United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court are Motions for Summary Judgment filed by
Shell Pipeline Company LP (“Shell”) (Rec.
Doc. 30) and Tailing International, LLC
(“Tailing”) (Rec. Doc. 33).
Plaintiff, Juan Carlos Strong, has filed opposition memoranda
responding to Shell (Rec. Doc. 39) and Tailing (Rec. Doc.
40), respectively. Tailing filed a reply. (Rec. Doc. 42).
Considering the motions, the memoranda, the record, and the
law, the Court finds that Tailing's Motion should be
GRANTED and Shell's motion should be
AND PROCEDURAL BACKGROUND
heart of this dispute is a fall that Strong suffered while
working on an offshore platform in federal waters within the
Gulf of Mexico. Shell owned and operated the platform.
Shell hired Strong's employer, Quality Construction &
Production (“QCP”), to do sandblasting and
painting on the platform.
morning of May 12, 2017, Strong was working as a sandblaster
on the platform. He traveled to the tool shed-recently moved
to a new location-with two other QCP employees, Juan Reyes
and Salvador Hernandez. The three were walking from the shed
towards the breakroom when Strong stepped in a small gap in
the grating at the top of a short, improvised stair formed
from gratings and a beam standing at different
elevations. He fell forward, and when he did so he
attempted to stop his fall by sticking out his left
hand. Strong was injured and has since undergone
six surgeries he alleges were necessary because of the
injuries he sustained in the fall. Pictures taken after the
incident offered as summary judgment evidence reveal that the
steps are marked with red paint that is clearly visible to
anyone going up-but not down-the stairs. The parties,
however, dispute whether the red markings were there at the
time of the accident. The step below the one that tripped Strong
is painted yellow in part and this marking would have been
visible to Strong.
had walked down the stairs with the gap two or three times
before, and Strong admitted in deposition that he knew about
the gap and had tried to avoid it in the past. Strong testified
he stepped into the gap this time because: “Salvador
was right in front of me when that happened. I mean I
couldn't avoid it much.”
August 8, 2017, Strong filed suit against Shell for its
alleged negligence for failing to remedy the hazardous gap in
the grating. Strong also claimed in his complaint that
Tailing, Shell's safety advisor, was negligent for
failing to remedy the hazard or ensure that others would
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); Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact
exists, a 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.
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, 1264-65 (5th Cir.
1991). 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.
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.
Outer Continental Shelf Lands Act (“OCSLA”)
applies because Strong fell on a fixed platform located on
the Outer Continental Shelf, off the Louisiana coast.
See 43 U.S.C. § 1333, et seq. OCSLA
directs the Court to apply the law of the state adjacent to
the controversy, so long as state law is not inconsistent
with federal laws and regulations. See 43 U.S.C.
§ 1333(a)(2)(A); Rodrigue v. Aetna Cas. and Sur.
Co., 395 U.S. 352, 355 (1969). Neither the parties nor
this Court have identified any federal law that conflicts
with the Louisiana negligence principles that apply here.
Accordingly, Louisiana law controls.
There is a Factual Dispute as to Whether the Hazard Was Open
asserts claims against both Shell and Tailing under
Louisiana's general negligence statute, La. Civ. Code
art. 2315. Plaintiff also cites to La. Civ. Code art. 2317 as
another vehicle for finding Shell liable. As Shell
acknowledges, the more specific modifying article, La. Civ.
Code art. 2322, which refers to buildings, controls this
The owner of a building is answerable for the damage
occasioned by its ruin, when this is caused by neglect to
repair it, or when it is the result of a vice or defect in
its original construction. However, he is answerable for
damages only upon a showing that he knew or, in the exercise
of reasonable care, should have known of the vice or defect
which caused the damage, that the damage could have been
prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. ...