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Cook v. Kim Susan LLC

United States District Court, E.D. Louisiana

February 11, 2015



CARL J. BARBIER, District Judge.

Before the Court is a Motion for Partial Summary Judgment (Rec. Doc. 104) filed by Defendants Kim Susan, LLC (Kim Susan), Coastal Environmental Operations, Inc. (CEO), and Fluid Technology Services International, LLC (Fluid Technology); an opposition thereto filed by Plaintiff Patrick Cook (Rec. Doc. 110); and Defendants' reply. (Rec. Doc. 115) Having considered the motions and memoranda, the record, and the applicable law, the Court finds that Defendants' motion should be GRANTED IN PART for the reasons set forth more fully below.


This personal injury claim arises from an accident Plaintiff endured while disembarking from the M/V Katrina Fagan, a vessel owned and operated by Kim Susan. (Rec. Doc. 110, p. 1) Plaintiff alleges that the vessel was under charter to McMoran Oil and Gas Co. at all relevant times. Id. at 2. McMoran contracted with Quality Pre-Heat and Pressure Washers and CEO to clean the tanks aboard the vessel. Id. McMoran also contracted with Fluid Technology to supervise the tank cleaning operations. Id. at 1-2. Plaintiff's employer, Quality Pre-Heat and Pressure Washers, assigned him to work as a tank cleaner aboard the M/V Katrina Fagan. Id.

The M/V Katrina Fagan arrived into port on July 17, 2012, to prepare for and undergo a Coast Guard inspection. Id. at 1, 3. At that time, Plaintiff alleges that the vessel's crew set out the gangway and "made an effort to secure' it as required by the applicable Coast Guard regulations." Id. at 3. Plaintiff subsequently boarded the vessel to conduct the tank cleaning operations. Id. at 1. On July 26, 2011, while Plaintiff was disembarking the vessel by descending the gangway, the gangway flipped. Id. at 1-3. Plaintiff fell from the gangway to the dock below and landed on his knees, causing injury. Id. At the time of the accident, the gangway was secured at the top to the ship with ropes tied to the top of the bulwarks rather than to the deck of the vessel. Id. at 3. At the bottom, the gangway rested on a small, movable set of stairs on the dock. Id.

Plaintiff filed suit in this Court on March 8, 2013, against Kim Susan and its insurer. (Rec. Doc. 1) In his complaint, Plaintiff alleged that the acts or omissions of Kim Susan and its crew caused his injury through the improperly positioned gangway. Id. at 2-3. Plaintiff further alleged that Kim Susan's conduct amounted to negligence per se because it failed to provide a safe means of ingress and egress to the vessel, in violation of Coast Guard regulation. Id. at 3. Plaintiff seeks judgment for "an amount reasonable in the premises, punitive damages, costs, and any other relief which may be available under the law or in equity plus legal interest on all amounts awarded from the date of judicial demand until paid." Id. at 4. Plaintiff subsequently amended his complaint to add additional Defendants. (Rec. Docs. 14, 20, 68)

On January 2, 2015, Defendants Kim Susan, CEO, and Fluid Technology filed the instant Motion for Partial Summary Judgment on the issues of CEO and Fluid Technology's liability and the availability of punitive damages. (Rec. Doc. 104) Plaintiff opposed the motion on January 21, 2015.[1] (Rec. Doc. 110)


Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that "a reasonable jury could not return a verdict for the nonmoving party." Delta, 530 F.3d at 399.

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991) (citation omitted). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d at 1075.


A. Liability of CEO and Fluid Technology

Defendants argue that CEO and Fluid Technology should be dismissed because Plaintiff has no evidence connecting either party to the gangway, which Plaintiff asserts was the cause of his accident. (Rec. Doc. 104-1, pp. 4-6) Defendants rely on excerpts from Plaintiff's deposition in which he admits that he had no facts to show that either CEO or Fluid Technology were connected to the gangway in any way. Id. Defendants assert that CEO owned the dock where the vessel was moored and also took part in the tank cleaning operations aboard the M/V Katrina Fagan along with Plaintiff's employer. (Rec. Doc. 115, p. 2) Additionally, Fluid Heat was engaged to oversee all of the work being performed on the vessel. Id. Defendants argue that neither party owed a duty to Plaintiff to provide a safe work ...

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