Haupt v. Atwood Oceanics, Inc., 81-2252

• Decision Date: 06 August 1982
• Docket Number: No. 81-2252,81-2252
• Citation: 681 F.2d 1058
• Parties: 10 Fed. R. Evid. Serv. 1643 Gerd HAUPT, Plaintiff-Appellee, v. ATWOOD OCEANICS, INC., et al., Defendants, Third Party Plaintiffs-Appellants, N. L. Shaffer, Third-Party-Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1058

681 F.2d 1058

10 Fed. R. Evid. Serv. 1643

Gerd HAUPT, Plaintiff-Appellee, v. ATWOOD OCEANICS, INC., et al., Defendants, Third Party

Plaintiffs-Appellants,

N. L. Shaffer, Third-Party-Defendant-Appellee.

No. 81-2252.

United States Court of Appeals, Fifth Circuit.

Aug. 6, 1982.

Kenneth D. Kuykendall, Houston, Tex., for defendants, third party plaintiffs-appellants.

Ray Hensarling, Houston, Tex., for Haupt.

John C. Allen, Houston, Tex., for N. L. Shaffer.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, POLITZ and RANDALL, Circuit Judges.

CLARK, Chief Judge:

Atwood Oceanics, the defendant in this Jones Act suit, appeals from a jury verdict for the plaintiff, Gerd Haupt, and a directed verdict for the third-party defendant N. L. Shaffer. We affirm.

Haupt was employed by Atwood as a derrickman on Atwood's drilling vessel, the M/V Gettysburg. On April 11, 1975, he was working below the rig floor dismantling a pipe known as a mud flow line. He sat on the pipe while performing this task. When finished, he tried to stand up on the pipe to begin his return to the rig floor. However, because the pipe was covered with mud, he slipped. In order to prevent himself from falling, Haupt grabbed a nearby piece of chain with his right hand, and grabbed a cable with his left hand.

This cable was part of the tensioner system which applies variable pressure (up to one hundred thousand pounds) to the riser pipe to offset movement of the vessel by the sea. The cables pass over sheaves, or pulleys, and then attach to the riser pipe. They are kept taut by a hydraulic system which automatically responds to any slackening of the cables. As Haupt was attempting to regain his balance the movement of the cable pulled his left hand into the pulley, causing severe injury.

Haupt sued Atwood under the Jones Act, 46 U.S.C. § 688 and the general maritime law alleging that Atwood was negligent and that the vessel was unseaworthy. Haupt claimed the presence of drilling mud on the mud flow pipe and the absence of a guard over the pulley rendered the work place unsafe.

Atwood filed a third party complaint seeking contribution or indemnity from N. L. Shaffer, the supplier of component parts for the tensioner system. This claim was, of course, contingent on a finding of liability against Atwood based on the lack of a guard over the pulley. Atwood's claim against Shaffer was based on negligence, strict liability in tort and breach of the Ryan warranty of workmanlike performance. See Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).

At the close of the evidence, the trial judge directed a verdict for Shaffer on the third party complaint. Haupt's claim against Atwood was submitted to the jury. The jury found in answer to special interrogatories that Atwood was negligent, and that its vessel was unseaworthy. It awarded Haupt $175,000.00, reduced 25% for his contributory negligence.

I

On appeal, Atwood contends that the district court failed to abide by this circuit's well-known standard for the granting of directed verdicts. See Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). Atwood also claims error in the denial of its motion to reopen its defense of Haupt's claim. Finally, Atwood contends the trial court erred in failing to require the jury to consider the present value of future wage losses.

Our review of the record convinces us that the district court correctly applied Boeing Co. v. Shipman's standard to the facts here. We agree with the trial judge that there is a complete absence of probative facts which would justify letting a jury determine Shaffer's liability.

Atwood's brief implicitly acknowledges that the lack of a guard over a pulley does not pose a dangerous condition in and of itself. Rather, the unguarded pulley must be in proximity to a work place before potential danger arises. The uncontroverted proof showed that the location of the pulleys and cables supplied as parts of the tensioner system and thus their proximity to a workplace, was determined by the design of the vessel's substructure. Certain witnesses testified that in light of this, any guards would have to be custom designed, and that the earliest that could be done would be after the rig's substructure was designed. Other testimony suggested that the most feasible time to custom-design guards would be at the time the rig was constructed, and the tensioner system actually installed.

It is of no moment whichever of these two statements more accurately reflects industry custom. Shaffer's assigned role contemplated no responsibility for either design or construction. It was a supplier of the system's component parts as Atwood concedes. These facts point overwhelmingly to the conclusion that Shaffer was under no duty to provide a guard. Any danger posed by these component parts was a function not only of the design and installation of the tensioner system itself, but also a function of the location of the workplaces on the rig. The proof showed that all of these were unforeseeable elements over which Shaffer had neither responsibility nor control.

While these facts alone could well have supported a finding that Shaffer was under no duty to supply a guard, additional facts rendered the case even more one-sided. Testimony revealed that Shaffer has never designed guards for its pulleys, was never asked to do so by Atwood and that applicable industry safety standards do not call for guarding the pulleys of a tensioner system. An Atwood employee, Billy Floyd Schmittou, who had been involved in previous purchases of equipment from Shaffer, corroborated this testimony. He stated that Shaffer had never provided a guard in the purchases of which he was aware. Even as to the danger posed by this particular pulley, Schmittou testified that he did not feel that a guard was necessary. Jasper Moore, Atwood's representative at the construction site, testified that he never thought to inquire about the necessity for a guard, and thought the tensioner system had been properly installed. Irrespective of Shaffer's duty, Atwood's own employees manifested a belief that no danger was posed by the tensioner system as it was designed and installed. This lack of concern speaks far louder than the hind sight of Atwood's expert witness.

Atwood argues strenuously that the presence of a Shaffer representative at the installation site mandates a different result. However, Atwood's brief makes it readily apparent that the Shaffer representative's role was confined solely to insuring that the tensioner system was properly installed and properly functioning. For example, the Shaffer representative was to tell Atwood if the pulleys were misaligned. There is no substantial evidence that the parties understood his duties to encompass anything having to do with responsibility for the rig's design or worker safety. Atwood's witnesses did testify they would have taken any necessary steps such as redesigning the rig, or having an engineering firm design guards if the Shaffer representative had recommended it. However, there was no duty on Shaffer's representative to make safety recommendations. A proffered willingness to follow suggestions that were not expected does not supply evidence of the quality and weight which Boeing Co. v. Shipman contemplates as necessary to make a jury issue.

Atwood's final argument concerning the third party...