Mueller v. Bollinger Shipyards, Inc. et al

Filing 51

ORDER & REASONS granting in part and denying in part 41 Motion for Summary Judgment, as stated herein. Signed by Judge Martin L.C. Feldman on 12/15/2015. (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 the defendants' second motion for summary
judgment.

For the reasons that follow, the motion is DENIED

insofar as the defendants claim contractor immunity, but the motion
is GRANTED insofar as there is no evidence that the stairway posed
an unreasonable risk of harm.
Background
This personal injury lawsuit arises from Thomas Mueller’s
claim that he slipped and fell while inspecting a vessel under
construction and owned by Bollinger.
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.

The

City

1

approved

the

blueprints,

specifications,

and

drawings

for

the

barges,

and

had

a

representative present to oversee compliance.
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,

requiring several surgeries.1

Mueller

suffered

severe

injuries

Mueller was aware that 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

were wet and that non-skid paint had not been applied.

Although

non-skid paint was not applied until after the accident,2 the
stairway was constructed of steel diamond treads with non-slip
stepping pads.

Mueller had previously used the stairs 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 non-skid paint
allegedly required to make the steps safe for use, Mueller contends
Bollinger Shipyards, Inc. and Bollinger Marine Fabricators, L.L.C.
were negligent.

On July 22, 2015, the Court denied the defendants

motion for summary judgment.

Following additional discovery, the

defendants now move for summary judgment a second time.

I. Standard for Summary Judgment
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

2

Shortly before delivery of the vessel in January 2014,
after the accident, the steps on the ladder were painted with a
non-skid paint in November 2013. The City's specifications did not
specify when the paint was to be applied, but applying paint
shortly before delivery of the vessel was in accordance with
industry practice.
3

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.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

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 claims.

Id.

Hearsay 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).
defeat

summary

judgment

"[T]he nonmoving party cannot

with

conclusory

allegations,

unsubstantiated assertions, or only a scintilla of evidence."

4

Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).

In deciding whether a fact

issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must
"resolve factual controversies in favor of the nonmoving party," it
must do so "only where there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir.
2013)(internal quotation marks and citation omitted).

II.
A.

Application

Contractor Immunity

Under Louisiana law, a contractor has a duty to third parties
"to exercise ordinary care and refrain from creating hazardous
conditions in the fulfillment of its contractual obligations."
Lyncker v. Design Eng'g, Inc., 988 So.2d 812, 814 (La. App. 4 Cir.
2008), writ denied, 922 So.2d 1036 (La. 2008).

Notwithstanding

this general duty, Louisiana confers statutory immunity on a
contractor who follows the plans and specifications of another
party. Id.; Cormier v. Honiron Corp., 771 So.2d 193, 197 (La. App.
3 Cir. 2000).
La.R.S. 9:2771 states:
No contractor ... shall be liable for destruction or
deterioration of or defects in any work constructed or
5

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 y 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, 988 So.2d at 815 (citation

omitted).
The plaintiff submits that the Bollinger defendants were
negligent in allowing access to the stairway despite the absence of
non-skid paint that would have made the steps safer for use.

That

the defendants created the Master Paint Schedule that called for
application of non-skid paint just prior to vessel delivery, the
plaintiff avers, makes them ineligible for statutory immunity. The
defendants counter that the paint specifications did not call for
the application of non-skid paint on the steps; the specifications
simply required there to be some non-skid tread. The steel diamond
tread that the steps are made of complied with specifications for
non-skid tread, the defendants contend.

Moreover, the defendants

submit, the City approved the drawings and specifications, and the
6

573 fully complied with the drawings and specifications.
The plaintiff contends that the absence of the non-skid paint
rendered

the

stairway

unreasonably

dangerous.

Putting

aside

whether this is so, whether Bollinger is eligible for contractor
immunity

turns

on

whether

application of that paint.

it

controlled

the

timing

of

the

Because the plaintiff at least focuses

a fact issue, the Bollinger defendants are not entitled to summary
judgment.

The summary judgment record indicates that although the

City approved of Bollinger's approach, Bollinger controlled the
timing of the application of the non-skid paint on the stairs, and
that Bollinger chose to adhere to industry practice.3
B.

Unreasonably Dangerous, or Obvious, Condition?

Because the Bollinger defendants are not entitled to summary
judgment as to contractor immunity, the Court turns to consider
whether

they

are

nevertheless

entitled

to

summary

judgment

dismissing the plaintiff's negligence claims because the absence of
non-skid paint was not a defect that posed an unreasonable risk of
harm.
Louisiana Civil Code article 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

3

A more interesting issue not briefed by the parties,
perhaps because there is no case literature on point, is whether
industry practice may constitute a "plan or specification furnished
to [the contractor]" sufficient to invoke contractor immunity.
7

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.
Thus, to prove liability against the owner or custodian of a
defective thing under Louisiana Civil Code article 2317 and 2317.1,
the plaintiff must prove: (1) that the thing that caused his damage
or injury was in the custody or care of the defendant; (2) that
there

was

a

vice

or

defect

in

the

thing,

which

created

an

unreasonable risk of harm, (3) that the defendant knew or should
have known of the unreasonable risk of harm, and (4) that vice or
defect caused the damage or injury.

Babino v. Jefferson Transit,

110 So.3d 1123, 1126 (La. App. 5 Cir. 2013)(citations omitted). Of
course, not every defect gives rise to liability. "The defect must
be of such a nature to constitute a dangerous condition, which
would reasonably be expected to cause injury to a prudent person
using ordinary care under the circumstances."

Id. (citation

omitted).
The Bollinger defendants submit that the plaintiff has failed
to identify a material fact to be tried concerning whether the
unpainted stairs made of diamond tread constituted a defect which
posed an unreasonable risk of harm.

The Court agrees.

There is no dispute that the stairway in question was part of
a vessel under construction.

Nor is there any dispute that

Bollinger complied with the schedule and specifications approved by
the City and consistent with industry standards in constructing the
8

vessel and, in particular, constructing the stairway.

The summary

judgment record indicates that the stairs on which Mr. Mueller fell
were wet from rainfall that day.
steel

diamond

tread

non-slip

designed to prevent slips.

These stairs were constructed of
step

pads

along

with

handrails

This diamond plating design satisfied

the specifications of non-skid material.

The plaintiff admits

these facts, but nevertheless contends that the failure to apply
the non-skid paint rendered the stairs, when wet from rainfall,
unreasonably dangerous.

But the plaintiff has wholly failed to

submit factual support for an essential element of his claim; no
facts of record support a finding that the unpainted steps created
a hazardous condition, or that the absence of non-skid paint was in
and of itself a defect that posed an unreasonable risk of harm.4
The defendants' motion for summary judgment is DENIED insofar
as they are not entitled to judgment as a matter of law that they
are eligible for statutory contractor immunity.

However, because

the plaintiff has submitted no evidence in support of his claim
that the stairway itself posed an unreasonable risk of harm to Mr.
Mueller, the defendants' motion for summary judgment is GRANTED.

4

This is especially so, considering that it is
undisputed that the stairs were constructed of steel plating that
is designed to prevent slips. There is no evidence that calls into
question this record fact: "the diamond tread that these steps
were made of complies with MARAD specifications for nonskid tread."
The specifications did not specifically mandate the application of
non-skid paint, only some kind of non-skid tread.
9

The plaintiff's claims are hereby dismissed.
New Orleans, Louisiana, December 15, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

10