Mueller v. Bollinger Shipyards, Inc. et al

Filing 31

ORDER & REASONS denying 20 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 7/22/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

THOMAS MUELLER

CIVIL ACTION

v.

NO. 14-1172

BOLLINGER SHIPYARDS, INC., ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is a motion by the defendants, for summary
judgment. For the reasons that follow, the motion is DENIED.
Background
This personal injury lawsuit arises from Thomas Mueller’s
claim that he slipped and fell while inspecting a vessel owned by
Bollinger. Mueller sued Bollinger Shipyards, Inc. and Bollinger
Marine

Operations,

L.L.C.

claiming

that

the

defendants

were

negligent in allowing Mueller to use the port exterior stairway
before a non-skid surface was applied.
As part of the Newton Creek Project, the City of New York,
contracted with Bollinger to construct three motor barges, one of
which was Hull 573, the HUNTS POINT. The City provided the plans
and specifications for the construction of the barges and the City
retained the right to inspect, schedule, approve, or reject any
phase

of

construction.

specifications,

and

The

City

drawings

for

furnished
the

barges,

representative present to oversee compliance.
1

the

blueprints,
and

had

a

Thomas Mueller started working for the City as a seaman in
1984 and was promoted to mate in 1986. He was then promoted to
second mate in 1987 and obtained his Master’s license in 1992. In
2007 he was then promoted to the position he held at the time of
the

accident,

Captain

and

Environmental,

Health

and

Safety

Coordinator. His position is shoreside and includes going aboard
vessels

and

inspecting

them

for

correct

paperwork,

crane

inspections and monthly safety gear inspections.
In 2013, Mueller traveled to Bollinger’s yard in Amelia, Louisiana
to inspect the HUNTS POINT.
On October 1, 2013, Mueller was holding a notebook and his
raincoat as he was descending the port exterior stairway of the
HUNTS POINT;

Mueller’s left foot slipped forward and off a stair

tread, and he began to fall. Mueller contends that as he tried to
stop his fall with his right arm, his arm failed, and his left leg
became lodged between the stair treads. He stood up and tried to
continue down the stairway, but his left leg failed to function and
he fell to the bottom of the stairway. As a result, Mueller
suffered severe injuries requiring several surgeries.1 Mueller was
aware that the stairs were wet and that the non-skid material had
not been applied. Mueller had previously walked through the stairs

1

Mueller alleges the fall resulted in injuries to his upper
extremity, right shoulder, left leg, left knee joint and
connective tissues joints and nerves. Defendant points out that
Mueller has an extensive history of knee problems starting when
he was 15 or 16 years old.
2

in question that same day without incident.
On May 22, 2014 Mueller sued Bollinger Shipyards, Inc. and
Bollinger Marine Fabricators, L.L.C. under La. Civ. C. Art. 2317.1.
By allowing access to the stairway, which lacked paint, coating, or
non-skid substance allegedly required to make the steps safe for
use, Mueller contends Bollinger Shipyards, Inc. and Bollinger
Marine Fabricators, L.L.C. were negligent. The defendants now move
for summary judgment.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine dispute of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See id.

Summary judgment is also proper if the party

opposing the motion fails to establish an essential element of his
case.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

3

In this regard, the non-moving party must do more than simply deny
the allegations raised by the moving party.

See Donaghey v. Ocean

Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
Rather, he must come forward with competent evidence, such as
affidavits or depositions, to buttress his claim.

Hearsay

Id.

evidence and unsworn documents that cannot be presented in a form
that would be admissible in evidence at trial do not qualify as
competent opposing evidence. Martin v. John W. Stone Oil Distrib.,
Inc., 819 F.2d 547, 549 (5th Cir. 1987); FED. R. CIV. P. 56(c)(2).
Finally, in evaluating the summary judgment motion, the Court must
read the facts in the light most favorable to the non-moving party.
Anderson, 477 U.S. at 255.
II.
Both Bollinger companies contend that they are entitled to
judgment as a matter of law because: (1) the stairs were not
dangerous

but

were

wet,

which

was

an

obvious

and

apparent

condition; and (2) the true cause of plaintiff’s injuries was his
own negligence in descending wet stairs, knowing he had weakened
knees, with his hands occupied.

Alternatively, the defendants

contend they are immune from liability because they built the
stairs according to specifications provided by the City of New
York. The Court addresses each of these arguments in turn.
A. Whether the stairs were defective
To prove liability against the custodian of a defective thing

4

under La. C. C. art. 2317.12, the plaintiff must prove that:(1) the
thing that caused the injury was in the custody of the defendant;
(2) there was a vice or defect which created an unreasonable risk
of harm; (3) the defendant should have known of the unreasonable
risk of harm; and (4) the vice or defect caused the damage or the
injury. Latimer v. Chet Morrison Contractors, 2014 U.S. Dist. LEXIS
75631, *11 (W.D. La. May 30, 2014) (citations omitted). Defendants
contend that the stairs were not defective because they were being
built according to U.S. Coast Guard Regulations and were incomplete
at the time, a fact of which plaintiff was aware. Defendants also
submit that the stairs were not defective but, rather, they were
wet: an obvious and open condition for which defendants owed no
duty to the plaintiff. The plaintiff counters that even if the wet
condition of the stairs was open and obvious, a genuine dispute of
material fact exists as to whether the lack of coating constituted
a vice or a defect that created an unreasonable risk of harm.

2

La. C. C. Art. 2317.1 states:
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,
that the damage could have been prevented by the
exercise of reasonable care, and that he failed to
exercise such reasonable care. Nothing in this
Article shall preclude the court from the
application of the doctrine of res ipsa loquitur in
an appropriate case.

5

In support of Bollinger’s contention that the stairs were not
defective because they were built according to U.S. Coast Guard
Regulations, Bollinger offered testimony from Robert J. Wilson,
Program Manager for Bollinger Marine Fabricators, L.L.C.. Wilson
stated that “[p]er the City approved Bollinger paint schedule
document, the non-skid coating was applied to the stairs in the
November 2013, time-frame, when construction was being finalized.”
Bollinger also offered testimony from Stephen L. Curry, who was
employed by Alion Science and Technology as a ship inspector for
the City of New York. He stated that the “City required that the
non-skid coating be applied before the vessel was delivered.
Bollinger Shipyards scheduled and applied the non-skid coating
shortly before delivery, which is standard practice in the ship
building industry.” While Wilson says that the City approved the
paint schedule, Curry says that Bollinger scheduled the required
non skid coating work according to industry standards. Bollinger
has failed to produce any of the City’s paint schedule or the
industry customs to resolve for purposes of summary judgment its
own conflicting evidence.
B. Whether the condition was open and obvious
The defendants contend that the stairs were not unreasonably
dangerous because their slippery condition was open and obvious.
The plaintiff counters that what was open and obvious was the
slippery condition due to the rain, not the lack of anti skid

6

coating.
Louisiana law mandates a four factor risk-utility balancing
test to determine liability, in which the fact finder must balance
the gravity and risk of harm against individual societal rights and
obligations, the social utility of the thing, and the cost and
feasibility of repair. Roy Bufkin, Jr. v. Felipe’s Louisiana, LLC
et al., ---So.3d---, 2014 LEXIS 2257 (La. Oct. 15, 2014). The court
considers the following four factors: (1) the utility of the
complained of condition; (2) the likelihood and magnitude of the
harm, which includes the obviousness and apparentness of the
condition; (3) the cost of preventing the harm; and (4) the nature
of the plaintiff’s activities in terms of its social utility, or
whether it is dangerous by nature. Lester v. Valero RefiningMeraux, LLC, 2015 WL 729703 (E.D. La. Feb. 19, 2015)(citations
omitted). While a defendant generally does not have a duty to
protect against an open and obvious condition, the hazard should be
one that is open and obvious to all- that is everyone who could
potentially encounter it. Id.

A patently fact-intensive inquiry.3

Bollinger focuses on Mueller’s knowledge that: (a) it had
rained and therefore the stairs were wet, and (b) he knew that the
stairs would be slippery because they did not have the non skid

3

It seems useful to observe that if the plaintiff has
serious prior knee issues, and evidence of his obligation of
awareness because of extensive experience is established at
trial, his expectations of a trial outcome could be
problematical.
7

coating. The defendants have not, on this limited record, shown any
evidence that everyone who could potentially use the stairs was
aware of its condition. “The open and obvious inquiry . . . focuses
on the global knowledge of everyone who encounters the defective
thing

or

dangerous

condition,

not

the

victim’s

actual

or

potentially ascertainable knowledge.” Broussard v. State ex rel.
Office State Buildings, 113 So.3d 175, 188 (2013). Therefore,
Mueller’s knowledge of the non-skid coat falls short to determine
now that the defect was open and obvious. Defendants cite several
cases supporting the premise that there is no duty owed when the
unreasonably dangerous condition is created by water or ice because
it is open and obvious. See Latimer, 2014 U.S. Dist. LEXIS 75631,
*11 (W.D. La. May 30, 2014) (citations omitted)(holding that
defendant owed no duty to plaintiff because he was aware of the wet
surface conditions). However, those cases are unhelpful because
water or ice was the only factor creating a defect; in this case,
the alleged defect is the lack of anti-skid coating in addition to
the

water.

A

genuine

issue

of

material

fact

is

presented

concerning whether the wet stairway without the non-skid coat was
unreasonably dangerous; summary judgment is inappropriate.
C.

Whether plaintiff’s negligence was the sole cause of his
injuries

The defendants contend that the only cause for plaintiff’s
injuries was his own carelessness since he failed to maintain a

8

three point contact and was holding a notebook and his raincoat.
The

defendants

also

suggest

that

Mueller’s

degenerative

knee

condition is another reason why he is at fault and should have paid
more attention. Bollinger turns to Mueller’s deposition in which he
admits that maybe, if he was not holding anything, if he had
maintained a three point contact and if he were paying more
attention, he might not have fallen.

Again, a fact-intensive

inquiry that makes summary relief unavailable.
The defendants’ own accident investigation report reveals two
possible causes for the fall: (1) Mueller not using three points of
contact while climbing down the stairs; and (2) the wet conditions
on the main deck plate at the top of the stair and first and second
steps

from

the

top

of

the

stairs.

Additionally,

the

report

indicates as corrective actions to be taken to prevent recurrence
that (1) all employees will be included in the Bollinger Marine
Factories orientation process; and (2) anti- slip materials will be
installed on the main deck area adjacent to the stairway and the
stairway steps. Mueller alleges that the cause of the fall was the
lack of anti-skid material in the stairway and its wet condition.
Obviously, a classic factual controversy concerning what was the
cause, or the causes, of the accident.
D.

Whether defendants are entitled to immunity under La.
R.S. 9:2771

The defendants finally and alternatively contend that they are

9

entitled to immunity under La. R.S. 9:2771. This state law immunity
provision states:
No contractor, including but not limited to a
residential building contractor as defined in R.S.
37:2150.1(9), shall be liable for destruction or
deterioration
of
or
defects
in
any
work
constructed, or under construction, by him if he
constructed, or is constructing, the work according
to plans or specifications furnished to him which
he did not make or cause to be made and if the
destruction, deterioration, or defect was due to
any fault or insufficiency of the plans or
specifications.
This
provision
shall
apply
regardless
of
whether
the
destruction,
deterioration, or defect occurs or becomes evident
prior to or after delivery of the work to the owner
or prior to or after acceptance of the work by the
owner. The provisions of this Section shall not be
subject to waiver by the contractor.
“With respect to tort claims brought by third parties, to avoid
liability, the contractor must prove either that the condition
created was not hazardous or that it had no justifiable reason to
believe that its adherence to the plans and specifications created
a hazardous condition.” Lyncker v. Design Engineering, Inc., 988
So.2d 812, 815 (La. App. 4 Cir. 2008). The defendants bear the
burden of demostrating immunity. Id. at 817. The City had offices
on site and project engineers who supervised the work and planning
schedules. The defendants contend that the stairs were built
according to the City’s specifications and in compliance with U.S.
Coast Guard regulations.
However, as noted above, the only evidence Bollinger has thus
far

offered

to

prove

the

City’s
10

control

over

the

stairway

specifications was testimony from Robert J. Wilson, Program Manager
for Bollinger Marine Fabricators, L.L.C., stating that “[p]er the
City approved Bollinger paint schedule document, the non-skid
coating was applied to the stairs in the November 2013, time-frame,
when construction was being finalized.” Bollinger also offered
testimony from Stephen L. Curry, who was employed by Alion Science
and Technology as a ship inspector for the City of New York,
stating that the “City required that the non-skid coating be
applied

before

the

vessel

was

delivered.

Bollinger

Shipyards

scheduled and applied the non-skid coating shortly before delivery,
which is standard practice in the ship building industry.” While
Wilson says that the City approved the paint schedule, Curry says
that

Bollinger

scheduled

the

required

non-skid

coating

work

according to industry standards.
The present record does not resolve the issue of whether the
defendants were adhering to the City’s schedule or industry customs
(or both); indeed, there is some question as to whether the
defendants adhered to their own paint schedule4. If the defendants
produce a paint schedule that establishes that they were adhering
to the City’s requirements at the time of the accident, they still

4

Wilson mentions a City-approved Bollinger paint schedule
but the timing of when the Bollinger paint schedule was approved
by the City is an open question on this record. Notably, if
Bollinger's trial proof is consistent with its submissions here,
the plaintiff, again, will no doubt consider his trial risks in
evaluating his case.
11

owed Mueller an ordinary duty of care and refrain from creating
hazardous

conditions

in

the

fulfillment

of

the

contractual

obligations with the City. Id. at 819.

And that focuses on trial

facts.

there

Therefore,

considering

that

are

material

fact

disputes as to whether Bollinger was following the City’s paint
schedule, the defendants have failed to demonstrate that they are
entitled to judgment as a matter of law with respect to their
immunity defense under La. R.S. 9:27715.
Accordingly, for the foregoing reasons, IT IS ORDERED that the
motion for summary judgment is DENIED.
New Orleans, Louisiana, July 22, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

5

The Court does not hold that the defendants are not
statutorily immune from liability, only that they have not
carried their burden on this summary record.
12