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Velasquez v. Crescent Towing & Salvage Co., Inc.

United States District Court, E.D. Louisiana

November 3, 2017

MICHAEL T. VELASQUEZ, JR.
v.
CRESCENT TOWING & SALVAGE CO., INC.

         SECTION "S"

          ORDER AND REASONS

          MARY ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.

         IT IS HEREBY ORDERED that Crescent Towing & Salvage Co., Inc.'s Motion for Summary Judgment (Doc. #20) is GRANTED as to Michael T. Velasquez, Jr.'s unseaworthiness claim.

         IT IS FURTHER ORDERED that Crescent Towing & Salvage Co., Inc.'s Motion for Summary Judgment (Doc. #20) is DENIED as to Michael T. Velasquez, Jr.'s negligence claim made under 33 U.S.C. § 905(b).

         BACKGROUND

         This matter is before the court on a motion for summary judgment filed by defendant, Crescent Towing & Salvage Co., Inc., which owns the vessel the ANGUS R. COOPER. Crescent Towing argues that it is entitled to summary judgment on plaintiff's claim brought under § 905(b) of the Longshore and Harbor Workers Compensation Act (“LHWCA”), 33 U.S.C. § 905(b), because plaintiff, Michael T. Velasquez, Jr., cannot prove that Crescent Towing breached one of the duties owed by Crescent Towing to Velasquez under Scindia Steam Navigation Co. v. DeLosSantos, 101 S.Ct. 1614 (1981).

         On February 4, 2016, Velasquez, an employee of Jonny White's C&W Air Repair, Inc. (“C&W”), was performing maintenance work on the ANGUS R. COOPER, a towing vessel owned by Crescent Towing. The crew of the ANGUS R. COOPER consisted of a master, Daniel Caire; a wheelman; and, an engineer, Mark Millican. C&W's workers aboard the ANGUS R. COOPER on February 4, 2016, were the lead mechanic, Daniel DeSoto; and, two helpers, Velasquez and Eugene Owens. C&W's workers were on the ANGUS R. COOPER for approximately four hours rebuilding the compressors in the lower engine room. The lower engine room is accessed from the upper engine room via a set of steep, ladder-like stairs.

         Owens and Velasquez disassembled one of the vessel's compressors. The parts from that compressor were brought to the upper engine room to be cleaned. After the residue and gasket material was scraped off of the parts, Owens and Velasquez carried them back to the lower engine room to be reinstalled by DeSoto.

         Velasquez alleges that he sustained serious and disabling injuries when he slipped and fell while he was traversing the stairs leading from the upper engine room to the lower engine room. Velasquez further alleges that the fall was caused by a slippery substance, likely oil, left on the stairs by Crescent Towing's employees, and an inadequate non-skid surface. Velasquez filed this suit against Crescent Towing alleging that its negligence and the unseaworthiness of the ANGUS R. COOPER caused the accident.

         Crescent Towing filed the instant motion for summary judgment arguing that Velasquez cannot prevail on his negligence claim under § 905(b) of the LHWCA because he cannot prove that Crescent Towing breached one of the duties enumerated in Scindia. Specifically, Crescent Towing argues that there is no evidence that Crescent Towing turned the vessel over to C&W's employees without warning of any latent defects, retained active control of the area in which the C&W's employees were working, or failed to intervene to protect C&W's employees from a hazard of which it was aware. Crescent Towing also argues that a person covered by the LHWCA is precluded from making an unseaworthiness claim against the vessel.

         Velasquez argues that Crescent Towing breached the active control duty outlined in Scindia. Velasquez contends that there are genuine issues of material fact regarding whether Crescent Towing maintained active control of the area in which C&W's employees were working and that it failed to act reasonably in either cleaning up the spilled slippery substance or warning C&W's employees about it.

         ANALYSIS

         I. Summary Judgment Standard

         Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Granting a motion for summary judgment is proper if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits filed in support of the motion demonstrate that there is no genuine issue as to any material fact that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2509-10 (1986). The court must find "[a] factual dispute . . . [to be] 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] ...


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