Whittine v. Anadarko Petroleum Corporation, et al

Filing 61

ORDER denying 45 Dolphin's Motion for Summary Judgment regarding claims filed by Whittine. Signed by Judge Nannette Jolivette Brown on 5/10/18. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS WHITTINE

CIVIL ACTION

VERSUS

NO. 16-15761

ANADARKO PETROLEUM CORPORATION, et al.

SECTION: “G”(2)

ORDER
In this litigation, Plaintiff Nicholas Whittine (“Plaintiff”) filed suit against Anadarko
Petroleum Corporation (“Anadarko”) and Dolphin Services, LLC (“Dolphin”) for injuries he
allegedly sustained while working on a floating oil production platform, the CONSTITUTION
Spar.1 Pending before the Court is Dolphin’s “Motion for Summary Judgment Regarding the
Claims Filed By Nicholas Whittine.”2 Having considered the motion, the memoranda in support
and in opposition, the record, and the applicable law, the Court will deny the motion for summary
judgment.
I. Background
On October 21, 2016, Plaintiff filed a complaint against Anadarko and Dolphin, in which
Plaintiff alleges he sustained serious and grave bodily injury while working aboard the
CONSTITUTION Spar as a blaster/painter.3 Plaintiff asserts he was employed as a blaster/painter
with Omni Energy Services (“Omni”) to work on the CONSTITUTION Spar, a floating oil

1

Rec. Doc. 1.

2

Rec. Doc. 45.

3

Rec. Doc. 1. 

1 

production platform owned and operated by Anadarko.4 Plaintiff alleges that on December 14,
2015, he stepped on a piece of fiberglass grating that was not properly affixed to the underlying
frame, causing the grating to shift and resulting in Plaintiff falling through the grating and severely
injuring himself.5 In the Complaint, Plaintiff alleges that Dolphin was responsible for the grating
and welding work on the CONSTITUTION Spar at the time of the incident.6
On April 9, 2018, Dolphin filed the instant “Motion for Summary Judgment Regarding the
Claims Filed By Nicholas Whittine.”7 On April 23, 2018, Anadarko filed a Memorandum in
Opposition.8 Plaintiff did not file an opposition.
II. Parties’ Arguments
A.

Dolphin’s Arguments in Support of Summary Judgment
Dolphin argues that it is entitled to summary judgment as a matter of law because Dolphin

asserts it did not owe a duty to inspect the grating or the area around it, where Plaintiff allegedly
fell and was injured.9 Dolphin argues that the deposition testimony of Anadarko’s Offshore
Installation Manager (“OIM”), Jeff LeBlanc, proves that the grating was properly fastened the
evening before Plaintiff’s accident and asserts that Dolphin would have been unable to inspect said
grating because Omni barricaded that area and posted a watchman to prevent others from

4

Id. at 2–3.

5

Id. at 3.

6

Id. at 3–4.

7

Rec. Doc. 45.

8

Rec. Doc. 56.

9

Rec. Doc. 45-1 at 6.

2 

entering.10 Dolphin further asserts that Plaintiff testified in his deposition that he did not see
Dolphin employees touch the grating or walk near the area surrounding it.11 Dolphin also posits
that on the day of the accident, although the Dolphin crew was on the platform, the crew was
working to remove a balance pump.12 Dolphin points to LeBlanc’s deposition testimony, where
the Anadarko OIM testified that the Dolphin crew did not work in the area surrounding the grating
on the day before the accident.13 Dolphin does admit that after the accident, Dolphin was called in
by Anadarko to repair the grating.14
Dolphin also points to the deposition testimony of Dolphin representative, Dwayne Knight,
who allegedly provided a list of all material that had been purchased for Dolphin’s work on the
CONSTITUTION. 15 Dolphin alleges that the list shows that from January 6, 2015, to December
31, 2016, the only grating purchased by Dolphin was purchased after Plaintiff’s accident.16
B.

Anadarko’s Arguments in Opposition
In opposition, Anadarko argues that there exists a question of material fact that precludes

the granting of Dolphin’s motion for summary judgment.17 Anadarko asserts that Plaintiff’s
deposition testimony shows that Omni employees do not move grating when blasting or painting,
but, if removing the grating becomes necessary, the Omni supervisor would call the Anadarko

10

Id.

11

Id. at 4–5.

12

Id. at 4.

13

Id. at 5.

14

Id. at 4.

15

Id. at 5.

16

Id.

17

Rec. Doc. 56 at 1–2.

3 

OIM, who would call the construction contractor working aboard the platform to have the grating
removed and then later reinstalled.18 According to Anadarko, LeBlanc, the Anadarko OIM,
testified that although he does not remember Dolphin being asked to pull the grating, Dolphin
would have been the contractor who reinstalled the grating.19 Anadarko alleges that if the accident
occurred as the Plaintiff alleged, then alleged Dolphin’s replacement of the grating, which would
have occurred prior to Plaintiff’s accident, caused the unsafe condition that gave rise to Plaintiff
accident.20
III. Legal Standard
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits
show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”21 When assessing whether a dispute as to any material fact exists, a court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”22 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.”23
If the record, as a whole, could not lead a rational trier of fact to find for the nonmoving party,

18

Id. at 2.

19

Id.

20

Id. at 3.

21

Fed. R.Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322B23 (1986); Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994).

22

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398B99 (5th Cir. 2008).

23

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

4 

then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law.24
On a motion for summary judgment, the moving party bears the initial burden of
identifying those portions of the record that it believes demonstrate the absence of a genuine issue
of material fact.25 “To satisfy this burden, the movant may either (1) submit evidentiary documents
that negate the existence of some material element of the opponent’s claim or defense, or (2) if the
crucial issue is one on which the opponent will bear the ultimate burden of proof at trial,
demonstrate that the evidence in the record insufficiently supports an essential element of the
opponent’s claim or defense.”26 If the moving party satisfies its initial burden, the burden shifts to
the nonmoving party to “identify specific evidence in the record, and articulate” precisely how that
evidence supports his claims.27 In doing so, the nonmoving party may not rest upon mere
allegations or denials in its pleadings, but rather must set forth “specific facts showing the existence
of a ‘genuine’ issue concerning every essential component of its case.”28 The nonmovant=s burden
of demonstrating a genuine issue of material fact is not satisfied merely by creating “some
metaphysical doubt as to the material facts,” “by conclusory allegations,” by “unsubstantiated

24

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

25

Celotex, 477 U.S. at 323.

26

Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (citing Little v. Liquid Air Corp., 939 F.2d 1293,
1299 (5th Cir. 1991)).

27

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

28

Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992); see also Bellard v. Gautreaux,
675 F.3d 454, 460 (5th Cir. 2012).

5 

assertions,” or “by only a scintilla of evidence.”29 There is no genuine issue for trial “unless there
is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”30
Furthermore, it is well-established that “[u]nauthenticated documents are improper as summary
judgment evidence.”31
IV. Analysis
Dolphin contends it is entitled to summary judgment because Dolphin alleges that it did
not owe Plaintiff a duty as there is no evidence that any Dolphin employee touched or worked on
the specific area of grating at issue in this case. In opposition, Anadarko argues that the deposition
testimony of both Plaintiff’s and the Anadarko OIM raise genuine questions of material fact as to
Dolphin’s involvement in replacing the grating that Plaintiff allegedly fell through.
Article 2315 of the Louisiana Civil Code establishes a general cause of action for
negligence: “[e]very act whatever of man that causes damage to another obliges him by whose
fault it happened to repair it.”32 In determining whether to impose liability under Article 2315,
Louisiana courts employ a duty-risk analysis, whereby a plaintiff must establish the following five
elements: “(1) the defendant had a duty to conform his conduct to a specific standard (the duty
element); (2) the defendant’s conduct failed to conform to the appropriate standard (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

29

Little, 37 F.3d at 1075.

30

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 288B89 (1968)).

31

King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).

32

 Both parties agree, and the Court previously decided, that Louisiana substantive law governs this dispute, pursuant
to the Outer Continental Shelf Lands Act.  

6 

injuries (the scope of liability or scope of protection element); and (5) the actual damages (the
damages element).”33
Under Louisiana law, determining the scope of a duty is “ultimately a question of policy
as to whether the particular risk falls within the scope of the duty.”34 There “must be an ease of
association between the rule of conduct, the risk of injury, and the loss to be recovered.”35 That
inquiry typically requires consideration of the facts of each case.36 While the existence of a duty
under Louisiana law is a question of law, it requires an analysis of the particular facts of each
case.37
The parties dispute whether any Dolphin employee ever worked on the grating at issue in
this case, and specifically, whether Dolphin removed or replaced the grating when the prior Omni
crew primed the grating. In his deposition, Plaintiff definitively stated that Omni employees never
remove fiberglass grating.38 However, Plaintiff testified that if moving the grating is required to
complete the job, the Omni crew informs the platform supervisor, who works with the construction
contractor to remove and then later reinstall the grating.39 LeBlanc, the Anadarko OIM, testified
that if the grating had been removed and reinstalled during the priming process, Dolphin would

33

Audler v. CBC Innovis Inc., 519 F.3d 239, 249 (5th Cir. 2008); Lemann v. Essen Lane Daiquiris, 2005–1095 (La.
2006); 923 So. 2d 627, 633; Long v. State ex rel. Dept. of Transp. and Dev., 2004–0485 (La. 2005); 916 So. 2d 87,
101.
34

Roberts v. Benoit, 605 So.2d 1032, 1044 (La. 1991).

35

Maw Enterprises, L.L.C. v. City of Marksville, 2014-0090 (La. 9/3/14); 149 So. 3d 210, 217.

36

Ellison v. Conoco, Inc., 950 F.2d 1196, 1205 (5th Cir. 1992).

37

Id.

38

Rec. Doc. 43-2 at 25–26.

39

 Id. 

7 

have been the contractor to handle it.40 However, LeBlanc also testified that he had “no recollection
that Dolphin was pulling grating.”41 Last, LeBlanc also stated that on the day preceding Plaintiff’s
accident, Dolphin did not work in the area where Plaintiff fell and that on the evening prior to the
accident, the grating was allegedly secure.42
Therefore, there remains a genuine dispute of material fact as to Dolphin’s role in moving
and reinstalling the grating through which Plaintiff allegedly fell. Accordingly, the Court will deny
the motion for summary judgment.
V. Conclusion
Based on the foregoing and considering there exists questions of material fact;
IT IS HEREBY ORDERED that Dolphin Services, L.L.C.’s Motion for Summary
Judgment Regarding the Claim Filed By Nicholas Whittine 43 IS DENIED.

NEW ORLEANS, LOUISIANA, this 10th day of May, 2018.

_____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

40

Rec. Doc. 56-1 at 37–38. 

41

Rec. Doc. 45-7 at 37.

42

Id. at 42–43.

43

Rec. Doc. 45.

8