Hill v. Texaco, Inc.
| Decision Date | 28 July 1980 |
| Docket Number | Civ. A. No. H-77-241. |
| Citation | 499 F. Supp. 470 |
| Parties | Richard HILL, Plaintiff, v. TEXACO, INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
William R. Edwards, Corpus Christi, Tex., for plaintiff.
Arthur Stamn, Baker & Botts, Houston, Tex., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The plaintiff, Richard Hill, instituted this Longshoreman's and Harbor Workers' Compensation Act suit, 33 U.S.C. §§ 901, et seq., against Texaco, Inc. for personal injuries he suffered while working as the employee of an independent contractor on board the defendant's vessel, the Texaco Illinois. The plaintiff is a resident of Tennessee. Texaco, Inc. is a corporation organized under the laws of Delaware, with its principal place of business in New York.
The plaintiff filed his suit in the 157th District Court in Harris County, Texas with a request for a jury. The defendant filed a petition for removal to the federal district court, basing jurisdiction upon the diverse citizenship of the parties. The diversity jurisdiction of this court is properly invoked, 28 U.S.C. § 1446(b).
The defendant filed a motion for summary judgment. The court denied the motion.
The case came before the court for trial on March 24, 1980. The parties agreed to waive the jury. The court entered judgment in favor of the plaintiff, awarding him $129,929.72 in damages. Herein the court sets forth its findings of fact and conclusions of law.
The inside of the storage tanks of a vessel rust over time. The rust erodes the metal of the tank, decreasing the thickness of the tank wall. The thinner the tank wall, the less pressure it can sustain. If the wall is too thin and the pressure too great, the tank will burst, its contents may be lost, and the vessel may be severely damaged. To prevent such an accident, the thickness of tanks walls are periodically checked.
The test involves the placement of an electronic probe on the tank wall. The testor knocks off the rust from the area to be tested until the bare metal is evident. (A hammer can be used for this task.) The testor places oil on the transducer (the end of the probe) in order to make a good connection. He presses the probe against the bare metal. The probe electronically reads the thickness of the metal and relays its reading to a machine on the deck of the vessel which is manned by another member of the testing crew.
Performing this test can be hazardous, at least in part due to the dangerous nature of rust. Rust can crack or crumble under pressure; chunks of it may fall off a wall or ceiling. For example, the weight of a testor stepping on a rusty portion of a tank may crumble the rust, causing it to give way beneath him.
The tank on the Texaco Illinois in which the plaintiff fell is 40' high by 25' wide by 50' long. The sides of the tank are lined with stiffeners: shelf-like projections from the wall which are parallel to the floor. The stiffeners are approximately 18" wide. They are placed approximately 3' apart all the way up the wall of the tank. The stiffeners have hand-holds along the edge.
The tank walls and stiffeners of the Texaco Illinois were rusty. Texaco, Inc. contracted with Evans Engineering, Inc. (Evans), an independent contractor, to test the thickness of the metal inside the tanks of the Texaco Illinois. Evans Engineering, Inc. hired Richard Hill, among others, to perform the testing. Evans used Hill approximately seven times before to test the tanks of vessels.
On the third day of Evans' work, the day of the accident, the testing crew set out to test the metal in tank # 8, a rusty tank. Tank # 8 was almost finished being emptied of ballast (water) so it could be loaded later that day. The ballast left moisture on the walls and other surfaces of the tank, creating a dangerous slippery condition on the rusty stiffeners.
Richard Hill was assigned to climb up the stiffeners. He climbed up the stiffeners, stopping to check the thickness of the metal periodically. Hill did not wear a safety belt, which would hook on to the stiffeners, or a safety line, which would be tied onto something stable on deck, although they were available to him.
Both Evans and Texaco, Inc., knew of the dangerous moist and rusty condition inside the tank and knew that the plaintiff was not protecting himself. Evans was hired to assess the degree of rust in the tanks. The owner of Evans worked on board the Texaco Illinois with his crew. He could see the ballast in the tank and the residue it left on the stiffeners. He also could see that Hill did not use safety equipment. The shipowner's knowledge of the rust is evident from the fact that Texaco contracted with Evans to test the metal thickness; it knew of the moisture because the ballast was being emptied from the tank. Billy Troy Yawn, who boarded as chief mate on the morning of the accident, testified that he knew that the tank was wet and rusty, and that such a condition was dangerous. He testified that he saw Evans' crew, including Hill, on deck in the morning before they went into tank # 8. He saw that they did not have safety lines or other safety equipment. Nevertheless, he did not check to see if they used safety equipment while working in the tank.
In addition, this court infers that the captain and other officers of the Texaco Illinois, who were on board the entire time Evans' crew worked, knew or should have known the method and safety devices Evans' crew used to test the metal thickness, at least by the end of Hill's first day of work.
Although Evans, the crew, and Yawn knew that Hill was not protecting himself against the dangerous condition inside the tank, neither Evans, the crew, nor Yawn took any measures to protect Hill against the danger.
Hill's accident occurred when he was about half-way up the side of the tank. He had difficulty making contact with the probe against the metal to get a reading. He pressed harder on the probe. The pressure exerted on the probe also placed greater pressure on his feet. Rust under his feet, on the stiffener upon which he stood, loosened and gave away. Hill fell to the bottom of the tank.
Hill's fall injured him. The hospital records immediately following the accident diagnosed him as having back, feet, and rib injuries: a fracture of the fourth lumbar vertebrae, fractures of the right and left calcanei, and fracture of the left eighth rib.
Hill continues to suffer from the injuries to his heels and back. He cannot use his foot fully when walking and must wear special shoes. Arthritis has developed in his right foot, related to the fracture. The amount of time he can work and the amount of weight he can lift is limited due to his back injuries. The medical report of Dr. B. York submitted to the U. S. Department of Labor states Hill's back has a 15% permanent physical impairment as a result of the fracture. It states Hill's right foot has an 11-12% permanent partial disability and his left foot is no more than 3% permanently partially disabled as a result of the fracture.
The court concludes that the plaintiff suffered injuries resulting in total incapacity for two years and 20% permanent partial incapacity thereafter. As a direct and proximate result of his injuries, Richard Hill has incurred reasonable medical expenses in the necessary treatment of his injuries and their effects.
As a direct and proximate result of his injuries, plaintiff has suffered a loss of wages and wage—earning capacity. He will also suffer a permanent loss of wage earning capacity in the future.
As a direct and proximate result of his injuries, plaintiff has suffered physical pain and mental anguish in the past. He will continue to suffer pain and anguish from the time of trial until the end of his life.
At the time of his injuries, Richard Hill was 24 years old. At the time of trial he was 29 years old and he had a reasonable life expectancy at 43.3 years.
The legal question presented by this case is whether a shipowner's knowledge (1) that a dangerous condition exists on board the vessel, (2) that an employee of an independent contractor appreciates the danger, and (3) that the employee is failing to protect himself from the dangerous condition, imposes a duty on the shipowner to protect the employee from the danger. The Fifth Circuit has consistently held that land based standards of negligency apply to causes of action brought under § 905(b) of the Longshoreman's and Harbor Worker's Compensation Act. In the interest of uniformity in the courts throughout the circuit, the Fifth Circuit Court of Appeals adopted the standard set forth in the Restatement (Second) of Torts §§ 342, 343 and 343A (1965) () as the circuit's standard for maritime negligence actions. Gay v. Ocean Transport and Trading, Ltd., 546 F.2d 1233, 1242 (5th Cir. 1977).1 The Restatement §§ 343 and 343A(1) are relevant in this case. Section 343 states:
Restatement of Torts (Second) (American Law Institute 1965).
The comment to § 343 indicates that § 343 should be read together with § 343A. Section 343A(1) provides:
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
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Hill v. Texaco, Inc.
...and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b). 1 After a bench trial, the court awarded damages to Hill, 499 F.Supp. 470 (S.D.Tex.1980), and Texaco On January 17, 1975, Richard Hill began to climb the walls of a gasoline storage tank aboard the tanker the TEXACO ILLINOIS.......