Opinion
CIVIL ACTION NO. 03-92, SECTION "A"(2)
March 22, 2004
Before the Court is a Motion for Summary Judgment (Rec. Doc. 32) filed by defendants Transocean Offshore U.S.A., Inc. and Transocean Offshore Ventures, Inc. ("Transocean"). Plaintiff, Watson Richard, opposes the motion. The motion, set for hearing on March 10, 2004, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED.
BACKGROUND
Watson Richard ("Richard") has brought this suit against Transocean pursuant to 33 U.S.C. § 905(b), commonly referred to as the Longshore Harbor Workers' Compensation Act ("LHWCA") alleging vessel negligence. Transocean was the owner/operator of the rig RATHER, the vessel aboard which Richard was allegedly injured. The following events gave rise to the claim.
On February 7, 2002, Watson Richard ("Richard") was employed by Frank's Casing Crew Rental Tools, Inc. Richard alleges that on February 7, 2002, he sustained a back injury when he slipped in drilling mud while engaged in casing operations aboard the RATHER. Richard was the senior Frank's employee aboard the rig.
At the time of the incident, Richard attempted to lift a safety clamp onto a joint of casing with the assistance of a Transocean roughneck. Richard asserts that when he and the roughneck picked up on the clamp, the roughneck twisted, and Richard's foot slipped out from underneath him. Richard felt a burning pain in his lower back and down his leg and subsequently underwent surgery for his pain. Richard claims that there was a lot of drilling mud where he was standing and that the mud contributed to his fall. Although Richard knew that the mud was present, it did not appear to him to present an unsafe condition. The casing crew, of which Richard was a part, is typically not responsible for clearing drilling mud from the drilling floor.
Transocean argues that Richard cannot make a prima facie case for vessel negligence under 33 U.S.C. § 905 (b) and will be unable to carry his burden of proof at trial. Transocean therefore moves for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 56.
DISCUSSION
1. Summary Judgment Standards
In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non — moving party. Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998)). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, together 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. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's case. Id. (citing Celotex. 477 U.S. at 325, 106 So. Ct. at 2548). If the moving party fails to meet this initial burden, the motion must be denied regardless of the nonmoving party's response.Id.
2. Vessel Negligence
In 1972 Congress amended the LHWCA to clarify that a stevedore's right to recover from a vessel owner is limited to an action based upon negligence — the vessel owner's own negligence. Gravatt v. City of New York. 226 F.3d 108, 119-17 (2d Cir. 2000). InScindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court articulated the scope of the vessel owner's duty pertaining to a § 905(b) negligence claim. According to Scindia, vessel liability to the stevedore can arise in three instances: 1) if the vessel owner fails to warn on turning over the ship of hidden defects of which he should have known ("the turnover duty"), 2) if injury is caused by a hazard under the control of the ship, and 3) if the vessel owner fails to intervene in the stevedore's operations when he has actual knowledge both of the hazard and that the stevedore, in the exercise of "obviously, improvident" judgment, means to work on in the face of it, and therefore cannot be relied upon to remedy it ("duty to intervene"). Greenwood v. Societe Francaise de, 111 F.3d 1239, 1245 (5th Cir. 1997) (citing Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13 (5th Cir. 1992). Absent a breach of one of the threeScindia duties, the vessel owner will not be liable for. the longshoreman's injuries.
The rationale of Scindia is not limited to stevedoring operations. Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982). Rather, it applies to any independent contractor covered by the LHWCA and working aboard a ship. Id.
3. Analysis
a. Turnover Duty
Transocean argues that it could not have breached the turnover duty because that duty pertains to hazards that are not obvious and are unknown to the stevedore. Transocean points out, however, that Richard readily admitted in his deposition that he knew that the mud was on the drilling floor.
In opposition, Richard argues that Transocean breached the turnover duty by failing to clear the drilling mud from the area in which the casing crew was required to work. Richard also argues that the "open and obvious" defense to the turnover duty allegation fails here because it was the negligence of the Transocean employee in "jerking" the clamp that caused Richard to slip. Richard also argues that the drilling mud, although not obviously dangerous at first, continued to accumulate. Moreover, Richard argues that the "open and obvious" defense fails because Richard had no alternative but to continue to work amongst the drilling mud.
The turnover duty requires the vessel owner to turn over the vessel in such a condition that an "expert and experienced" contractor, mindful of the dangers he would ordinarily encounter in the service of the vessel, can carry on operations with reasonable safety. Howlett v. Birkdale Shipping, Co., 512 U.S. 92, 98 (1994) (quoting Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404 (1969)). The duty also requires the vessel owner to warn the contractor of any latent hazards of which the owner knew or should have known. Id. A vessel owner is not, however, liable for obvious dangers unless the contractor would be forced to either leave his job or to face penalties for causing delay. Teply v. Mobil Oil Corp., 859 F.2d 375, 378 (5th Cir. 1988). Absent evidence that the contractor was under specific time or supervisory pressure, he cannot recover for a hazard of which is was fully aware. Id.
The summary judgment evidence belies any argument that Transocean breached the turnover duty. In his deposition testimony, Richard unequivocally acknowledged that he knew that the drilling mud was on the floor. Pla. Depo. at 93. Moreover, Richard admitted that he felt he could safely do this particular job notwithstanding the drilling mud in the area. Id. at 125. It is noteworthy that Richard has been performing casing work for twenty to thirty years and that drilling mud is commonly in the area of casing operations. Id. an 139.
Further, the summary judgment evidence is devoid of anything to suggest that the exception to the "open and obvious" defense applies,i.e., that Richard was under specific time or supervisory pressure. Although Richard asserts that the rig crew was responsible for maintaining the drilling floor, there is no evidence to suggest that he ever asked the rig crew to remedy the mud situation — indeed, he himself did nor: consider the situation unduly hazardous. And Richard's crew had at least a four hour delay from the time they began seating up their equipment to the time they began their operations. This delay belies any assertion that time was an issue working against Richard. TheScindia turnover duty is simply not implicated under the facts of this case.
In an attempt to create an issue of fact, Richard executed an affidavit on February 25, 2004, nearly two weeks after Transocean filed its motion for summary judgment. The affidavit is a blatant attempt to circumvent the fatal aspects of Richard's prior deposition testimony. For instance, Richard asserts that when he stated at his deposition that the work area was safe, what he really meant was that the area was safe when the operation began but that the situation later deteriorated. And although Richard unequivocally stated in his opposition that the Transocean roughneck had done nothing wrong, he now states that he meant that the roughnbeck had done nothing wrong in volunteering to help him. Richard's counsel argues that the Court should not lose sight of the fact that Richard has a fourth grade education.
The law in this circuit is well — settled that a party cannot create an issue of fact by executing an affidavit contrary to his sworn deposition testimony without some justification. Copeland v. Wasserstein, Perella Co., 278 F.3d 472, 482 (5th Cir. 2002) (citing S.W.S. Erectors, Inc. v. Infax, Inc.. 72 F.3d 489, 495 (5th Cir. 1996) ("It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony.")). Richard's deposition was thorough — it comprises 147 pages of testimony, and Richard was accompanied by his lawyer at all times. Thus, Richard's lack of formal education is a wholly inadequate justification for contradicting his former testimony by an affidavit executed after Richard's counsel had the benefit of Transocean's motion for summary judgment.
In his deposition, Richard answered at least twice that in his opinion the Transocean roughneck had done nothing wrong. Pla. depo. at 92, 145. The context in which he answered those questions does not remotely suggest that Richard was attempting to say that the roughneck had done nothing wrong in volunteering to help him in the first place. Further, Richard never stated or even suggested that his statement regarding the safety of the drilling mud situation applied only to the time when operations began. In face, when asked how long into the operation his injury had occurred, Richard replied that he didn't know. Pla. Depo. at 81. He did recall, however, that his injury occurred while attempting to clamp the first joint of casing. Thus, his deposition testimony is not consistent with his more recent assertion that his injury occurred due to a hazardous situation that developed over time after he began his work.
In sum, Richard has failed to create an issue of fact as to any breach of the turnover duty.
b. Active Operations Duty
Transocean argues that it did not owe Richard the active operations duty because Richard's testimony confirms that he and his crew were in control of the area and equipment that they were using. As a result, Transocean no longer had the primary responsibility for safety in the work area. Assuming arguendo that Transocean owed an active operations duty, Transocean argues that it did not breach that duty.
In opposition, Richard argues that the dangerous conditions that caused his injury, i.e., the drilling mud which had accumulated from the drilling operations and the roughneck, were all conditions created by Transocean.
The active operations duty requires the vessel owner to exercise reasonable care to prevent injuries to contractors in areas that remain under the vessel's active control. Manuel v. Cameron Offshore Boats, Inc.. 103 F.3d 31, 34 (5th Cir. 1997) (quoting Howlett. 114 S.Ct. at 2063). This duty recognizes that although a vessel owner no longer retains primary responsibility for safety in a work area turned over to an independent contractor, no such cessation applies in areas or equipment over which the vessel's crew retains operational control.Id. (citing Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13 (5th Cir. 1992); Masinter v. Tenneco. Oil Co.. 867 F.2d 892 (5th Cir. 1989)).
None of the summary judgment evidence suggests that Transocean retained active control over the area where Richard was working. Rather, the evidence is indicative of Transocean's drilling staff stepping aside to allow casing operations to proceed. The only Transocean employee reported to be in the area was the roughneck who Richard said did not cause his injury. There is simply no evidence that Transocean was exercising control over the area when Richard sustained his injury.
In an attempt to create an issue of fact, Richard submitted the affidavit of J. Robert Kubelka, Richard's oil field consultant and expert witness. Kubelka states that it is common knowledge that the oil field driller is in charge of drilling rig floor operations. Pla. Exh. C. This might very well be true but does nothing to create an issue of fact as to whether Transocean was exercising control over the drilling area in this particular case. It simply does not follow from Kubelka's general statement that Transocean was in active control of the work area during the time that Richard sustained his injury. Under the facts of this case, the active operations duty is not implicated.
c. Duty to Intervene
Transocean argues that it had no duty to intervene in Richard's task because he had over twenty years of experience working offshore, admitted that he was used to working in muddy areas on drilling rigs, and because the drilling mud was not so hazardous as to prevent the type of risk required for a duty of intervention to arise.
Richard contends that the duty to intervene was triggered by the excessive accumulation of drilling mud on the drilling floor of which Transocean clearly had knowledge. Richard contends that it should have been obvious to Transocean that Richard and his crew were exercising improvident judgment by working on the muddy drilling floor. Therefore, according to Richard, Transocean had an affirmative duty to intervene and to protect him from his own actions.
It is a fundamental principle of tort law that one cannot be liable for negligence based on a failure to act unless one first has a duty to act.Futo v. Lykes Bros. S.S. Co., 742 F.2d 209, 214 (5th Cir. 1984). The duty to intervene is a narrow one and requires something more than the vessel owner's mere knowledge of a dangerous condition.Singleton v. Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th cir. 1996). The duty to intervene is triggered where the vessel owner has actual knowledge of a hazard and knows that the contractor is exercising "improvident judgment" by continuing to work in the face of such a hazard. Fontenot v. United States, 89 F.3d 205, 209 (5th Cir. 1996).
The evidence of record does not create an issue of fact as to the duty to intervene. Notwithstanding that Richard had upwards of twenty years experience on drilling rigs, he himself did not consider the drilling mud to be unsafe. There is no evidence to suggest that the mud that had accumulated at the time of Richard's accident was extraordinary or outlandish when compared to what would normally be expected to accumulate on a drilling floor. Nor is there any evidence that Transocean had any employee on the scene other than the roughneck. And Richard was the senior member of his crew. The fact that Richard sustained an injury is not in and of itself evidence that he was exercising improvident judgment. Richard has failed to create an issue of fact as to the duty to intervene.
In sum, Richard has failed to create an issue of fact as to any of the duties pertinent to a § 905(b) claim.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 32) filed by defendants Transocean Offshore U.S.A., Inc. and Transocean Offshore Ventures, Inc. should be and is hereby GRANTED. Plaintiff's complaint is DISMISSED.