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Strong v. Shell Oil Co.

United States District Court, E.D. Louisiana

March 6, 2019


         SECTION: “J” (5)



         Before 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 DENIED.


         The heart of this dispute is a fall that Strong suffered while working on an offshore platform in federal waters within the Gulf of Mexico.[1] Shell owned and operated the platform. Shell hired Strong's employer, Quality Construction & Production (“QCP”), to do sandblasting and painting on the platform.[2]

         On the 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.[3] 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.[4] He fell forward, and when he did so he attempted to stop his fall by sticking out his left hand.[5] Strong was injured and has since undergone six surgeries he alleges were necessary because of the injuries he sustained in the fall.[6] 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.[7] The step below the one that tripped Strong is painted yellow in part and this marking would have been visible to Strong.

         Plaintiff 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.[8] 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.”[9]

         On 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 remedy it.[10]


         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); 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.

         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, 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.

         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.


         The 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.

         I. There is a Factual Dispute as to Whether the Hazard Was Open and Obvious

         Plaintiff 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 action:

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. ...

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