Carpenter v. Madere & Sons Towing, LLC

Filing 82

ORDER AND REASONS granting 64 Motion for Summary Judgment. Signed by Judge Susie Morgan. (cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL CARPENTER,
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-705

MADERE & SONS TOWING, LLC,
Defendant

SECTION: “E” (2)

ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Third-Party Defendant
John W. Stone Oil Distributor, LLC.1 Defendant and Third-Party Plaintiff Madere & Sons
Towing, LLC, opposes the motion.2 Plaintiff Michael Carpenter also opposes the motion
on similar grounds.3 For the reasons that follow, the motion for summary judgment is
GRANTED.
FACTUAL & PROCEDURAL BACKGROUND
This is a maritime personal-injury case. At all relevant times, the Plaintiff, Michael
Carpenter, was a Jones Act seaman and was employed as a vessel captain by the
Defendant and Third-Party Plaintiff, Madere & Sons Towing, LLC (“Madere”).4 On June
15, 2014, Carpenter was working as the captain of the M/V LADY JOSIE, a vessel owned
and operated by Madere.5 Plaintiff alleges that, on that date while in the course and scope
of his employment with Madere, he was injured when he slipped and fell while walking
on an exterior deck of the LADY JOSIE.6 Plaintiff maintains he slipped on soapy water

R. Doc. 64.
R. Doc. 72. The Court ordered Madere to re-file its statement of contested issues of fact due to certain
deficiencies in its original statement. Madere’s amended statement of facts is Record Document 79.
3 R. Doc. 73.
4 See generally R. Docs. 64-1, 72.
5 R. Doc. 64-2 at 1, ¶1; R. Doc. 79 at 1, ¶1.
6 R. Doc. 64-2 at 1, ¶1; R. Doc. 79 at 1, ¶1.
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that had been left on the deck of the LADY JOSIE by her deckhands.7 Plaintiff insists that
the substance on which he slipped was “Dawn soap.”8 Plaintiff contends, as a result of the
accident, he sustained “serious, disabling[,] and permanent injuries to his lower back and
groin area” and has damages of “past and future mental and physical pain and suffering,
past and future lost wages, past and future medical expenses, [and] loss of enjoyment of
life.”9 Plaintiff filed suit against Madere on March 5, 2015, alleging causes of action for
Jones Act negligence, unseaworthiness under the General Maritime Law, and
maintenance and cure, including punitive damages for Madere’s alleged failure to furnish
cure.
On December 11, 2015, Madere sought leave of court to file a third-party complaint
against John W. Stone Oil Distributor, LLC (“Stone Oil”).10 In its motion for leave, Madere
represented that, in discovering this matter, counsel obtained surveillance video from a
camera mounted at Stone Oil’s dock that “captured the incident in question.”11 When
Carpenter slipped and fell on the M/V LADY JOSIE’s deck, the vessel was docked at Stone
Oil’s fuel dock to offload a plastic drum containing waste oil; to take on a new, supposedly
empty, drum; and to refuel.12 According to Madere, from viewing the surveillance video,
it learned that just prior to Carpenter’s fall, a “Stone Oil dockhand, without requesting
assistance from the crew of the LADY JOSIE and without notifying the crew of the LADY
JOSIE, carelessly tosse[d] a replacement barrel onto the deck of the LADY JOSIE.” 13

R. Doc. 1 at 1–2.
See R. Doc. 64-4 at 9 (First Deposition of Michael Carpenter); R. Doc. 64-5 at 2–4 (Second Deposition of
Michael Carpenter).
9 R. Doc. 1 at 3.
10 R. Doc. 32.
11 R. Doc. 32-1 at 2.
12 R. Doc. 32-1 at 2.
13 R. Doc. 32-1 at 2.
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Madere maintained that, upon “information and belief, the barrel contained oily residue
and/or soapy water within it.”14 Madere further represented that after the barrel landed
on the LADY JOSIE’s deck, the barrel “topple[d] on its side with its topside coming to rest
within inches of the walkway on the port side of the superstructure, the exact area in
which Plaintiff ultimately [slipped and fell].”15 According to Madere, “the oily residue
and/or soapy water inside the barrel leaked out onto the deck of the vessel and caused
Plaintiff to slip.”16 In light of these allegations, the Court granted Madere leave to file a
third-party complaint against Stone Oil on January 12, 2016,17 and Madere’s third-party
complaint was entered into the record on the same date.18
On May 17, 2016, Stone Oil filed a motion for summary judgment seeking the
dismissal of Madere’s third-party complaint and the claims asserted therein. According
to Stone Oil, “there is a complete lack of evidence that Stone Oil or its employees in any
way caused or contributed to . . . Carpenter’s[] fall aboard the M/V LADY JOSIE.”19 The
basis of Madere’s third-party complaint is best summarized, according to Stone Oil, as
being that “an employee of Stone Oil improperly placed a waste oil disposal barrel on the
deck of the LADY JOSIE, which then leaked oily or soapy residue onto the deck and in
which plaintiff then slipped.”20 However, Stone Oil maintains there is simply “no evidence
to support Madere’s allegations against Stone Oil and the Third-Party Complaint should
be dismissed, with prejudice.”21

R. Doc. 32-1 at 2.
R. Doc. 32-1 at 2.
16 R. Doc. 32-1 at 3.
17 R. Doc. 46.
18 R. Doc. 47.
19 R. Doc. 64-1 at 1.
20 R. Doc. 64-1 at 1.
21 R. Doc. 64-1 at 1.
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SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if 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.”22 “An issue is material if its resolution could affect the outcome of the action.” 23
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”24 All reasonable inferences are drawn in favor of the non-moving party.25
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.26
If the dispositive issue is one on which the moving party will bear the burden of
persuasion 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.’” 27 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the non-moving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.28

FED. R. CIV. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
24 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). See also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
25 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
26 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
27 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
28 Celotex, 477 U.S. at 322–24.
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If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to
establish an essential element of the non-movant’s claim.29 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied.30 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.”31 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”32
LAW AND ANALYSIS
As the moving party, it is Stone Oil’s burden to establish the absence of any genuine
issues of material fact and that it is entitled to judgment as a matter of law. Stone Oil
notes, and indeed it is undisputed, that not long before the LADY JOSIE arrived at Stone
Oil’s fuel dock, Ronald Taylor and Gary Fitzgerald, the vessel’s deckhands, cleaned the
Id. at 331–32 (Brennan, J., dissenting).
See id. at 332.
31 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
32 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
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deck with Dawn soap.33 Both Taylor and Fitzgerald testified in their depositions that the
LADY JOSIE’s deck needed to be cleaned because some waste oil spilled on the deck while
they were discharging the waste oil from the vessel at a “hopper barge” owned by Madere
in Venice, Louisiana.34 Madere does not dispute that Taylor and Fitzgerald cleaned the
LADY JOSIE’s deck with Dawn soap prior to the vessel’s arrival at Stone Oil’s fuel dock
or the reason the deck needed to be cleaned.35 It is also undisputed that Plaintiff, Michael
Carpenter, testified that he slipped on Dawn soap.36
It is further undisputed that Carpenter piloted the LADY JOSIE to Stone Oil’s fuel
dock upon leaving Madere’s waste-oil hopper barge.37 The parties agree that, shortly after
arriving at the dock, Cameron Hebert, a Stone Oil employee, obtained a barrel from Stone
Oil’s warehouse and carried it to the fuel dock and the awaiting LADY JOSIE.38 It is also
undisputed that, upon arriving at the LADY JOSIE’s port side, which was parallel to the
dock, Hebert lifted the barrel, placed its bottom on the side railing of the LADY JOSIE
while holding the barrel upright, and then pushed the barrel onto the vessel’s deck.39 The
bottom of the barrel made contact with the deck and wobbled slightly before falling near
the port-bow corner of the LADY JOSIE’s superstructure.40
The parties also agree that, several minutes after the barrel landed on the LADY
JOSIE’s deck, Gary Fitzgerald picked up the barrel and stood it upright.41 It is undisputed

R. Doc. 64-2 at 1–2; R. Doc. 64-1 at 3–5. See also R. Doc. 79 at 3–4, ¶¶1–6.
R. Doc. 64-6 at 9 (First Deposition of Ronald Taylor); R. Doc. 72-1 at 2–3 (Deposition of Gary Fitzgerald).
35 R. Doc. 79 at 3, ¶¶1–2. See also R. Doc. 72 at 1.
36 R. Doc. 64-4 at 8–9 (First Deposition of Michael Carpenter); R. Doc. 64-5 at 2–4 (Second Deposition of
Michael Carpenter); R. Doc. 64-2 at 1, ¶3; R. Doc. 79 at 2, ¶3.
37 See generally R. Doc. 79 at 3–4, ¶¶1–6.
38 R. Doc. 79 at 4, ¶12; R. Doc. 64-1 at 17, 19
39 R. Doc. 64-8 (Surveillance Video of Incident).
40 R. Doc. 64-8 (Surveillance Video of Incident).
41 R. Doc. 64-1 at 10; R. Doc. 64-9 at 11–14 (Deposition of Gary Fitzgerald); R. Doc. 64-8 (Surveillance Video
of Incident). See also R. Doc. 79 at 5, ¶¶15–17.
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that, not long thereafter, Carpenter was walking down the port side of the vessel from the
stern to the bow when he slipped and fell near where the barrel fell to its side before being
picked up by Fitzgerald.42 It is undisputed that Ronald Taylor was in the vicinity of where
Carpenter slipped and fell immediately after it occurred.43 It is also undisputed that
Taylor and Fitzgerald were in the immediate vicinity of the barrel after it fell to its side on
the LADY JOSIE’s deck and they both testified that nothing leaked from the barrel.44
Although both responded in their depositions that something might have leaked from the
barrel,45 the Court does not consider metaphysical musings about what is possible to be
material facts. The Court finds the material facts are not in dispute.
The Court must now determine whether Stone Oil is entitled to judgment as a
matter of law. At trial, Madere will bear the burden of proving that the Stone Oil barrel
contained oily residue and/or soapy water that leaked onto the LADY JOSIE’s deck and
that the oily residue and/or soapy water caused or contributed to Plaintiff’s slip and fall.
To prevail on summary judgment, however, it is Stone Oil’s burden to either (1) submit
affirmative evidence that negates an essential element of Madere’s claim against Stone
Oil, or (2) affirmatively demonstrate that there is no evidence in the record to establish
an essential element of Madere’s claim against Stone Oil.46 Stone Oil has chosen the
second alternative and argues there is a “complete lack of evidence that Stone Oil or its
employees in any way caused or contributed to [P]laintiff, Michael Carpenter’s, fall

R. Doc. 64-2 at 1–2; R. Doc. 79 at 5, ¶¶ 15–18.
R. Doc. 64-2 at 2, ¶¶5–6; R. Doc. 79 at 4–5; R. Doc. 64-6 at 9–10 (First Deposition of Ronald Taylor); R.
Doc. 64-7 at 9, 11, 13 (Second Deposition of Ronald Taylor).
44 R. Doc. 79 at 4–5, ¶¶13–17; R. Doc. 64-7 at 9–11 (Second Deposition of Ronald Taylor); R. Doc. 64-9 at
6, 10–11, 13 (Deposition of Gary Fitzgerald).
45 See R. Doc. 64-7 at 2–3, 8 (Second Deposition of Ronald Taylor); R. Doc. 64-9 at 10 (Deposition of Gary
Fitzgerald).
46 Celotex, 477 U.S. at 331–32 (Brennan, J., dissenting).
42
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aboard the M/V LADY JOSIE.”47 Stone Oil argues that it has met its burden as there is no
evidence that the Stone Oil barrel contained any oily substance, and even if it did, there
is no evidence that the substance leaked out of the barrel and caused Carpenter to slip and
fall. To establish the lack of record evidence supporting Madere’s claim against it, Stone
Oil relies on the depositions of the Plaintiff, Michael Carpenter; deckhands Ronald Taylor
and Gary Fitzgerald; and Stone Oil employees Cameron Hebert and Joshua Buras.
Michael Carpenter testified in his deposition, and indeed was adamant, that he
slipped on Dawn soap left behind by Taylor and Fitzgerald when they cleaned the vessel’s
deck after discharging waste oil from the LADY JOSIE.48 Carpenter testified that the
barrel’s final resting place on the LADY JOSIE’s deck was “3 or 4 feet away” from where
he fell and that it would “have been kind of hard for [something] to leak out of that drum
right there and go to that spot,” referring to the spot where he ultimately fell.49 Revisiting
this testimony, counsel for Madere then asked Carpenter, again: “The drum that fell over
right in the area in which you slipped and fell was a clean barrel that was put into the
vessel . . . , is that correct?”50 Carpenter responded, “Yes.”51 Counsel then asked Carpenter,
“And that’s the barrel that could have been the source of the substance in which you
slipped; is that correct?”52 Carpenter responded: “I honestly don’t see how,” and in
response to follow-up questioning, Carpenter again stated “I just don’t see it,” explaining
that, because there were not any “splashes” coming from the direction of the barrel toward

R. Doc. 64-1 at 1.
R. Doc. 64-4 at 8–9 (First Deposition of Michael Carpenter); R. Doc. 64-2 at 1, ¶3; R. Doc. 79 at 2, ¶3.
49 R. Doc. 64-5 at 13 (Second Deposition of Michael Carpenter).
50 R. Doc. 64-5 at 14 (Second Deposition of Michael Carpenter) (emphasis added).
51 R. Doc. 64-5 at 14 (Second Deposition of Michael Carpenter).
52 R. Doc. 64-5 at 14 (Second Deposition of Michael Carpenter).
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the spot where he fell, he did not think that the substance on which he slipped emanated
from Stone Oil’s barrel.53
Ronald Taylor, one of the LADY JOSIE’s two deckhands, testified that he believed
Carpenter tripped on an exposed face wire on the LADY JOSIE’s deck, not any substance
that leaked from the barrel.54 According to Taylor, he inspected the location of Carpenter’s
fall immediately after it happened, and he noticed that, despite Carpenter’s claims that he
slipped on Dawn soap, there was no soap in the area and that the deck was “dry.”55 Taylor
confirmed that, after Carpenter’s fall, he did not see any “oil, soap[,] or sheen” in the
area.56 Instead, Taylor testified that he “clearly” saw Carpenter “trip over that cable.”57
Taylor admitted in his second deposition that Carpenter’s tripping over a face wire was
his “theory” of what caused the incident,58 but his testimony that there was no soap on
the deck and that the deck was dry did not change.
Gary Fitzgerald testified that he was the deckhand who stood the barrel up after
noticing it lying on the deck.59 Fitzgerald was asked whether, at that point, he noticed
anything leaking from the barrel. Fitzgerald responded: “Not that I can remember.”60
Fitzgerald also testified that he has never seen anything leak out of a barrel such as the
one that the LADY JOSIE received from Stone Oil on the day of the incident-in-question.61
Cameron Hebert, the Stone Oil employee who transferred the subject barrel to the
LADY JOSIE, was deposed on May 23, 2016.62 Hebert testified that, in general, when
See R. Doc. 64-5 at 13–16 (Second Deposition of Michael Carpenter).
R. Doc. 64-6 at 20 (First Deposition of Ronald Taylor).
55 R. Doc. 64-6 at 20–22 (First Deposition of Ronald Taylor).
56 R. Doc. 64-6 at 22–23 (First Deposition of Ronald Taylor).
57 R. Doc. 64-6 at 20 (First Deposition of Ronald Taylor).
58 R. Doc. 64-7 at 3 (Second Deposition of Ronald Taylor).
59 R. Doc. 64-9 at 10–13 (Deposition of Gary Fitzgerald).
60 R. Doc. 64-9 at 11 (Deposition of Gary Fitzgerald).
61 R. Doc. 64-9 at 12–13 (Deposition of Gary Fitzgerald).
62 R. Doc. 72-1 (Deposition of Cameron Hebert).
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Stone Oil takes possession of barrels from the manufacturer, American Recovery, the
barrels “contain no product whatsoever.”63 Hebert further testified that every barrel he
has ever handled for Stone Oil has been “bone dry,” explaining that if something, whether
a liquid substance or some other residue, was in a barrel, he would “feel it swishing
around” when transferring that barrel to a customer.64
Joshua Buras, another Stone Oil employee, gave a deposition on March 23, 2016.65
Like Hebert, Buras testified that the barrels (or drums) that Stone Oil supplies to its
customers are empty.66 Buras explained Stone Oil’s process for transferring barrels to
waiting vessels, stating that, “[i]f the boat tells us that they need an empty American
Recovery drum, we go to the warehouse. Usually we carry it to the boat and set it on the
deck or hand it to the guy if he’s standing there.” 67 Buras testified that the barrels are
empty when delivered to Stone Oil customers.68 For example, Buras was asked, “Do you
ever turn the barrel over to make sure it won’t leak any materials if there is any material
in there?”69 Buras responded, “Well, if it is empty, how are you going to know if it is going
to leak?”70
Stone Oil has met its burden of affirmatively demonstrating that there is no
evidence in the record to establish an essential element of Madere’s claim against Stone
Oil—i.e., that an oily substance leaked out of the barrel it delivered to the LADY JOSIE
and caused or contributed to Carpenter’s fall aboard the vessel.

R. Doc. 72-1 at 31 (Deposition of Cameron Hebert).
R. Doc. 72-1 at 32 (Deposition of Cameron Hebert).
65 R. Doc. 64-12 (Deposition of Joshua Buras).
66 R. Doc. 64-12 at 3 (Deposition of Joshua Buras).
67 R. Doc. 64-12 at 3 (Deposition of Joshua Buras).
68 R. Doc. 64-12 at 3–4 (Deposition of Joshua Buras).
69 R. Doc. 64-12 at 4 (Deposition of Joshua Buras).
70 R. Doc. 64-12 at 4 (Deposition of Joshua Buras).
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Madere, as the party opposing summary judgment, may defeat Stone Oil’s motion
for summary judgment by “calling the Court’s attention to supporting evidence already in
the record that was overlooked or ignored by the moving party.”71 Madere must identify
specific evidence in the record and articulate the precise manner in which that evidence
supports its claim that Stone Oil caused or contributed to Carpenter’s injuries. Madere
points to the depositions of the Plaintiff, Michael Carpenter, and the LADY JOSIE’s
deckhands, Ronald Taylor and Gary Fitzgerald.
In their second depositions, Carpenter and Taylor were each asked outright what
role Stone Oil played in the incident. In discussing the barrel received from Stone Oil and
whether it was a cause of Carpenter’s slip and fall, counsel for Madere engaged in the
following exchange with Carpenter:
Q. Did you notice, when you looked at the video, that after it fell over, it fell
over right next to the stairwell and right in front of where you fell down?
A. Yes. A perfect shot.
Q. Right. In your opinion, is that a potential source of the substance that
you slipped in on the date of your incident?
A. It could have been.72
However, as noted above, later during the same deposition Carpenter conceded that the
barrel’s final resting place on the LADY JOSIE’s deck was “3 or 4 feet away” from where
he fell and that it would “have been kind of hard for [something] to leak out of that drum

Celotex, 477 U.S. at 332–33. The burden would then shift back to the movant to demonstrate the
inadequacy of the evidence relied upon by the non-movant. Once attacked, “the burden of production shifts
to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers,
(2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e),
or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at
332–33, 333 n.3.
72 R. Doc. 64-5 at 12 (Second Deposition of Michael Carpenter).
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right there and go to that spot,” referring to the spot where he ultimately fell.73 Counsel
for Madere then asked Carpenter: “The drum that fell over right in the area in which you
slipped and fell was a clean barrel that was put into the vessel . . . , is that correct?” 74
Carpenter responded, “Yes.”75 Counsel then asked: “And that’s the barrel that could have
been the source of the substance in which you slipped; is that correct?”76 This time,
Carpenter responded, “I honestly don’t see how,” and in response to follow-up
questioning, Carpenter again stated “I just don’t see it,” explaining that, because there
were not any “splashes” coming from the direction of the barrel toward the spot where he
fell, he did not think that the substance on which he slipped emanated from Stone Oil’s
barrel.77
A similar discussion was had with Ronald Taylor during his second deposition. 78
Counsel for Stone Oil explicitly asked Taylor, in Taylor’s opinion, “what role did Stone
play in [Carpenter] falling?” Taylor responded: “I think, personally, maybe, could have
been from the drum.”79 Counsel also asked Taylor, however, whether he personally saw
anything leak out of the barrel, to which Taylor responded, “I’m not aware,” admitting
that he was “assuming” that something may have leaked from the barrel and that it was a
“guess.”80
Gary Fitzgerald was also asked during his deposition “what role, if any, [did] Stone
play[] in Captain Frank’s accident?”81 Fitzgerald responded that he could not recall from

R. Doc. 64-5 at 13 (Second Deposition of Michael Carpenter).
R. Doc. 64-5 at 14 (Second Deposition of Michael Carpenter) (emphasis added).
75 R. Doc. 64-5 at 14 (Second Deposition of Michael Carpenter).
76 R. Doc. 64-5 at 14 (Second Deposition of Michael Carpenter).
77 See R. Doc. 64-5 at 13–16 (Second Deposition of Michael Carpenter).
78 See R. Doc. 64-7 (Second Deposition of Ronald Taylor).
79 R. Doc. 64-7 at 2 (Second Deposition of Ronald Taylor).
80 R. Doc. 64-7 at 3, 8 (Second Deposition of Ronald Taylor).
81 R. Doc. 64-9 at 10 (Deposition of Gary Fitzgerald). Captain Frank refers to the Plaintiff.
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watching the video but that, “[i]f there was oil in [the barrel], maybe [it] could have leaked
out.”82 As noted above, however, Fitzgerald also confirmed that he was the deckhand who
stood the barrel up after noticing it lying on the deck, and Fitzgerald was then asked
whether he noticed anything leaking from the barrel when he stood it up.83 Fitzgerald
responded: “Not that I can remember.”84 Fitzgerald also testified that he has never seen
anything leak out of a barrel such as the one the LADY JOSIE received from Stone Oil on
the day of the incident-in-question.85
Citing “could have been,” “might have been” testimony and outright guesses,
Madere attempts to support its claim that leakage from the barrel was the cause of the
accident. The Fifth Circuit has held that summary judgment cannot be avoided merely by
showing “some metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.”86 “Rather, the non-moving
party must set forth specific facts showing the existence of a genuine issue concerning
every essential component of its case.”87 “Testimony based on conjecture or speculation
is insufficient to raise an issue of fact to defeat a summary judgment motion because there
is no issue for trial unless there is sufficient evidence favoring a nonmoving party.”88
The evidence in the record shows that Carpenter testified he slipped on Dawn soap
and the barrel’s final resting place on the LADY JOSIE’s deck was “3 or 4 feet away” from
where he fell and it would “have been kind of hard for [something] to leak out of that
R. Doc. 64-9 at 10 (Deposition of Gary Fitzgerald).
R. Doc. 64-9 at 11 (Deposition of Gary Fitzgerald).
84 R. Doc. 64-9 at 11 (Deposition of Gary Fitzgerald).
85 R. Doc. 64-9 at 12–13 (Deposition of Gary Fitzgerald).
86 Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (citations and internal quotation
marks omitted). See also Lawrence v. Federal Home Loan Mortg. Corp., 808 F.3d 670, 673–74 (5th Cir.
2015).
87 Boudreaux, 402 F.3d at 540 (citations and internal quotation marks omitted).
88 Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249–50 (1986)).
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drum right there and go to that spot.” Taylor testified that Carpenter tripped on a face
wire and that he, personally, did not see anything leaking from the barrel, admitting that
his belief that something “might have” leaked from the barrel was based on his
assumptions and was a “guess.”89 Gary Fitzgerald testified that he, himself, picked up the
barrel after it fell but did not notice anything leaking from the barrel and has never seen
anything leak from such a barrel.90 Stone Oil employee Cameron Hebert testified that
every barrel he has ever handled for Stone Oil has been “bone dry,” explaining that if
something was in a barrel, he would “feel it swishing around” when transferring the barrel
to a customer. Joshua Buras, another Stone Oil employee, testified that the barrels Stone
Oil supplies to its customers are empty upon delivery.91
Madere also points to the surveillance video of Carpenter’s slip and fall obtained
from Stone Oil’s fuel dock. The surveillance video shows the barrel falling over onto the
deck, but the video does not show any substance leaking from the barrel onto the deck.92
Neither does the video show any substance on the LADY JOSIE’s deck in the vicinity of
the barrel.
Madere has failed to call the Court’s attention to supporting evidence already in
the record to establish that a substance leaked from the barrel onto the deck causing or
contributing to the Plaintiff’s injury.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion for summary
judgment filed by John W. Stone Oil Distributor, LLC, be and hereby is GRANTED.

R. Doc. 64-7 at 3, 8 (Second Deposition of Ronald Taylor).
R. Doc. 64-9 at 11 (Deposition of Gary Fitzgerald).
91 R. Doc. 64-12 at 3 (Deposition of Joshua Buras).
92 R. Doc. 64-8 (Surveillance Video of Incident).
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New Orleans, Louisiana, this 29th day of June, 2016.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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