United States District Court, E.D. Louisiana
M. AFRICK UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
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).
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).
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.).
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