Opinion
2012 CA 1114
03-20-2013
TYRONE JOHNSON v. CAL DIVE INTERNATIONAL, INC., BAYOU TESTERS, INC., AND CDI VESSEL HOLDINGS, LLC
David C. Whitmore Lawrence Blake Jones New Orleans, Louisiana Counsel for Plaintiff/Appellant Tyrone Johnson Christopher J. Stahulak Sidney W. Degan, III Emily R. Alder New Orleans, Louisiana Counsel for Defendant/Appellee Bayou Inspection Services, Inc. Rufus C. Harris, III Cindy Galpin Martin New Orleans, Louisiana Counsel for Defendants/Appellees Cal Dive International, Inc. & CDI Vessel Holdings, LLC Michael J. Vondenstein Metairie, Louisiana Counsel for Defendant/Appellee Certain Underwriters at Lloyd's London
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 568,793
Honorable Timothy E. Kelley, Judge Presiding
David C. Whitmore
Lawrence Blake Jones
New Orleans, Louisiana
Counsel for Plaintiff/Appellant
Tyrone Johnson
Christopher J. Stahulak
Sidney W. Degan, III
Emily R. Alder
New Orleans, Louisiana
Counsel for Defendant/Appellee
Bayou Inspection Services, Inc.
Rufus C. Harris, III
Cindy Galpin Martin
New Orleans, Louisiana
Counsel for Defendants/Appellees
Cal Dive International, Inc. &
CDI Vessel Holdings, LLC
Michael J. Vondenstein
Metairie, Louisiana
Counsel for Defendant/Appellee
Certain Underwriters at Lloyd's
London
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
McCLENDON , J.
The plaintiff appeals the trial court's judgment granting summary judgment in favor of the defendants and dismissing his claims against them with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On July 15, 2008, Tyrone Johnson filed a petition for damages, alleging that he was injured on September 27, 2007, after tripping on an electrical cord while aboard the M/V BRAVE, a vessel owned and operated by the defendants, Cal Dive International, Inc. and CDI Vessel Holdings, LLC (collectively "Cal Dive"). Thereafter, Mr. Johnson filed a Second Amended and Supplemental Petition, asserting that Cal Dive was liable to him pursuant to 33 U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. ("LHWCA"). On November 7, 2011, Cal Dive filed a Motion for Summary Judgment, maintaining that there were no genuine issues of material fact in that the cause of Mr. Johnson's injury was an open and obvious condition and, therefore, Cal Dive was entitled to judgment in its favor as a matter of law. Following a hearing on February 27, 2012, the trial court granted the motion and signed a judgment on March 28, 2012. Mr. Johnson appealed, asserting that the trial court erred in finding that the hazard in this case was open and obvious.
STANDARD OF REVIEW
A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B. The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966A(2).
The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art. 966C(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. LSA-C.C.P. art. 966C(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P, art. 966C(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967B.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 08-1262 (La.App. 1 Cir. 12/23/08), 5 So.3d 238, 243-44, writ denied. 09-0166 (La. 3/27/09), 5 So.3d 146.
DISCUSSION
While the United States Constitution grants to federal district courts jurisdiction in all cases of admiralty and maritime jurisdiction, state courts have concurrent jurisdiction by virtue of the "saving to suitors" clause of the Judiciary Act of 1789 as amended, U.S. Const, art. III, § 2; Giorgio v. Alliance Operating Corp., 05-0002 (La. 1/19/06) 921 So.2d 58, 67. See also 28 U.S.C. § 1333(1). Mr. Johnson's claim, filed in state court pursuant to the savings to suitors clause seeking recovery under 33 U.S.C. § 905(b) of the LHWCA, falls within maritime jurisdiction. See Giorgio, 921 So.2d at 67. As such, his claim is governed by substantive maritime law. See Milstead v. Diamond M. Offshore, Inc., 95-2446 (La. 7/2/96), 676 So.2d 89, 94; Viator v. LeBeouf Bros. Towing, L.L.C., 12-0314 (La.App. 4 Cir. 10/17/12), 102 So.3d 228, 233. The statute, 33 U.S.C. § 905(b), gives a longshore worker the right to file a third-party suit against a ship owner for personal injuries sustained as a result of the vessel's negligence. Id.; Jackson v. Gearbulk, Inc., 761 F.Supp.2d 411, 418 (W.D. La. 2011). In order to establish vessel negligence, the longshore worker must prove that the vessel owner violated or breached a duty owed to him. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 169, 101 S.Ct. 1614, 1623, 68 LEd.2d 1 (1981); Poole v. Quality Shipyards, Inc., 95-1331 (La.App. 4 Cir. 1/19/96), 668 So.2d 411, 413, writ denied, 96-0405 (La. 3/22/96), 669 So.2d 1215.
33 U.S.C.A. § 905(b) provides in pertinent part:
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. ... The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.
In Scindia, the Supreme Court set forth the scope of a ship owner's duties under § 905(b) with respect to longshoremen as consisting of three aspects: (1) the turnover duty (comprised of the duty to provide safe conditions and a duty to warn); (2) the active operations/active participation duty; and (3) the duty to intervene. See Scindia, 451 U.S. at 167-78, 101 S.Ct. at 1622-28; Viator, 102 So.3d at 234. Although the principles in Scindia were formulated in the context of stevedoring operations, jurisprudence generally has extended this reading of § 905(b) to other independent contractors falling under the LHWCA. See, e.g., Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 33 n.6 (5th Cir. 1997); Teply v. Mobil Oil Corp., 859 F.2d 375, 377 (5th Cir. 1988); Bergeron v. Main Iron Works, Inc., 563 So.2d 954, 957 (La.App. 1 Cir.), writ denied, 569 So.2d 965 (La. 1990).
The "turnover duty" relates to the condition of the ship upon the commencement of stevedoring operations. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98, 114 S.Ct. 2057, 2063, 129 LEd.2d 78 (1994). The second duty, applicable once stevedoring operations have begun, provides that a ship owner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the "active control of the vessel." Id. The third duty, called the "duty to intervene/' concerns the vessel's obligations with regard to cargo operations in areas under the principal control of the independent stevedore. Id.
In the case sub judice, Mr. Johnson asserts that the first and third Scindia duties are at issue herein, However, Cal Dive contends that only the turnover duty is at issue, as that was the only issue raised by Cal Dive and the only issue argued in the trial court. Specifically, Cal Dive claims that they owed no duty to protect Mr. Johnson from a hazard that was open and obvious and, accordingly, there was no breach of Cal Dive's turnover duty.
Both parties agree that the second Scindia duty is not implicated under the facts of the present case.
We note that, as a general rule, this court cannot consider contentions raised for the first time on appeal which were not pleaded in the court below and which the trial court did not address. See Johnson v. State, 02-2382 (La. 5/20/03), 851 So.2d 918, 921; Jackson v. Home Depot, Inc., 04-1653 (La.App. 1 Cir. 6/10/05), 906 So.2d 721, 725. Nevertheless, Cal Dive asserts that even if the duty to intervene is properly before this court, it is not applicable to the facts of this case. We agree, as will be discussed later herein.
In support of the motion for summary judgment, Cal Dive submitted excerpts from Mr. Johnson's deposition. In opposition to the motion, Mr. Johnson submitted his affidavit. The record shows that on September 27, 2007, Mr. Johnson was employed by Bayou Testers, Inc. (Bayou Testers) as an x-ray technician's helper aboard the pipe-laying barge the M/V BRAVE. In his deposition, Mr. Johnson testified that on his first day of actual work aboard the vessel, he entered a trailer situated on the deck of the barge used by Bayou Testers to x-ray pipe. When he entered the trailer at approximately midnight, Mr. Johnson noticed the electrical cord lying on the floor inside the doorway. He stated it was two to three inches in diameter and yellow or orange in color. Mr. Johnson stated that sometime between two and three that morning, he was attempting to leave the trailer to get a glass of water in the kitchen when his foot caught on the cord and he fell forward down to the deck. In his affidavit, Mr. Johnson stated that he had exited the trailer once before the accident to go to the kitchen and returned. He admitted that he had crossed over the electrical cord three times before falling on the fourth crossing. Mr. Johnson also stated in his affidavit that immediately after his accident, while he was on the deck, he saw a supervisor for Cal Dive remove the electrical cord.
The Turnover Duty
The turnover duty requires the vessel to have the ship and its equipment in such condition that an "expert and experienced" stevedore, in the exercise of reasonable care, will reasonably be able to safely fulfill its operations. Scindia, 451 U.S. at 166-67, 101 S.Ct. at 1622; Jackson, 761 F.Supp.2d at 418-19. In turning over the ship, the vessel must warn the stevedore of latent or hidden dangers that are known or should have been known to the vessel in the exercise of due care. Jackson, 761 F.Supp.2d at 419. Yet, the vessel's responsibility to warn of latent defects is narrow. Id. More importantly, a vessel has not breached its duty to turn over a safe vessel if the defect causing the injury is open and obvious and one that the longshoreman should have seen. Greenwood v. Societe Francaise De, 111 F.3d 1239, 1246 (5th Cir. 1997). See also Scindia, 451 U.S. at 167, 101 S.Ct. at 1622 (a vessel's duty to warn extends only to defects "that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work"). If the longshoreman knew of the defect, then it is considered open and obvious. Greenwood, 111 F.3d at 1246. Ship owners are not liable for obvious dangers that injure contractors aboard their vessels unless the contractors, in order to avoid the danger, would be forced either to leave the job or to face penalties for causing delay. Teply, 859 F.2d at 378.
Moreover, because the turnover duty requires the plaintiff to prove that the vessel had actual knowledge of the defect or had a duty to discover the defect, a vessel is not liable when there is no evidence that (1) the vessel had actual knowledge of the defect, or (2) due care should have led the vessel to discover the defect. Jackson, 761 F.Supp.2d at 419.
Cal Dive presented evidence showing that the electrical cord was open and obvious. Mr. Johnson was aware of the cord and had stepped over it on three prior occasions. He presented no evidence that he was under any time or supervisory pressure, and, in fact, was on his way to the kitchen to get a glass of water. Further, Mr. Johnson failed to present sufficient evidence to show how or by whom the cord was placed across the doorway in the trailer used by Bayou Testers to x-ray pipe, and thus, failed to show that Cal Dive knew or should have known of any defect. Therefore, Mr. Johnson has failed to raise a material issue of fact based on the first Scindia duty.
In his deposition, Mr. Johnson testified that he did not know who owned the electrical cord. However, in his affidavit, he later stated that the "cords were not owned by Bayou Testers nor were they placed there by Bayou Testers." This was the only evidence offered by Mr. Johnson regarding the ownership of the electrical cord.
--------
Duty to Intervene
The third Scindia duty, the duty to intervene to protect longshoremen from dangers that arise during the course of their work, is also a narrow one. Futo v. Lykes Bros. S.S. Co., Inc., 742 F.2d 209, 216 (5th Cir. 1984). Under Scindia, the duty to intervene requires: (1) actual knowledge of a dangerous condition that posed an unreasonable risk of harm, and (2) actual knowledge that the contractor cannot be relied on to remedy the condition or protect its employees and that the contractor is instead, in the exercise of improvident judgment, continuing work in the face of an unreasonably dangerous condition. Gonzalez v. U.S., 588 F.Supp.2d 747, 764 (S.D. Tex. 2008). See also Scindia, 451 U.S. at 175-76, 101 S.Ct. at 1626. Thus, the duty to intervene requires actual knowledge of both the dangerous condition and the unreasonable conduct. Gonzalez, 588 F.Supp.2d at 764 n.5.
In this matter, Mr. Johnson failed to present evidence that Cal Dive had actual knowledge of either condition. Thus, even were we to consider the third Scindia duty, Mr. Johnson has failed to raise a genuine issue of material fact as to the duty to intervene. Having so found, it is unnecessary to address Cal Dive's argument that this issue is not properly before us, not having been raised at the trial court level.
CONCLUSION
Having found no genuine issue of material fact that would give rise to a Scindia duty in favor of Mr. Johnson, summary judgment in Cal Dive's favor was appropriately granted. Accordingly, the March 28, 2012 judgment in favor of the defendants, Cal Dive International, Inc. and CDI Vessel Holdings, LLC, is affirmed. Costs of this appeal are assessed to the plaintiff, Tyrone Johnson.
AFFIRMED.