Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tercero v. Oceaneering International, Inc.

United States District Court, E.D. Louisiana

March 19, 2018

NESTOR TERCERO
v.
OCEANEERING INTERNATIONAL, INC. ET AL.

         SECTION I

          ORDER

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for partial summary judgment filed by defendant Encore Food Services, LLC (“Encore”). For the following reasons, the motion is denied.

         I.

         Plaintiff Nestor Tercero (“Tercero”) was injured while working as a galley hand on board the M/V OCEAN INTERVENTION. At the time he suffered his injuries, Tercero was employed by Encore. Tercero claims he was ordered by his supervisor- a cook employed by defendant Oceaneering International, Inc. (“Oceaneering”)-to clean the ceiling in the mess room of the vessel. Tercero further alleges that, as he was cleaning the ceiling using a two-step stepstool, he lost his balance, placed his foot on a nearby swiveling stool mounted to a galley table, and fell to the floor.

         Tercero sued Encore and Oceaneering, alleging negligence under the Jones Act. Encore argues that Tercero has failed to show that it committed any negligent act or omission. Accordingly, Encore seeks summary judgment as to all of Tercero's claims against it.

         II.

         Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of a material fact, but need only point out the absence of evidence supporting the other party's case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

         Once the party seeking summary judgment carries its burden, the nonmoving party must come forward with specific facts showing that there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt as to the material facts, ' by ‘conclusory allegations, ' by ‘unsubstantiated assertions, ' or by only a ‘scintilla' of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . ., the material may be presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore Logistical and Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017) (quotation omitted).

         The party responding to the motion for summary judgment may not rest upon the pleadings but must identify specific facts that establish a genuine issue. Anderson, 477 U.S. at 248. The nonmoving party's evidence, however, “is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).

         III.

         A.

         “The Jones Act imposes liability on covered employers for ordinary negligence.” Alexander v. Global Fabrication, LLC, No. 10-4421, 2011 WL 2899124, at *4 (E.D. La. July 18, 2011) (Barbier, J.). The standard to be applied to such negligence claims is one of ordinary prudence under the circumstances. Fluker v. Manson Gulf, LLC, 193 F.Supp.3d 668, 674 (E.D. La. 2016) (Fallon, J.).

         Included in the Jones Act duty laid upon an employer is “the broad obligation to provide a safe place for the seaman to work.” Alexander, 2011 WL 2899124, at *4 Indeed, “[t]he law is well-settled” that this duty is “absolute and non-delegable.” Johnson ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.