Johnson v. Cal. Dive Int'l, Inc.

Decision Date20 March 2013
Docket Number2012 CA 1114
PartiesTYRONE JOHNSON v. CAL DIVE INTERNATIONAL, INC., BAYOU TESTERS, INC., AND CDI VESSEL HOLDINGS, LLC
CourtCourt of Appeal of Louisiana — District of US

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 onlydemonstrate 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 ofthe vessel's negligence.1 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.

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,2 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.3 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.

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 inhis 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...

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