Bertrand v. Shell Oil Company

• Decision Date: 04 February 1974
• Docket Number: No. 72-2955.,72-2955.
• Citation: 489 F.2d 293
• Parties: John V. BERTRAND, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 293 (1973)

John V. BERTRAND, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.

No. 72-2955.

United States Court of Appeals, Fifth Circuit.

December 27, 1973.

Rehearing Denied February 4, 1974.

Vernon C. McManus, Robert K. Guillory, Eunice, La., for plaintiff-appellant.

James T. Guglielmo, Opelousas, La., for defendant-appellee.

Before BELL, INGRAHAM and RONEY, Circuit Judges.

INGRAHAM, Circuit Judge :

Plaintiff-appellant John V. Bertrand was injured while working as a welder on an offshore fixed production platform located in the Gulf of Mexico approximately ninety miles off the coast of Louisiana. This offshore structure was owned and operated by the defendant Shell Oil Company. On the day of the accident Bertrand, an employee of Henson Welding Service, had been instructed by Shell to remove certain sections of metal grating which formed the decking on the platform. Bertrand was given two helpers for this task, Roger Broussard, a Shell employee, and James Keliehor, who was employed by Berry Brothers, a general roustabout contractor. After Bertrand had cut the grating loose from the rig structure, the men lifted it from its previous position and stood it upright.¹ Broussard was assigned to hold the grating—which weighed about 500 pounds and was approximately ten to twelve feet long and four feet high— while Bertrand and Keliehor, straddling the I-beam directly in front of the grating in the open space left by its removal, were smoothing off the surface from which the grating had been removed. Bertrand was seriously injured when Broussard lost his grip on the grating allowing it to fall on top of Bertrand.

Bertrand's suit against Shell Oil was tried to a jury, and although Shell was found negligent, Bertrand was precluded from any recovery because the jury found him contributorily negligent. Two issues raised on appeal merit discussion:² (1) whether the trial court erred in applying the Louisiana contributory negligence rule rather than the federal maritime standard of comparative negligence, thereby barring any recovery if Bertrand's own negligence contributed to his injury ; and (2) whether the evidence at trial would have supported jury instructions on the last clear chance doctrine, thus producing error from the court's failure to give the requested instruction. We affirm.

I.

In an attempt to escape the consequences of the contributory negligence rule, Bertrand offers two theories to avoid its application. The first is that under the Outer Continental Shelf Lands Act (43 U.S.C. § 1331 et seq.), as interpreted by Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), state law is to be applied as surrogate federal law only where it is not inconsistent with existing federal law, and therefore comparative negligence, rather than the inconsistent Louisiana rule of contributory negligence, should be used here. This contention is precluded by Dickerson v. Continental Oil Co., 449 F.2d 1209 (5th Cir., 1971). Applying the principles discussed in the Supreme Court's decision in Rodrigue, the Dickerson court stated:

"We feel Rodrigue compels the application of Louisiana\'s doctrine of contributory negligence in this case. Though maritime law utilizes a doctrine of comparative negligence, the events in question here, as in Rodrigue, all occurred on the platform. As the Supreme Court stated, `for federal law to oust adopted state law federal law must first apply.\' Since that court has decided that accidents which occur on such platforms have `no more connection with the ordinary stuff of admiralty than do accidents on piers,\' we are compelled to agree that Louisiana law applies."

449 F.2d at 1219.

Bertrand's argument is premised on the fundamental misconception that his claim is maritime in nature. Both Rodrigue and Dickerson make it plain, however, that actions arising from accidents on these "artificial islands" are not governed by traditional admiralty law ; comparative negligence is therefore not the standard.

Bertrand's second theory must also be rejected because of the special rules created by the Outer Continental Shelf Lands Act. Section 1333(c) explains that an employee injured as a result of operations on the outer continental shelf as a remedy against his employer under the Longshoremen's and Harbor Workers' Compensation Act. Section 905 of this Act "unequivocally provides that the benefits secured to a claimant under it shall be the `exclusive remedy' of the claimant against his employer." Bertrand v. Forest Corp., 441 F.2d 809, 811 (5th Cir., 1971). Bertrand's contention that the Louisiana Workmen's Compensation Act is somehow applicable to prohibit Shell from asserting contributory negligence as a defense to liability is therefore untenable. His only remedy against Shell is that he has pursued here, and as we have already noted, the usual Louisiana rules including contributory negligence govern this action.

II

A closer question is raised by Bertrand's contention that the trial court erred in refusing to instruct the jury on the last clear chance doctrine. Characterizing the facts here as a "classical" situation for the application of this legal device which permits a plaintiff to avoid the consequences of his own negligence, Bertrand argues that there is evidentiary support for such an instruction in the record. We disagree ; the facts here represent the antithesis of a classical last clear chance case,³ if indeed there is such a thing. When viewed against the applicable Louisiana law, the factual context present here supports the district court's conclusion that the issue was not raised.

The criteria necessary for the operation of the doctrine have been clearly established by the Louisiana courts : (1) the plaintiff, through his own negligence, must be in a perilous position of which he is unaware or from which he is unable to extricate himself ; (2) the defendant must be actually aware of plaintiff's perilous condition or must be in such a position that he should have discovered plaintiff's situation; and (3) defendant must have been able, either at the time he discovered or should have discovered plaintiff's position, to avoid injuring him by the exercise of ordinary care. Bergeron v. Dept. of Highways, 221 La. 595, 60 So.2d 4 (1952) ; Jackson v. Cook, 189 La. 860, 181 So. 195 (1938) ; Rottman v. Beverly, 183 La. 947, 165 So. 153 (1936) ; McDonald v. Scotlandville Fire Pro. Dist. Com'n., 222 So.2d 324 (La.App. 1969). Unless all three of these elements are present a jury question is not raised. See Bergeron v. Dept. of Highways, supra.

In retrospect the first element is easily satisfied as a result of the jury's conclusion that plaintiff was contributorily negligent ; of necessity his negligent act was placing himself beneath the 500 pound grating held at his direction by one man. That he was unaware of this perilous position is not contested.⁴

Evidence was not introduced, however, to fulfill either the second or third elements of the formula. The first question in this regard is whether Shell's employee Broussard knew or should have known of plaintiff's perilous position.⁵ Broussard was a "greenie"—a worker not yet initiated into the ways of an offshore rig employee. He had been with Shell for less than a month prior to the accident, and although Bertrand was not his boss in a strict sense, it is clear that Bertrand was in charge of the work the three men were doing on the day of the accident. The job was begun early that same morning, but the accident did not occur until around 4:30 in the afternoon. There is no testimony that any procedure other than that being used at the time of the accident had been used earlier in the day. Broussard was given no indication that the procedure being used on this occasion was unusual, out of the ordinary or particularly dangerous, and he had not done this type of work in a different manner at a previous time. Moreover, there is no evidence indicating that Broussard encountered difficulty performing his assigned duties at any time earlier in the day. Plaintiff's counsel attempted to elicit testimony that Broussard was tired and that this was why he dropped the grating. The only conclusion supported by the evidence, however, is that Broussard's knowledge that he was going to drop the grating and the actual falling of it coalesced instantaneously. Whether Broussard's negligence is considered as the initial act of holding the grating or the ultimate act of dropping it, there is no evidence which could support a jury's decision that he should have realized he was going to drop the grating and thus either knew or should have known that plaintiff was in a perilous position.⁶ Finally, once Broussard realized he was going to drop the grating, it was too late for him to do anything to avoid the accident, thus leaving the third element unfulfilled.⁷

We have found only one case with facts even remotely analogous to those here, and it supports the district court's conclusion to withhold an instruction on the last clear chance doctrine. In Employers Liability Assurance Corp. v. Butler, 318 F.2d 67 (5th Cir., 1963), the trial court had instructed the jury on the last clear chance doctrine, and a verdict was returned for plaintiff Butler. Plaintiff's fifteen year old daughter Brenda was burned to death while participating in a talent show sponsored by the defendant's insured, Radio Station WYLD in New Orleans. Brenda was scheduled to perform a fire dance ; she had...