Noble Drilling (Us) Inc. v. Fountain

• Decision Date: 12 July 2007
• Docket Number: No. 01-06-00426-CV.,01-06-00426-CV.
• Parties: NOBLE DRILLING (US) INC., Noble Drilling (Paul Romano) Inc., Shell Offshore, Inc., and Shell Deepwater Development, Inc., Appellants, v. Kelly FOUNTAIN, Appellee.
• Court: Texas Court of Appeals

238 S.W.3d 432

NOBLE DRILLING (US) INC., Noble Drilling (Paul Romano) Inc., Shell Offshore, Inc., and Shell Deepwater Development, Inc., Appellants, v. Kelly FOUNTAIN, Appellee.

No. 01-06-00426-CV.

Court of Appeals of Texas, Houston (1st Dist.).

July 12, 2007.

Rehearing Overruled September 27, 2007.

Jeffrey R. Bale, Lewis E. Henderson, Roberts, Markel, & Bale P.C., Houston, TX, for Appellants.

John C. Schwambach Jr., John W. Stevenson Jr., Mark T. Murray, John Stevenson & Associates, P.C., Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.

OPINION

TERRY JENNINGS, Justice.

Appellants, Noble Drilling (US) Inc. and Noble Drilling (Paul Romano) Inc. (collectively, "Noble") and Shell Offshore, Inc. and Shell Deepwater Development, Inc. (collectively, "Shell"), challenge the trial court's judgment, rendered after a jury verdict, awarding appellee, Kelly Fountain, $1,345,900, in Fountain's suit against appellants for negligence under the Jones Act¹ and general maritime law. In four issues, appellants contend that there is no evidence or factually insufficient evidence "of Jones Act negligence giving rise to Noble's alleged liability in connection with injuries suffered by Fountain while performing a routine task" and "of general maritime negligence as to Shell's conduct in regard to injuries sustained by Fountain while performing a routine task."

We affirm the judgment rendered in favor of Fountain against Noble, but reverse and render the judgment rendered in favor of Fountain against Shell. We remand the case to the trial court for the entry of a new judgment consistent with this opinion.

Factual and Procedural Background

Fountain sued Noble and Shell for bodily injuries that he sustained while working for Noble as a roustabout on the NOBLE PAUL ROMANO, a drilling rig located in the Gulf of Mexico. As a roustabout, Fountain's duties included helping other crew members who were shorthanded, cleaning, and lifting.² Fountain asserted Jones Act, unseaworthiness, and maintenance and cure claims against Noble and a general maritime negligence claim against Shell, the operator of the well.

Fountain testified that, at the beginning of his shift on October 9, 2002, during a "pre-tour meeting" conducted by his supervisor, Tim Spear, the rig's crane operator, Fountain was assigned to serve as a flagger during the off-loading of a supply ship. Following the meeting, Fountain descended to the supply ship equipped with a portable radio, permitting him to stay in communication with Spear during the off-loading procedure. Fountain explained that for "safety reasons" and to minimize injuries, as well as for ease of use, all cargo loads on supply ships were required to be pre-slung, arriving at the rig "already with the things you need to hook to the crane." Furthermore, to prevent loads "from laying [sic] flat on the deck," making it more difficult to maneuver the loads, all cargo loads were required to be placed on dunnage.³

Fountain further testified that, despite these requirements, the last load on the supply ship, "a big bundle of tubing," 20-feet long, was not pre-slung and was "flat on the deck." Fountain noted that the load was "heavy" and two men together would not have been able to lift and carry the load. Two riggers on the supply ship were having difficulty handling this load and "tried to hook the crane up to [the load] by lifting it and getting the slings under, but they couldn't do it by it being flat on the deck." When Fountain radioed Spear and told him that the load was not pre-slung and "laying [sic] flat on the deck," Spear told Fountain to "help." From where Fountain was standing on the supply ship, he could see Spear, and nothing obstructed Spear's view of him.

Fountain, who would not have lifted the load without Spear's instructions, lifted the first side of the load, enabling one of the riggers to place the sling underneath one side. Fountain then lifted the other side of the load, but the rigger could not get the slings underneath the load until Fountain's third lift. During his third lift, Fountain "felt a pop" in his lower back. Later that evening, after Fountain had returned to the rig, he "couldn't move." Fountain's pain persisted, he was placed on light duty, and he ultimately left the rig. Fountain later learned that he suffered a herniated disc as a result of lifting the load.

On cross-examination, Fountain agreed that, as part of his employment, he had been trained "to lift things properly and safely." He was a certified rigger, who had been taught "how to sling and unsling pieces of equipment," and he had previously "rigged up" and "put slings" on loads. Although Shell, one week prior to the incident, had enacted a formal pre-slinging policy that required all loads to be pre-slung, Fountain, prior to the policy, had been told not to handle loads that were not pre-slung. Fountain also agreed that he was charged with telling Spear "exactly what was going on" on the deck of the supply ship, but reiterated that Spear had "visual sight" of him. When Fountain walked up to the load, he thought that he could lift it and that it was within his "safe lifting capabilities." Fountain conceded that he had "the absolute right to refuse to pick anything up."

Fountain confirmed that, prior to the enactment of the pre-slinging policy, "there were times that [he] would have done the job exactly the same way as [it] was done on the day of the incident." He admitted that he did not ask the riggers on the supply ship to get additional riggers to help, did not tell Spear that he was having trouble, and did not ask for a pry bar to assist with the lift. However, in Fountain's opinion, a pry bar would not have been useful. Fountain maintained that he lifted the load as he was told, stating "that's my job as a roustabout." In his deposition testimony, Fountain had previously agreed that if he had contacted Spear and told him that the load was too heavy to lift, Spear could have either sent additional help or handled the load another way. Fountain also agreed that when he radioed Spear, he did not discuss the load's weight.

Spear, the crane operator on the rig, testified that, according to Shell policy, the bundle of tubing, which he described as two tubes, 20 feet long, and "three by three" inch, should have been pre-slung. From his position in the crane, roughly 160 feet away, Spear could see the ship's deck, and it looked like the load was sitting flat on the deck. Fountain, as he was required to do, radioed Spear before getting "physically involved in the rig up," told Spear that the load was not pre-slung and was sitting flat on the deck, and asked if he could "help them pick it up." Spear knew from this request that Fountain would "be helping [the riggers] lift the tubing to put the slings underneath." After Spear gave Fountain permission to assist, Spear saw Fountain pick up the first end of the load and the riggers place the sling underneath. Fountain then picked up the other side, the slings were placed underneath, and, using the crane, Spear lifted the load to the rig.

Spear further testified that he should have reported the non-complying load to the barge engineer, his direct supervisor, and that he failed to do so. Spear conceded that he also had the ability to suspend unsafe operations. After learning of Fountain's injury, Spear looked at the tubing, guessed it weighed 200 pounds, and then picked up one end of the tubing by himself, but not to his waist. Although it was a "strain," Spear stated that roustabouts are trained on proper lifting techniques, and, as best he could tell, Fountain properly lifted the load.

Spear conceded that he had trained Fountain that all loads were required to be pre-slung. Despite the fact that the load was not slung, nothing seemed unsafe or dangerous to Spear about Fountain's helping rig the load. When Fountain asked Spear for permission to help the riggers with the load, Spear told Fountain, "If you think you can handle it." Spear denied "ordering" Fountain to help, and stated that he never ordered Fountain to do anything unsafe. Spear did not see Fountain have any problems lifting the first end of the load, and, although his view was partially blocked when Fountain lifted the second end, Spear did not see any problems or difficulties. Spear explained that he could have provided Fountain additional help, but Fountain never told Spear that he was having trouble or needed help, and Spear did not refuse to provide additional help. Spear noted that when a load is too heavy to be lifted by one man, it is possible to use a pry bar for leverage. Spear also noted that prior to the pre-slinging policy, roustabouts performed rigging work on cargo when it arrived on the rig.

Lonnie Neitermayer, appellants' corporate representative, testified that Spear, as crane operator, was in a supervisor position and that the safety of his crew was his responsibility. During Neitermayer's testimony, Fountain introduced into evidence a copy of the "operations procedure for offshore crane operations" in effect at the time of the incident. The procedures established the "requirements for the pre-slinging and containerization of loads being transported" from vessels to Shell locations. Neitermayer explained that, pursuant to this policy, all loads were required to be pre-slung, with no variances or exceptions. Also, Noble was contractually bound to honor Shell's policies, and Shell had a "company man" on the rig to ensure that Shell's "safety policies and procedures [were] followed." Moreover, a Shell representative visited the supply ship with the manifest prior to its departure for the rig, went through and photographed "everything ... located on the deck," and authorized the supply ship to depart for the rig.

Neitermayer further testified that once Fountain notified Spear of the non-complying load, Spear was required to notify his...