Belanger v. McDermott International et al

Filing 28

MEMORANDUM OPINION AND ORDER denying 23 Defendants' MOTION for Summary Judgment. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

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§
Plaintiff,
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§
VS.
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MCDERMOTT INTERNATIONAL, et al., §
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Defendants.
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July 29, 2022
Nathan Ochsner, Clerk

TODD MICHAEL BELANGER,

CIVIL ACTION NO. 4:20-CV-04089

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
Pending before the Court is the defendants’, McDermott International, J Ray

McDermott Inc., J Ray McDermott SA, and McDermott Inc. (together, the defendants),
motion for summary judgment (Dkt. No. 23). The plaintiff, Todd Michael Belanger, has
filed a response to the defendants’ motion (Dkt. No. 24), and the defendants have not filed
a reply. After reviewing the parties’ submissions, the record, and the applicable law, the
Court determines that the defendants’ motion should be DENIED.
II.

FACTUAL BACKGROUND
This lawsuit arises out of a maritime injury suffered by the plaintiff while employed

by the defendants in the United Arab Emirates. At that time, the plaintiff was working as
an electrical and mechanical technician on the M/V Amazon, an underwater pipelaying

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vessel operated by the defendants.1

The plaintiff’s duties involved performing

maintenance on the large mechanical cranes that were connected to the vessel.
On March 24, 2018, the plaintiff was injured on the M/V Amazon while attempting
to exit a narrow crawl space inside the “crane tub,” a section of the vessel that housed one
of its large cranes. He had entered the crane tub in order to obtain an oil sample from the
crane’s gearbox. To do so, he had to crawl inside the narrow space underneath the gearbox
and lie down supine. When the plaintiff entered the crane tub to perform the task, a
partially-coiled air hose was leaning against the bulkhead,2 near where the plaintiff’s feet
were while taking the sample. The defendants’ investigative report concerning the accident
showed the air hose lying flat on the floor. However, according to the deposition testimony
of the plaintiff and his superintendent, prior to the accident the hose was not lying flat on
the floor or obstructing access to the crawl space. After obtaining the sample, as the
plaintiff stood up, he slipped on a “whip check”3 that was connected to the air hose and fell
backward, injuring his lower back and buttock upon landing.
On December 2, 2020, the plaintiff sued the defendants in this Court under admiralty
jurisdiction, asserting claims for maritime negligence under the federal Jones Act 4 and

1

The plaintiff is a resident and citizen of Louisiana. While the defendants are non-Texas corporations,
McDermott International has its headquarters in Houston, Texas. It is alleged that the other defendants
conduct continuous and systematic business activities in Texas.
A “bulkhead” of a ship refers to an upright partition that separates the ship’s compartments. Bulkhead,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE (1993).
2

A “whip check” is a safety cable that connects two sections of a hose in order to prevent the sections from
flying around in the event they become disconnected.
Whip check, Corrosionpedia,
https://www.corrosionpedia.com/definition/6124/whip-check (June 19, 2020).
3

4

46 U.S.C. § 30104 et seq.

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unseaworthiness of the defendants’ vessel. The defendants timely filed the present
summary judgment motion, and the plaintiff has filed a response.
III.

CONTENTIONS OF THE PARTIES
The defendants contend that the plaintiff either recognized, or should have

recognized, the air hose as a slip-and-fall hazard and was negligent in failing to move the
air hose to allow unobstructed access to the crawl space. According to the defendants, the
plaintiff’s inaction amounts to contributory negligence, which they allege was the sole
proximate cause of his accident. The Court understands the defendants to make the same
argument as to the plaintiff’s claim of an unseaworthy vessel.
According to the plaintiff, the evidence does not establish that the position of the air
hose created a slip-and-fall hazard that he should have removed. Rather, the plaintiff
contends, the failure of the defendants’ crew to properly coil, secure, and store the air hose
caused the hose’s whip check to come unwound and, thus, created the slipping hazard that
caused his injuries. The plaintiff maintains that a factual dispute exists as to how, when,
and why the whip check came unwound from the hose; therefore, the defendants cannot
establish that the plaintiff’s sole negligence caused his injuries. Relatedly, the plaintiff
argues that a triable fact issue exists as to the vessel’s seaworthiness because there is
evidence that the defendants’ crew violated standard safety procedures and failed to
properly secure the air hose against the bulkhead.

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IV.

STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment

against a party who fails to make a sufficient showing of the existence of an element
essential to the party’s case and on which that party bears the burden at trial. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc). The movant bears the initial burden of “informing the Court of
the basis of its motion” and identifying those portions of the record “which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; see
also Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th Cir. 2003). Summary
judgment is appropriate where the pleadings, the discovery and disclosure materials on file,
and any affidavits show that “there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
If the movant meets its burden, the burden then shifts to the nonmovant to “go
beyond the pleadings and designate specific facts showing that there is a genuine issue for
trial.” Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996). “To meet this burden, the
nonmovant must ‘identify specific evidence in the record and articulate the ‘precise
manner’ in which that evidence support[s] [its] claim[s].’” Id. (internal citations omitted).
It may not satisfy its burden “with some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”
Little, 37 F.3d at 1075 (internal quotation marks and citations omitted). Instead, it “must
set forth specific facts showing the existence of a ‘genuine’ issue concerning every
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essential component of its case.” American Eagle Airlines, Inc. v. Air Line Pilots Ass'n,
Intern., 343 F.3d 401, 405 (5th Cir. 2003).
“A fact is material only if its resolution would affect the outcome of the action, . . .
and an issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a
verdict for the [nonmovant].’” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210
(5th Cir. 2009) (internal citations omitted). When determining whether a genuine issue of
material fact has been established, a reviewing court is required to construe “all facts and
inferences . . . in the light most favorable to the [nonmovant].” Boudreaux v. Swift Transp.
Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (citing Armstrong v. Am. Home Shield Corp.,
333 F.3d 566, 568 (5th Cir. 2003)). Likewise, all “factual controversies [are to be resolved]
in favor of the [nonmovant], but only where there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.” Boudreaux, 402 F.3d at
540 (citing Little, 37 F.3d at 1075 (emphasis omitted)). Nonetheless, a reviewing court is
not permitted to “weigh the evidence or evaluate the credibility of witnesses.” Boudreaux,
402 F.3d at 540 (quoting Morris, 144 F.3d at 380). Thus, “[t]he appropriate inquiry [on
summary judgment] is ‘whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.’” Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52, (1986)).

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V.

ANALYSIS & DISCUSSION
The defendants move for summary judgment on the plaintiff’s Jones Act negligence

claim and his unseaworthiness claim. The Court addresses these claims in turn.
A.

The Jones Act Negligence Claim

Under the Jones Act, the employer’s duty of care “retains the usual and familiar
definition of ordinary prudence.” Gautreaux v. Scurlock Marine, Inc. (Gautreaux II), 107
F.3d 331, 335 (5th Cir. 1997) (en banc). “A seaman is entitled to recovery under the Jones
Act . . . if his employer’s negligence is the cause, in whole or in part, of his injury.” Id.;
Brister v. A. W.I., Inc., 946 F.2d 350, 354 (5th Cir.1991) (“If the defendant’s negligence
played any part, however small, in producing the seaman’s injury, it results in liability.”).
And while a seaman must also act with ordinary prudence under the Jones Act, a seaman’s
“contributory negligence does not bar recovery[.]” Gavagan v. United States, 955 F.2d
1016, 1019, n.7 (5th Cir. 1992). Instead, it is “an affirmative defense that diminishes
recovery in proportion to the seaman’s fault.” Johnson v. Cenac Towing, Inc., 544 F.3d
296, 302 (5th Cir. 2008).
The defendants claim that the plaintiff’s sole negligence caused his injuries, thereby
barring his suit. They note that, pursuant to their internal policies, the plaintiff was required
to keep his workspace organized and uncluttered. Additionally, they cite the plaintiff’s
deposition testimony that (1) the air hose was located generally near his feet while he was
working, (2) in hindsight, it could have been considered a tripping hazard, and (3) he could
have moved it out of the way prior to beginning his work.
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The Court determines that the plaintiff has created a triable issue of fact concerning
whether and how the air hose posed a hazard prior to the accident. The plaintiff and his
superintendent provided deposition testimony that, initially, the hose was neither lying on
the floor, nor obstructing access to the crawl space. The plaintiff’s crewmates also testified
that they merely estimated the hose’s position for purposes of the accident report photos.
Further, there is evidence that the hose was not completely coiled or secured in a manner
that would have prevented the whip check from becoming unwound from the hose.
As proof that the plaintiff recognized and ignored the hazard presented by the hose,
the defendants note that, prior to beginning work, the plaintiff signed a “HIT” card5
identifying a slip-and-fall hazard in the “work area.”

However, the plaintiff’s

superintendent testified that the HIT card covered the vessel’s entire “main deck level,”
not merely the crane tub where the accident occurred. Another crewmate testified that the
HIT card actually addressed the condition of a room located beneath the crane tub. Thus,
a reasonable jury could conclude that the plaintiff did not understand the slip-and-fall
hazard documented on the HIT card to refer to the position of the air hose in the crane tub.
Based on the foregoing, the defendants have not established that the plaintiff’s
contributory negligence, alone, caused his injuries as a matter of law. Their summary
judgment motion should, therefore, be denied.

The defendants’ risk assessment procedures required vessel personnel to complete a Hazard Identification
Tool (“HIT”) card prior to starting work to identify possible hazards and methods to reduce those hazards.
5

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B.

The Unseaworthiness Claim

“General maritime law imposes a duty upon shipowners to provide a seaworthy
vessel.” Luwisch v. American Marine Corp., 956 F.3d 320, 326 (5th Cir. 2020) (internal
citations omitted). Conditions that may render a vessel unseaworthy include defective gear,
an unsafe work method, an unfit crew, and improper loading or storage of cargo. Rogers
v. Eagle Offshore Drilling Serv.’s, Inc., 764 F.2d 300, 303 (5th Cir. 1985). “Liability under
the doctrine of unseaworthiness does not rest upon fault or negligence.” Id. (quoting
Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 1988)). Instead, “a
plaintiff must prove that the unseaworthy condition played a substantial part in bringing
about or actually causing [an] injury and that the injury was either a direct result or a
reasonably probable consequence of the unseaworthiness.” Id. See also Brister, 946 F.2d
at 355 (“Also in contrast to a Jones Act claim, the standard of causation for unseaworthiness
is a more demanding one and requires proof of proximate cause.” (internal quotations and
citation omitted)).
In seeking summary judgment on the plaintiff’s unseaworthiness claim, the
defendants reiterate the same arguments recounted above. In response, the plaintiff cites
evidence that the vessel’s crew violated the defendants’ active safety procedures by failing
to complete a hazard assessment (i.e., a HIT card) for the crane tub as a separate work area.
The HIT card that was completed did not indicate either that the air hose inside the crane
tub was improperly stored or that the whip check was unsecured to the air hose. When
viewed together, the plaintiff’s evidence could lead a reasonable jury to find that an unsafe
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work method on the defendants’ vessel caused or contributed to the plaintiff’s injuries. The
Court determines that the plaintiff has established genuine issues for trial concerning his
unseaworthiness claim.

Consequently, the defendants are not entitled to summary

judgment on this claim.
V.

CONCLUSION
Based on the foregoing analysis and discussion, the defendants’ motion for

summary judgment is DENIED.
IT IS SO ORDERED.
SIGNED on July 29, 2022, at Houston, Texas.

_______________________________
Kenneth M. Hoyt
United States District Judge

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