accident, Hoplite provided

Tarpon with "safety services to assist in the efforts to explore,
develop and produce minerals in the Gulf of Mexico," including
safety consultation services on the West Cameron 661 "A"
platform.12

The platform belonged to Tarpon.13

Tarpon hired

Shamrock, an independent subcontractor, to run all of the
operations on the platform.14

Much of the activity on the

platform centered on the construction of a rig, which was owned
by Nabors.15

Landerman worked as a fitter and welder for Pan

Ocean,16 a subcontractor of Nabors.

Rene Offshore owned the

RENE.

11

Id. at 5-6.

12

R. Doc. 89-1.

13

R. Doc. 65-5 at 74 (Landerman Deposition at 74).

14

R. Doc. 65-9 at 125 (Campbell Deposition at 125).

15

R. Doc. 65-5 at 69 (Landerman Deposition at 69).

16

R. Doc. 65-5 at 74 (Landerman Deposition at 74).
3

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 moving party "must
come forward with evidence which 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 evidence sufficient to demonstrate the
existence of a genuine dispute of material fact, or "showing that
4

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.

See,

e.g., id.; 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)).

III. DISCUSSION
A.

Tarpon's Motion for Summary Judgment

In deciding Landerman's earlier motion to remand, the Court
held that it has jurisdiction over this case under the Outer
Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq.

5

The Act

establishes a body of law that applies to various activities
occurring beyond the territorial waters of the states on the
seabed, subsoil, and fixed structures on the outer Continental
Shelf.

43 U.S.C. § 1333(a)(1); Rodrigue v. Aetna Cas. & Sur.

Co., 395 U.S. 352, 355 (1969).

It directs the Court to apply the

law of the state adjacent to the controversy to the extent not
inconsistent with other federal laws and regulations.
U.S.C. § 1333(a)(2)(A); Rodrigue, 395 U.S. at 355.

See 43

No party has

cited, nor has the Court found, any conflict between federal law
and the applicable Louisiana law, so the Court applies Louisiana
law to Landerman's claims against Tarpon.

The two relevant

provisions of Louisiana law are: (1) the general negligence
provision, Civil Code Article 2315, and (2) the custodial
liability provisions, Civil Code Articles 2317 and 2317.1.
1.

General Liability Under Article 2315

Article 2315 provides that "[e]very act whatever of man that
causes damage to another obliges him by whose fault it happened
to repair it."

La. Civ. Code art. 2315.

A principal cannot be

liable for injuries resulting from the negligent acts of an
independent contractor "unless (1) the liability arises from
ultrahazardous activities performed by the contractor on behalf
of the principal or (2) the principal retains operational control
over the contractor's acts or expressly or impliedly authorizes
those acts."

Coulter v. Texaco, Inc., 117 F.3d 909, 912 (5th

Cir. 1997) (citing Graham v. Amoco Oil Co., 21 F.3d 643, 645 (5th
6

Cir. 1994).

But a principal remains liable for its own acts of

negligence.

Graham, 21 F.3d at 645.

Louisiana courts conduct a duty-risk analysis to determine
whether to impose tort liability under Article 2315.

Lemann v.

Essen Lane Daiquiris, Inc., 923 So. 2d 627, 632-633 (La. 2006).
Under the duty-risk analysis, a plaintiff must prove each of five
elements: (1) the defendant had a duty to conform his conduct to
a specific standard of care (the duty element); (2) the
defendant's conduct failed to conform to the appropriate standard
of care (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-duty
element); and (5) actual damages (the damages element).

S.J. v.

Lafayette Parish Sch. Bd., 41 So. 3d 1119, 1125 (La. 2010); see
also Knight v. Kellogg Brown & Root Inc., 333 F. App'x 1, 6 (5th
Cir. 2009) (applying Louisiana law).
Thus for Landerman to prevail on his negligence claim
against Tarpon, he must be able to prove, among other things,
causation.

The only causation argument Landerman makes in his

opposition to Tarpon's motion is that the "crane and/or condition
of the platform contribute[d] to causing the accident."17
the evidence put forward by Landerman does not support the

17

R. Doc. 87-1.
7

But

inference that anything about the crane caused the accident, and
Landerman puts forward no evidence about the platform.
Landerman's best--indeed, his only--causation argument about the
crane is that the grating area around the base of the crane was
wider than would be ideal, and that this design sometimes created
a visual obstruction for the crane operator, who had to look
through the grating to see what he was doing.

Landerman submits

the deposition testimony of Mike Richards, a crane operator for
Nabors, who testified that the "walk-around was built too wide"
and that "it was something of an obstacle" for the operator
"[l]ooking through the grating."18

Landerman also submits

deposition testimony by Cles Courvell, the Hoplite Safety
Representative.

Courvell testified that when looking through the

grating, "[t]he boat was visible, it's just the vision was
distorted" and agreed that "the primary obstruction was the
grating itself."19

Finally, Landerman submits deposition

testimony from Stephen Campbell, the Shamrock crane operator who
operated the crane the night of the accident.

Campbell testified

that after Landerman's accident, the platform stopped doing
transfers at night, because there was "more chance of more

18

R. Doc. 87-2 at 3 (Richards Deposition at 50).

19

R. Doc. 87-3 at 2 (Courvell Deposition at 81).
8

incidents," which he agreed was in part because "you couldn't see
as well."20
Even if the Court credits this testimony as true and assumes
that there was some "distortion" or "obstruction" created by the
grating, Landerman has submitted no evidence to support the
conclusion that this distortion or obstruction contributed to his
accident.

Indeed, Richards, who testified that the grating was

"built too wide," went on to testify that "[w]e talked about it a
little bit here and there, you know, but there was no big issues
on it."21

Likewise, Campbell, who testified that "you couldn't

see as well" during night transfers also testified that "with the
boat lights," seeing through the grating "didn't seem that
hard."22

Thus, Landerman has not demonstrated that an issue of

material fact exists as to causation.

His negligence claim

against Tarpon must be dismissed.
2.

Custodial Liability Under Articles 2317 and 2317.1

Next, Tarpon argues that no genuine issue of material fact
exists as to its custodial liability under Louisiana Civil Code
Article 2317 and 2317.1, because it was not in custody of the
platform or crane when the injury occurred, and because there is
no evidence that any defect in the crane caused the accident.

20

R. Doc. 65-9 at 144 (Campbell Deposition at 144).

21

R. Doc. 66-9 at 51 (Richards Deposition at 51).

22

R. Doc. 65-9 at 145 (Campbell Deposition at 145).
9

Article 2317 provides that "[w]e are responsible, not only
for the damage occasioned by our own act, but for that which is
caused by the act of persons for whom we are answerable, or of
the things which we have in our custody."

Before 1996,

custodians were strictly liable under Louisiana law for injuries
caused by things in their custody.

Accordingly, to recover under

article 2317, a plaintiff had to establish only three elements:
"(1) the thing causing his damage was in the custody of the
defendant; (2) the thing had a 'defect' or a condition creating
an unreasonable risk of harm; and (3) the defective condition
caused plaintiff's injuries."

Hebert v. Sw. La. Elec. Membership

Corp., 667 So. 2d 1148, 1157 (La. Ct. App. 1995) (citing Oster v.
Dep't of Transp. & Dev., 582 So. 2d 1285 (La. 1991)).

In 1996,

the Louisiana 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 under article
2317, a plaintiff must prove a fourth element as well: that "the
defendant knew or should have known of the defect" that caused
the plaintiff's injuries.

Cormier v. Dolgencorp, Inc., 136 F.

App'x 627, 627–28 (5th Cir. 2005) (citing La. Civ. Code. arts.
2317, 2317.1).
Thus, for Landerman to prevail on his custodial liability
claim, he must be able to prove, among other things, causation.
For the reasons that Landerman's negligence claim fails on
causation, his custodial liability claim fails on causation as
10

well.

Thus, his custodial liability claim against Tarpon must be

dismissed.

11

B.

Nabors's Motion for Summary Judgment

The parties do not dispute that Louisiana law, through the
Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq.,
also applies to the dispute between Landerman and Nabors.

The

two relevant provisions of Louisiana law are: (1) the general
negligence provision, Civil Code Article 2315, and (2) the
custodial liability provisions, Civil Code Articles 2317 and
2317.1.
1.

General Liability Under Article 2315

Nabors asserts that it should receive summary judgment on
Landerman's negligence claim because Landerman cannot prove that
Nabors owed Landerman a duty of care, or that any action or
omission by Nabors caused his injuries.

Under a duty-risk

analysis, absent a defendant owing a duty to the plaintiff, there
can be no actionable negligence and therefore no liability.
Lemann, 923 So. 2d at 632-633.

Whether a defendant owes a duty

to another presents a question of law.
659.

Lazard, 859 So. 2d at

The relevant inquiry is "whether the plaintiff has any law

(statutory, jurisprudential, or arising from general principles
of fault) to support his claim."

Audler, 519 F.3d at 249.

(citing Faucheaux, 615 So. 2d at 292).

"Whether a legal duty is

owed by one party to another depends on the facts and
circumstances of the case and the relationship of the parties.
In all cases, duty can be stated generally as the obligation to

12

conform to the standard of conduct of a reasonable man under like
circumstances."

Seals v. Morris, 410 So. 2d 715, 718 (La. 1981).

Landerman's opposition to Nabors's motion identifies only
one alleged duty that Nabors allegedly owed Landerman: the duty
"not to allow transfers to occur until the [Nabors rig] equipment
was moved" from the deck of the M/V RENE.23

But Landerman cites

no law--and the Court has uncovered none--that indicates that
Nabors had a specific duty to direct the placement or storage of
its rig equipment in a particular way, or that it owed Landerman
a duty to stop the transfer under the facts presented here.
Nabors did not employ Landerman; Pan Ocean did.

Nabors had no

direct authority over Pan Ocean employees, including Landerman.24
Nabors also had no authority to decide when or how basket
transfers would occur.25

In light of Nabors's lack of control

over Landerman and lack of authority regarding basket transfer
decisions, the Court concludes that Nabors did not have a duty,
under the circumstances, to stop the transfer.
In his opposition, Landerman makes a confusing argument that
Nabors may be liable to him in tort on the basis of the Longshore
and Harbor Workers Compensation Act, 33 U.S.C. § 901, et seq.
The Court need not explore all of the problems with this argument

23

R. Doc. 88.

24

R. Doc. 65-5 at 82 (Landerman Deposition at 82).

25

Id. at 107 (Landerman Deposition at 107).
13

because the Court has already severed and remanded Landerman's
Jones Act claim to state court.

Thus, Landerman's worker

compensation claim is not before this Court.

Even if the state

court decides that Landerman is not a Jones Act seaman and that
therefore the Harbor Workers Act applies to his workers
compensation claim, that claim will remain before the state
court.

Because Landerman's workers compensation claim is not

before this Court, this argument fails.

Nabors is entitled to

summary judgment on Landerman's claim under article 2315.
2.

Custodial Liability Under Articles 2317 and 2317.1

Next, Nabors argues that no genuine issue of material fact
exists as to its custodial liability under Louisiana Civil Code
Article 2317 and 2317.1, because there is no evidence that any
defect in the crane caused the accident.

The Court agrees.

Landerman has identified no "defect" in the rig that "creat[ed]
an unreasonable risk of harm."

Hebert, 667 So. 2d at 1157.

Thus, Landerman's claim against Nabors under Louisiana custodial
liability law fails as a matter of law.

IV.

CONCLUSION
For the foregoing reasons, the Court grants Tarpon's and

Nabors's motions and dismisses Landerman's claims against Tarpon
and Nabors.
New Orleans, Louisiana, this 4th day of February, 2015.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
14