Branch v. Chevron Intern. Oil Co., Inc.

• Citation: 681 F.2d 426
• Decision Date: 29 July 1982
• Docket Number: No. 81-3559,81-3559
• Parties: Mrs. Wanda Selman BRANCH, Plaintiff-Appellant, Fidelity and Casualty Co. of N. Y., Intervenor-Appellant, v. CHEVRON INTERNATIONAL OIL CO., INC., et al., Defendants-Appellees. Catherine MARLOWE, etc., Plaintiff-Appellant, Fidelity and Casualty Co. of N. Y., Intervenor-Appellant, v. CHEVRON, U. S. A., INC., et al., Defendants-Appellees. William C. McMURRAIN, Plaintiff-Appellant, Fidelity and Casualty Co., of N. Y., Intervenor-Appellant, v. CHEVRON OIL COMPANY, et al., Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 426

681 F.2d 426

Mrs. Wanda Selman BRANCH, Plaintiff-Appellant, Fidelity and Casualty Co. of N. Y., Intervenor-Appellant, v. CHEVRON INTERNATIONAL OIL CO., INC., et al., Defendants-Appellees.

Catherine MARLOWE, etc., Plaintiff-Appellant, Fidelity and Casualty Co. of N. Y., Intervenor-Appellant, v. CHEVRON, U. S. A., INC., et al., Defendants-Appellees.

William C. McMURRAIN, Plaintiff-Appellant, Fidelity and Casualty Co., of N. Y., Intervenor-Appellant, v. CHEVRON OIL COMPANY, et al., Defendants-Appellees.

No. 81-3559

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

July 29, 1982.

Garon, Brener & McNeely, Jacques F. Bezou, New Orleans, La., for Wanda Selma Branch and Catherine Marlowe.

Ivan D. Warner, III, New Orleans, La., Herbert R. Alexander, Bogalusa, La., for McMurrain.

Robert P. Baumgartner, New Orleans, La., for Fidelity & Cas.

McLoughlin, Barranger, Provosty & Melancon, Lloyd C. Melancon, New Orleans, La., for Chevron.

McLinchey, Stafford, Mintz & Hoffman, John E. Galloway, New Orleans, La., for Platform Coating Services, Inc. & Nat. Union Fire Ins. of Pittsburgh.

Faris, Ellis, Cutrone, Gilmore & Lautenschlager, Mat M. Gray, III, New Orleans, La., for Frank Baiden, etc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Wanda Branch, Catherine Marlowe, and William McMurrain appeal from a directed verdict entered against them by the district court after the close of evidence. Finding that the proof raised several factual issues for the jury to resolve and that the trial court used an incorrect legal standard in evaluating the evidence, we reverse the judgment below and remand for a new trial. ¹

I.

This case grows out of yet another offshore oil platform tragedy. The facts are sharply controverted. All are agreed, however, that Richard Branch and James Marlowe, two painters employed by Platform Coating Services, Inc., an independent contractor, were killed in a fall from an offshore oil platform owned by Chevron International Oil Co. (Chevron). Their deaths occurred when a guardrail, to which the painters had anchored their painting scaffold, collapsed. After Branch and Marlowe were spilled from the scaffold some seventy feet into the sea, William McMurrain, a painter's helper, attempted to rescue them. In the course of the rescue, McMurrain sustained injuries.

McMurrain and the survivors of Branch and Marlowe then brought this suit in federal court against Chevron. Under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., as applied in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), the suit was governed by the laws of Louisiana. The plaintiffs grounded their claims on three provisions of the state law. Two provisions, it is urged, render Chevron strictly liable for the injuries as having been caused by defects in the oil platform, Articles 2317, 2322. ² One provision bases the claim of Chevron's liability for injuries as having been caused by its negligence, Article 2315. ³ Plaintiffs' strict liability theory was that Chevron had permitted the guardrail to rust and thereby become defective. Because the guardrail had fallen into disrepair, and because its collapse caused the deaths of Branch and Marlowe, Chevron was liable for the damages. Plaintiffs' negligence theory was that Chevron failed to inspect or maintain the handrail and failed to insure that Branch and Marlowe use safety equipment. McMurrain, who responded to the catastrophe with a rescue attempt, alleged that because Chevron was liable for creating the danger to Branch and Marlowe, it was liable to one who was injured in the course of a rescue. See Grigsby v. Coastal Marine Service, Inc., 412 F.2d 1011 (5th Cir. 1969), cert. dismissed, 396 U.S. 1033, 90 S.Ct. 612, 24 L.Ed.2d 531 (1970).

After the presentation of evidence, the district court directed a verdict for Chevron. The court reasoned that Chevron was not negligent because the guardrail, although corroded, was fit for its intended purpose-serving as a handrail. Chevron could not be held liable for the guardrail's collapse when it was misused as a support for the scaffold. Moreover, the court held that Chevron had no duty to supervise the plaintiffs or to require them to use safety equipment.

Alternatively, the court held that even if Chevron were guilty of negligence, the plaintiffs' contributory negligence barred their causes of action. In the court's view, the evidence showed that Branch and Marlowe were contributorily negligent in using the guardrail for a purpose for which it was not intended. They were also contributorily negligent in failing to use available safety harnesses while working and in failing to rig available safety nets below the scaffold.

The district court also directed a verdict for Chevron on the strict liability counts. The court found that Chevron was not strictly liable for injuries caused by the corroded guardrail because the guardrail, even if weakened by rust, was neither defective nor in ruin for its intended purpose. In the alternative, the court held that the contributory negligence of the plaintiffs in using the guardrail to support far more weight than it was designed to bear constituted victim fault and barred any recovery by the plaintiffs.

Having concluded that Chevron was not liable for the injuries suffered by Branch and Marlowe, the court also directed a verdict against McMurrain, the rescuer. The court reasoned that if Chevron was not responsible for the injuries to Branch and Marlowe, it was also not responsible to one who suffered damages in the course of a rescue attempt.

II.

A district court facing a motion for a directed verdict must apply the familiar test of Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). Under Boeing, a case should be allowed to go to the jury, or a jury verdict upheld, unless considering all of the evidence in the light most favorable to the nonmoving party:

If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury .... (I)t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Id. at 374-75.

In directing a verdict for Chevron, the district court transgressed Boeing by making factual choices that properly belonged to the jury. In addition, the district court applied an incorrect legal standard to its view of the evidence. Accordingly, the case must be remanded for a new trial.

A.

The Louisiana Supreme Court, in Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978), set out the requirements of liability under Article 2322: "(1) there must be a building; (2) the defendant must be its owner; and (3) there must be a 'ruin' caused by a vice in construction or in neglect to repair, which occasions the damage sought to be recovered." 365 So.2d at 185. The building owner's duty is to avoid a "ruin" that imposes an unreasonable risk of danger to persons. Oliver v. Aminoil, USA, Inc., 662 F.2d 349, 352 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1770, 72 L.Ed.2d 175 (1982). Article 2317 imposes strict liability on the owner or custodian of a thing when a vice or defect in the thing causes injury. Rodrigue v. Dixilyn Corp., 620 F.2d 537, 541 (5th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981); Loescher v. Parr, 324 So.2d 441, 447-48 (La.1975). A defect exists when the thing poses an "unreasonable risk of injury to another." 324 So.2d at 447-48. Thus, under both of the plaintiffs' strict liability claims, the plaintiffs must show that the oil rig was unreasonably dangerous because of a defect.

The district court found that the guardrail from which the plaintiffs hung their scaffold, although rusted, was not unreasonably dangerous. The court believed that the guardrail was not intended to be used for supporting scaffolds. Because the guardrail was adequate for its intended purpose, the court concluded that no defect existed and that strict liability did not attach. ⁴

We find that the district court applied a concept of "intended use" which is too stringent. Under Louisiana law, strict liability may be imposed when a product is "unreasonably dangerous in normal use." Byrd v. Hunt Tool Shipyards, 650 F.2d 44, 47 (5th Cir. 1981); Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971). "Normal use" is not limited to "intended use." Rather, "(n)ormal use is a matter of foreseeable use ...." Cobb v. Insured Lloyds, 387 So.2d 13, 18 (La.App.1980). In Cobb, the court held that it was foreseeable, and therefore normal, that a pistol would be carried loaded in a car with the safety off, despite the manufacturer's instructions always to keep the safety on.

In this case, the trial court restricted its vision to intended uses and saw the guardrail only as a handrail. The court thus overlooked the possibility that the guardrail would have other foreseeable uses. We believe that the evidence raises a jury question whether a guardrail on an offshore oil platform would foreseeably be used as a support for a scaffold.

The guardrail was not a flimsy apparatus. Rather, it was a heavy steel pipe about two inches in diameter and six feet in length. The pipe was welded to steel I-beams that structurally support the rig. When welded properly, the pipe should bear, according to plaintiffs' expert, 40,000...