Bonin v. Bilfinger Salamis, Inc.

Filing 75

ORDER AND REASONS DENYING 28 Motion for Summary Judgment; DENYING 43 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 12/16/2016. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BARRETT BONIN

CIVIL ACTION

VERSUS

NO. 16-1092

BILFINGER SALAMIS, INC.

SECTION "B"(3)
ORDER AND REASONS

Before the Court are cross motions for summary judgment.
First is Defendant’s “Motion for Summary Judgment” (Rec. Doc.
28), to which Plaintiff timely filed an opposition memorandum (Rec.
Doc. 49). Defendant then requested (Rec. Doc. 54), and this Court
granted (Rec. Doc. 58), leave to file a reply memorandum (Rec.
Doc. 59). Thereafter, Plaintiff requested (Rec. Doc. 62), and this
Court granted (Rec. Doc. 64), leave to file a sur-reply memorandum
(Rec. Doc. 65).
Second is “Plaintiff’s Motion for Partial Summary Judgment”
(Rec. Doc. 43), to which Defendant timely filed an opposition
memorandum. Rec. Doc. 47. For the reasons enumerated below,
IT IS ORDERED that Defendant’s motion for summary judgment
(Rec. Doc. 28) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion for partial
summary judgment (Rec. Doc. 43) is DENIED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of a fall suffered by Plaintiff Barrett

Bonin (“Plaintiff”). Rec. Doc. 1 at ¶ 8. On May 7, 2015, Plaintiff,

an

employee

of

Third-Party

Defendant

Corrpro

Companies,

Inc.

(“Corrpro”), was working as a painting inspector and monitor on a
fixed offshore platform in the Gulf of Mexico off the Louisiana
coast. Id. at ¶ 5. The platform was owned and/or operated by ThirdParty

Defendant

Murphy

Exploration

&

Production

Co.,

USA

(“Murphy”). Id. At the time of the accident, employees of Defendant
Bilfinger Salamis, Inc. (“Bilfinger” or “Defendant”), a painting
subcontractor, were painting the platform and equipment. Id. at ¶
7. Bilfinger employees allegedly left a rope in a walkway next to
a fire pump and Plaintiff tripped on the rope, falling “forward,
striking his stomach, chest and hands on the steel deck.” Id. at
¶ 8.
On February 5, 2016, Plaintiff filed suit against Bilfinger,
claiming that his injuries were a result of Bilfinger’s negligence.
Rec. Doc. 1 at ¶ 10.1
II.
A.

THE PARTIES’ CONTENTIONS
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

In its motion for summary judgment, Bilfinger argues that the
alleged hazard over which Plaintiff tripped “presented an open and

On July 27, 2016, Bilfinger filed a third party complaint, alleging that it
and Murphy entered into a “Master Service Agreement” on August 3, 2013, in which
Murphy agreed to indemnify Bilfinger from all liability arising from an injury
suffered by a Murphy employee or contractor. Rec. Doc. 13 at ¶¶ 6-7. On August
9, 2016, Bilfinger filed a third party complaint against Corrpro, alleging that
Corrpro and Murphy entered into a “Master Service Agreement” on August 6, 2013,
in which Corrpro agreed to indemnify Murphy from all liability arising from an
injury suffered by a Murphy employee or contractor. Rec. Doc. 19 at ¶¶ 6-7. On
October 12, 2016, this Court granted a joint motion to sever the third party
indemnity claims. See Rec. Docs. 23, 26.
1

2

obvious condition,” such that Bilfinger did not owe a duty to
Plaintiff and is accordingly entitled to judgment as a matter of
law. Rec. Doc. 28-1 at 1. In the memorandum in support of its
motion

for

summary

judgment,

Bilfinger

copied

and

pasted

approximately nine pages of Plaintiff’s deposition testimony. Id.
at

2-11

(citing

Rec.

Doc.

28-5).

In

summary,

the

excerpted

testimony provides that Plaintiff was taking pictures at the time
of his accident and was likely looking at a fire pump (the object
of his next photograph), with the camera up to his face, when he
tripped over the rope. See id.
In response, Plaintiff argues that the rope did not present
an open and obvious hazard, because (1) Plaintiff’s job required
him to have a camera to his face and Defendant’s personnel knew
that; (2) Plaintiff expected the walkways to be clear and had found
them clear earlier in the day; and (3) Defendant violated its own
policies by failing to clear the walkway. Rec. Doc. 49 at 8.
Defendant’s

reply

memorandum

essentially

argues

that

Plaintiff effectively failed to rebut Defendant’s assertion that
the rope posed an open and obvious hazard and that Fluence v.
Marshall Bros. Lincoln-Mercury Inc., 10-482 (La. App. 5 Cir.
11/23/10); 54 So. 3d 711 is controlling and indistinguishable
authority. Rec. Doc. 59 at 1-4.
While Plaintiff’s sur-reply reiterates some of the arguments
made in its original opposition, it also suggests that the only
3

evidence that the rope posed an open and obvious hazard includes
the photographs of the rope taken by Plaintiff after his accident.
Rec. Doc. 65 at 3 (citing Rec. Doc. 28-1 at 11). According to
Plaintiff, Defendant’s resulting “assertion that the rope was open
and obvious is a conclusory statement insufficient to support a
motion for summary judgment.” Id. (internal citations omitted).
Plaintiff also argues that the rope was not open and obvious
because “a large yellow column and equipment concealed the rope
from view by individuals entering the area surrounding the fire
pump form [sic] the north stair tower.” Id. (citing Rec. Doc. 651

at

4-5;

6-8).2

Plus,

Plaintiff

contends,

the

photographs

submitted by Defendant clearly show ladders and other equipment
that could have blocked a person’s view of the rope. Id.
B.

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

In his motion for partial summary judgment, Plaintiff argues
that he is entitled to judgment as a matter of law finding that
(1) Bilfinger owed him a duty of care and (2) Bilfinger breached
that duty of care. Rec. Doc. 43-1 at 1. Plaintiff claims that, on
the morning of the accident, Bilfinger employees “down rigged (took
down tarps and rope and removed paint pots, hoses, and other
equipment from the area)” surrounding the fire pump. Rec. Doc. 43-

Rec. Doc. 65-1 contains excerpts from Plaintiff Barrett Bonin’s deposition.
It will be cited by referring to the page numbers in the record document, rather
than the non-sequential page numbers of the deposition transcript.
2

4

1 at 4 (citing Rec. Doc. 43-4 at 23-28).3 Even though a job safety
analysis

(“JSA”)

was

supposed

to

be

prepared

by

Bilfinger,

according to both its own rules and the safety policies imposed by
Murphy, Bilfinger did not prepare a JSA for the down rigging. Id.
at 3-4 (citing Rec. Doc. 43-4 at 2, 17-19, 29-30, 46-48; 43-8 at
12-13;4 43-9 at 14-19).5 Further, even though the rope was to be
placed in the trash and the crew was supposed to ensure the area
was free of any trip hazards prior to taking a break, the crew
left a manila rope in the work area around the fire pump. Id. at
4 (citing Rec. Docs. 43-2 at 39, 71-72;6 43-4 at 13-16, 33-35, 3945; 43-8 at 20-21; 43-9 at 20-21, 30-34). Plaintiff argues that
the rope was left in an area in which people walked and were
expected to walk and that the Bilfinger crew knew or should have
known that Plaintiff would be inspecting the fire pump. Id. at 1617 (citing Rec. Docs. 43-2 at 71-72; 43-4 at 41; 43-9 at 31, 33).
When Plaintiff subsequently “came down the stair tower from the
third deck to the hull area . . . [and] started taking pictures of
the fire pump and walking around the fire pump, . . . he tripped

Rec. Doc. 43-4 includes excerpts from the deposition of Michael Weber, the
supervisor for Bilfinger on the day of the accident. This document will be cited
by referring to the page numbers in the record document, rather than the nonsequential page numbers of the deposition transcript.
4 Rec. Doc. 43-8 includes excerpts from the deposition of Marty Pierre, the
“OIM” at Murphy.
5 Rec. Doc. 43-9 includes excerpts from the deposition of Steve Perry, the
Senior Safety Supervisor at Murphy.
6 Rec. Doc. 43-2 includes excerpts from the deposition of Plaintiff Barrett
Bonin.
3

5

over the manila rope that the Bilfinger crew had left on the deck
. . . .” Id. at 5 (citing Rec. Doc. 43-2).
Defendant Bilfinger responds that there are genuine issues of
material fact “about the very occurrence of this accident, where
it occurred and how it occurred . . . .” Rec. Doc. 47 at 1.
Specifically, Defendant notes that Plaintiff referred to the rope
at issue as “deck-colored” in his deposition, but “manila” in his
motion for partial summary judgment. Id. at 1-2 (citing Rec. Doc.
47-2 at 4).7 According to Defendant, in the pictures taken by
Plaintiff

after

the

accident

and

included

in

Defendant’s

memorandum in support of its motion for summary judgment, the rope
depicted was not a “manila” rope. Id. at 2. Plus, Plaintiff stated
in his deposition testimony that he fell in the northeast corner
of the platform, but on the day of the accident he told the safety
coordinator that he fell in the southwest corner of the platform.
Id. (citing Rec. Docs. 47-2 at 2-4; 47-3 at 2). Further, Plaintiff
stated that he took pictures immediately following the accident,
but the photographs are time stamped approximately five hours after
the accident. Id. In any event, Defendant also adopted all of the
arguments made by it in its motion for summary judgment. Id. at 3.
Defendant further clarifies that Plaintiff’s failure to see the
rope

before

allegedly

tripping

“is

not

mere

comparative

Rec. Doc. 47-2 contains excerpts from Plaintiff’s deposition testimony. The
document will be cited according to the record document page number, rather
than the page number in the deposition transcript.
7

6

negligence; it is a complete failure to use ordinary care to avoid
an open, obvious tripping hazard . . . .” Id. at 4.
III. LAW AND ANALYSIS
A.

SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

only

interrogatories,

if
and

“the

pleadings,

admissions

on

depositions,
file,

together

answers

to

with

the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002).
A genuine issue exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must
point to “portions of ‘the pleadings, depositions, answers to
interrogatories,

and

admissions

on

file,

together

with

the

affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).

7

However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg

Enter.,

Furthermore,

at

Inc.,
the

7

F.3d

summary

1203,

judgment

1207

(5th

stage,

Cir.

this

1993).

Court

is

prohibited from weighing the evidence. Deville v. Marcantel, 567
F.3d 156, 164 (5th Cir. 2009) (noting that district courts must
“refrain from making credibility determinations or weighing the
evidence” when deciding a motion for summary judgment) (quoting
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007)).
B.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Under the Outer Continental Shelf Lands Act (“OCSLA”), the
laws of the United States are extended to “all installations and
other devices permanently or temporarily attached to the seabed .
. . .” 43 U.S.C. § 1333(a)(1). However, “[t]o the extent that they
are applicable and not inconsistent with . . . other Federal laws
. . . , the civil and criminal laws of each adjacent State . . .
are declared to be the law of the United States for that portion
of the subsoil and seabed of the outer Continental Shelf, and . .
8

. fixed structures erected thereon . . . .” § 1333(a)(2)(A); see
also Hefren v. McDermott, Inc., 820 F.3d 767, 771 (5th Cir. 2016)
(citing Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558,
560 (5th Cir. 2003)); Pitre v. Aries Marine Corp., No. 15-1654,
2016 WL 952251 (E.D. La. Mar. 14, 2016). Both parties agree that,
by virtue of the OCSLA, this case is governed by Louisiana law.
Rec. Docs. 28-1 at 15; 49 at 4-5.
Pursuant to Louisiana Civil Code article 2315, “[e]very act
whatever of man that causes damage to another obliges him by whose
fault it happened to repair it.” LA. CIV. CODE. ANN. art. 2315(A).
Louisiana courts use a duty-risk analysis to determine whether to
impose liability under article 2315. Flipping v. JWH Props., LLC,
50,648, p. 11 (La. App. 2 Cir. 6/8/16); 196 So. 3d 149, 156.
Accordingly, a plaintiff must prove:
(1) The defendant had a duty to conform his or her
conduct to a specific standard of care (the duty
element); (2) the defendant failed to conform his or her
conduct to the appropriate standard of care (the breach
of duty 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 protection element); and (5)
actual damages (the damage element).
Id. (citing Pinsonneault v. Merch. & Farmers Bank & Tr. Co., 012217 (La. 4/3/02); 816 So. 2d 270; Pamplin v. Bossier Par. Cmty.
Coll., 38,533 (La. App. 2 Cir. 7/14/04); 878 So. 2d 889, writ

9

denied 04-2310 (La. 1/14/05); 889 So. 2d 266); see also Pitre v.
La. Tech Univ., 95-1466 (La. 5/10/96); 673 So. 2d 585.
Regarding the duty element, “summary judgment is proper . .
. only when it is clear no duty exists as a matter of law; and,
the facts or credibility of witnesses are not in dispute.” Parish
v. L.M. Daigle Oil Co., Inc., 98-1716, pp. 2-3 (La. Ap. 3 Cir.
6/23/99); 742 So. 2d 18, 20 (citing Self v. Walker Oldsmobile Co.,
Inc., 614 So. 2d 1371 (La. App. 3 Cir. 1993) (citing Coates v.
Nettles, 563 So. 2d 1257 (La. App. 1 Cir. 1990))). Nevertheless,
“Defendants generally have no duty to protect against an open and
obvious hazard,” because the allegedly hazardous condition “may
not be unreasonably dangerous, and the defendant may owe no duty
to the plaintiff.” Flipping, 50,648, p. 12; 196 So. 3d at 156
(citing Broussard v. State ex rel. Office of State Bldgs., 12-1238
(La. 4/5/13); 113 So. 3d 175; Dauzat v. Curnest Guillot Logging,
Inc., 08-0528 (La. 12/2/08); 995 So. 2d 1184; Dowdy v. City of
Monroe, 46,693 (La. App. 2 Cir. 11/2/11); 78 So. 3d 791). To
determine if a condition is “unreasonably dangerous,” Louisiana
courts use a four-part risk-utility balancing test that considers
“(1) the utility of the complained-of condition; (2) the likelihood
and

magnitude

of

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.” Dauzat, 0810

0528,

p.

5;

995

So.

2d

at

1186-87

(emphasis

added)

(citing

Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p.
9 (La. 2/20/04); 866 So. 2d 228, 235; Ardoin v. Lewisburg, 07-180
(La. App. 3 Cir. 7/18/07); 963 So. 2d 1049.
Here, the issue on summary judgment concerns the second factor
in the risk-utility balancing test and accordingly the duty element
in a Louisiana court’s duty-risk analysis. Turning to the arguments
made by the parties, Defendant primarily cites three cases in
support of its motion for summary judgment and Plaintiff attempts
to distinguish each of those cases.
First, Defendant relies heavily on Fluence v. Marshall Bros.
Lincoln-Mercury Inc., 10-482 (La. App. 5 Cir. 11/23/10); 54 So. 3d
711. In that case,
district

court’s

the Louisiana Fifth Circuit

grant

of

summary

judgment

in

affirmed the
favor

of

the

defendants where the plaintiff fell into a four-foot-deep hole as
he was moving backward to smooth freshly-poured asphalt. Id. at p.
8; 715. Plaintiff admitted that he saw the open drain earlier in
the day and the purpose of his “presence at the site was to repair
the open trenches . . . .” Id.
Here, Defendant argues that “Plaintiff’s subjective ignorance
of the presence of the rope in the walkway is no defense to this
Motion, even if it was due, as in Fluence, to the discharge of his
job duties.” Rec. Doc. 28-1 at 19. Plaintiff, argues that, unlike
in Fluence, Defendant is not a landowner, so its duty to Plaintiff
11

is

substantially

different.

Rec.

Doc.

49

at

10.8

Plaintiff

continues, “[t]his is not akin to a contractor coming onto a
landowner’s property specifically to pave around a drainage system
and then fall into that same drainage system that he observed
earlier in the day. Bilfinger contemporaneously created this trap
for Bonin.” Id. While we recognize the differences between Fluence
and the instant case, including the fact that the Fluence plaintiff
had seen the hole earlier in the day while the instant Plaintiff
had

not

seen

similarities:

the

rope

prior

to

his

accident,

there

are

neither plaintiff saw the hazard immediately before

tripping and both plaintiffs were performing work in a type of
construction zone or work area.
Second, Defendant cites to Rutledge v. Brookshire Grocery
Co., 523 So. 2d 914 (La. App. 3d Cir. 1988). The Louisiana Third
Circuit in Rutledge affirmed the district court’s judgment on a
jury verdict for the defendant store owner where the plaintiff
slipped and fell on a tomato in the store parking lot. Id. at 915.
During the trial, the plaintiff claimed that he was talking to his

Specifically, the Fluence court relied on the Dauzat court’s finding that “a
landowner owes a duty to a plaintiff to discover any unreasonably dangerous
conditions and to either correct the condition or warn of its existence.”
Fluence, at p. 7; 714 (quoting Dauzat, at p. 4; 1186). Plaintiff seems to
maintain that Bilfinger’s duty as a co-contractor was to not leave “a rope in
a walkway area where individuals working aboard [the platform] would be expected
to walk.” Rec. Doc. 49 at 10 (citing Rec. Docs. 49-1, 49-2, excerpts from the
deposition transcripts of Plaintiff and Mr. Weber). It is unclear from
Plaintiff’s memorandum how a landowner’s duty is materially different from that
of a co-contractor, but we recognize that Fluence involved a defendant landowner
and injuries caused by a hole created by a co-contractor, whereas this case
involves a defendant co-contractor and injuries caused by that co-contractor.
8

12

father when he stepped out of his vehicle, so he did not see the
tomato on the ground. Id. On appeal, the plaintiff asserted four
assignments of error, including an assertion that the trial court
improperly instructed the jury. Id. The appellate court agreed
that the jury instructions used were erroneous, but, instead of
remanding the case, the court proceeded to consider the merits.
Id. at 917. The court affirmed, resting primarily on the finding
that the defendant produced sufficient evidence of its cleanup
procedures to rebut the presumption of negligence. Id. at 918.
Defendant cited to the case as support for the proposition
that Plaintiff’s prior knowledge of the hazardous condition “is
not required to bar his/her claim under an ‘Open and Obvious’
defense.” Rec. Doc. 28-1 at 19. Plaintiff argues that the takeaway
“from Rutledge is that a presumption of negligence against a
storeowner arises when a patron proves they slipped on an object
in the store, which then shifts the burden to the storeowner to
show that they took reasonably prudent steps to keep their walk
areas free and clear of hazards.” Rec. Doc. 49 at 12. We agree
with

Plaintiff’s

assessment

of

that

case.

Plus,

despite

Defendant’s assertions, the court’s finding that “the plaintiff
did not use reasonable care to see and avoid obvious hazards
located in the parking lot” was not the primary basis for the
court’s decision. Rutledge, 523 So. 2d at 918. In so finding, the

13

court even noted that they were making the finding “(although it
is not necessary for us to do so) . . . .” Id.9
Third, Defendant relies on Wallace v. Treasure Chest Casino,
L.L.C., 05-484 (La. App. 5 Cir. 12/27/05); 920 So. 2d 251. In that
case, the plaintiff was injured when she “fell as a result of
‘misleveling’ between the elevator car and the casino floor.” Id.
at p. 2; 253. The defendant moved for summary judgment, arguing
that the “misleveled” elevator was an open and obvious hazard,
especially considering that a videotape showed that the elevator
“stopped at the floor, the doors then partially opened, and, after
about eight seconds, [the plaintiff] put her hands into the opening
and pried the doors open so that she could enter the elevator.”
Id. at p. 8; 256. The trial court granted the motion and the
appellate court affirmed, finding that there was an absence of
factual support for the duty element of the plaintiff’s claim. Id.
at p. 9; 257.
Plaintiff distinguishes this case by arguing that he “was not
aware of a hazardous situation like the plaintiff in Wallace. To
the contrary . . . [h]e had no reason to know or suspect that
Bilfinger had created a trap for him by leaving the rope in the
Nonetheless, it appears to be true that a Louisiana court may find a hazardous
condition to be open and obvious, even if the injured party did not previously
see the condition. See, e.g. Gustafson v. Priority Elec., Inc., 13-1096, pp. 56 (La. App. 1 Cir. 2/18/14); 2014 WL 647704, at *5-6 (where the plaintiff
admitted she was walking backwards when she tripped over a stub-out and
plaintiffs failed to show that anyone else ever tripped over the stub-out or to
offer expert testimony showing that the stub-outs posed an unreasonable risk of
harm).
9

14

walkway.”

Rec.

Doc.

49

at

13.

While

the

instant

case

is

distinguishable, insofar as there was no object obstructing the
walkway that Plaintiff had to move or pry open in order to enter
the path on which the rope was located, Plaintiff overstates his
case when he says he had “no reason to . . . suspect that Bilfinger
had created a trap for him . . . .” Id. First, Plaintiff knew that
the Bilfinger crew was performing work in the area; second,
Plaintiff is claiming that Defendant is liable for negligence, not
intentional misconduct.
Based solely on the cases already discussed, Plaintiff could
be correct that “a fact-finder may conclude that an open and
obvious condition does not present an unreasonable risk of harm.
(Or the fact-finder may conclude that the condition does present
an unreasonable risk of harm.)” Jimenez v. Omni Royal Orleans
Hotel, 10-1647, p. 8 (La. App. 4 Cir. 5/18/11); 66 So. 3d 528, 533
(internal citations omitted). Before reaching a decision, however,
we will consider the arguments made in conjunction with Plaintiff’s
motion for partial summary judgment.
C.
As

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
discussed

above,

this

Court

will

determine

whether

liability attaches according to Louisiana’s duty/risk analysis and
corresponding elements. See Rec. Doc. 43-1 at 8; 43 U.S.C. § 1333;
LA. CIV. CODE ANN. art. 2315; Flipping, 50,648, p. 11; 196 So. 3d at

15

156; see also Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7
(La. 3/10/06); 923 So. 2d 627, 633.
First, we will consider Plaintiff’s argument that Bilfinger
owed a duty of care to Plaintiff as a matter of law. “An independent
contractor

owes

reasonable

care.”

its

fellow

Stokes

v.

contractors

a

duty

Freeport-McMoran,

to

Inc.,

exercise
2015

WL

8276240 at *3 (E.D. La. Dec. 7, 2015) (citing Joyner v. Ensco
Offshore Co., 2001 WL 118599, at *3 (E.D. La. Feb. 9, 2001) (noting
that “The Louisiana First Circuit Court of Appeal has set forth
the range of duties imposed upon co-independent contractors as
follows:

‘at the very least, [an independent contractor] owe[s]

[a fellow independent contractor] the duty to refrain from gross,
willful or wanton negligence, and at the most the duty to refrain
from

creating

an

unreasonable

risk

of

harm

or

a

hazardous

condition.’”).
Thus, the duty imposed upon Bilfinger would generally be the
duty imposed on all persons, the exercise of reasonable care.
Joyner, 2001 WL 118599, at *3. However, Plaintiff’s memorandum in
support of his motion for partial summary judgment fails to address
the argument Bilfinger made in its motion for summary judgment:
namely that Bilfinger did not owe a duty of care to protect
Plaintiff from an open and obvious hazard that is not unreasonably
dangerous. Consequently, Defendant’s memorandum in opposition to
Plaintiff’s motion essentially re-urges the arguments it made in
16

its motion for summary judgment (see Rec. Doc. 47 at 3-5) and we
must determine if the rope amounted to an open and obvious hazard,
such that Defendant Bilfinger owed no duty to Plaintiff.
In trying to find cases with analogous facts, this Court
discovered Smalley v. Ransonet, 13-522 (La. App. 3 Cir. 11/6/13);
2013 WL 5951509 (unpublished). In Smalley, the Third Circuit of
Louisiana affirmed the trial court’s summary judgment finding that
the presence of an iron garden rake did not present an unreasonably
dangerous

situation.

Specifically,

the

court

noted

that

the

plaintiff was aware that tools were kept in the area and she had
seen the rake in the area before. Id. at *3. “The rake was leaning
against the shed and should have been obvious to someone paying
attention. [Plaintiff] chose to bend down to pick up a cigarette
butt and should have been more cautious in this small area where
she knew tools were kept.” Id.
Like in Fluence and the instant case, the plaintiff in Smalley
did not see the hazardous condition immediately before injuring
him/herself. However, unlike in Fluence and Smalley, Plaintiff in
the instant action did not admit to seeing the hazardous condition
on

an

earlier

occasion.

This

fact,

alone,

distinguishes

Plaintiff’s case from several cases applying the open and obvious
doctrine. See, e.g. Wilder v. Pilot Travel Ctrs., LLC, 11-0453
(La. App. 1 Cir. 11/9/11); 2011 WL 5412962 (the appellate court
affirmed the trial court’s grant of summary judgment in favor of
17

the defendant gas station where the gas station used a pressure
hose and a cleaning solution to clean cement slabs and plaintiff
walked through the mixture twice before slipping and falling);
Abolofia v. Bd. of Supervisors of La. State Univ. & Agric. & Mech.
Coll., 14-0593 (La. App. 1 Cir. 1/27/15); 2015 WL 782831 (where
the plaintiff admitted to seeing the hazardous condition and the
appellate court still reversed and remanded the trial court’s grant
of summary judgment in favor of the defendant because the condition
might have presented an unreasonable risk of harm).
Plus, while the photographs might suggest that the rope was
open and obvious, there is also evidence that the rope could not
be seen from the north stair tower because of a large column and
other equipment obstructing a person’s view. See Rec. Docs. 28-1
at 11; 65-1 at 4-5; 6-8. Thus, there is conflicting evidence and
a

reasonable

jury

could

return

a

verdict

for

either

party.

Consequently, summary judgment is inappropriate. See Anderson, 477
U.S. at 248; Deville, 567 F.3d at 164; Parish, 98-1716, pp. 2-3;
742 So. 2d at 20 (“summary judgment is proper . . . only when it
is clear no duty exists as a matter of law; and, the facts or
credibility of witnesses are not in dispute”).
We cannot conclude that the rope was not open and obvious, so
we

cannot

Plaintiff

conclude
and

we

that

will

Defendant

not

address

Bilfinger breached such duty.
18

Bilfinger

owed

Plaintiff’s

a

duty

argument

to

that

IV.

CONCLUSION

After reviewing the case law, including cases not cited by
either party, we find that a genuine issue of material fact exists
as to whether or not the rope created a hazard that was “open and
obvious” to all and therefore whether or not Defendant Bilfinger
owed a duty of reasonable care to Plaintiff.
New Orleans, Louisiana, this 16th day of December, 2016.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

19