
    Reggie MACK v. KELLOGG BROWN & ROOT, INC. and EPL Pipeline, L.L.C.
    No. 2005-CA-1245.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 2006.
    
      Robert J. Young, Jr., Timothy J. Young, N. Husted DeRussy, Robin R. Klibert, The Young Firm, New Orleans, LA, for Plaintiff/Appellant.
    Charles R. “Chuck” Lane, Halliburton Law Department, James A. Holmes, James F. Holmes, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

h The Appellant, Reggie Mack, appeals the judgment of the district court granting the Motion for Partial Summary Judgment in favor of the Appellees, Kellogg Brown & Root, Inc. (KBR), and EPL Pipeline, L.L.C., thereby dismissing the Appellant’s claims for negligence against EPL and/or KBR, under both the Jones Act and the General Maritime Law. For the reasons that follow, we affirm.

Statement of the Facts and Procedural History

Reggie Mack, while employed as a rigger by KBR, alleges that on, or about, June 17, 2001, he attempted to lift a piece of pipe by himself while working aboard the M/V ALLEN BENOIT ELEVATOR, resulting in his injury. KBR contracted with EPL to provide maintenance and labor. EPL chartered several portable work platforms and lift boats, including the MTV ALLEN BENOIT ELEVATOR, to transport KBR maintenance personnel to EPL’s offshore well jackets and platforms.

Mr. Mack and a co-worker, Tyrone Taylor, were assigned to lift sections of pipe onto a pipe rack so that the pipe could be cut into smaller pieces and |ginstaIIed on one of EPL’s well jackets. At some point during the lifting, Mr. Taylor left the appellant alone for five to ten minutes for an undisclosed reason. It was during this time that Mr. Mack got tired of waiting for Mr. Taylor’s return and decided to try and lift the section of pipe by himself, as stated in his deposition.

The job assigned to Mr. Mack required more than one worker to lift the sections of pipe. There was a crane available on the M/V ALLEN BENOIT for lifting heavier sections of pipe. The record indicates that Mr. Mack and Mr. Taylor would normally do the task together, and that he had never attempted to lift sections of pipe this size alone.

On June 19, 2002, Reggie Mack filed suit in the Civil District Court for the Parish of Orleans against KBR and EPL, claiming negligence under the Jones Act and General Maritime Law. The negligence claims stem from injuries of the alleged incident occurring on or about June 17, 2001 aboard the M/V ALLEN BENOIT.

The Appellees filed a Motion for Partial Summary Judgment on March 16, 2005, asserting that if all facts presented were true, then Mr. Mack could not prove negligence under the Jones Act against KBR, nor could he prove negligence under the General Maritime Law against EPL. The district court granted the Motion for Partial Summary Judgment after a hearing on April 29, 2005. The judgment granting the appellees’ motion was signed on May 18, 2005, and reasons for the judgment were issued and signed on May 24, 2005. This timely appeal followed. Mr. Mack finds error with the district court granting the Motion for Partial Summary Judgment.

| ¡¿Discussion

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s considerations of whether summary judgment is appropriate. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Summary judgment is favored in Louisiana law. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art 966(B).

The burden of proof remains with the mover. Board of Assessors of the City of New Orleans v. City of New Orleans, 2002-0691, p. 8 (La.App. 4 Cir. 9/25/02), 829 So.2d 501, 506. If the moving party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). A fact is material if it is essential to the plaintiffs cause of action under the applicable theory of recovery and if, without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially ensure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir. 12/15/92).

The doctrine of unseaworthiness holds a ship owner absolutely liable for any injuries that result from the unseaworthiness of the vessel. Since the vessel Lowner’s duty to maintain a seaworthy vessel is absolute and nondelegable, it extends even to conditions of unseaworthiness created by third parties without any knowledge on part of the owner. See Foster v. Destin Trading Corp., 700 So.2d 199 (La.1997).

In the present case, neither of the appellees were the owner of the M/V ALLEN BENOIT. EPL rented the M/V ALLEN BENOIT under a time charter agreement for a fixed period of time. Under a charter agreement, the owner leases the vessel out for a fixed period of time to a lessee, while at all times retaining physical possession. Also, under a time charter, the owner is responsible for providing a crew to the lessee for normal operations. It is apparent that neither appellee was the owner of the vessel, therefore, the liability solely rests with that of the actual vessel owner.

The Appellant incorrectly interprets Boudreaux v. U.S., 280 F.3d 461 (5th Cir.2002) as supporting jurisprudence. In Boudreaux, the plaintiff and his co-worker decided to traverse an open deck space while carrying a 300-pound valve. One of the men slipped causing the weight of the valve to shift resulting in an injury to Boudreaux. However, Boidreaux is distinguishable from the matter sub judice because the court held the plaintiff and his co-worker both to be at fault when they decided to complete a task aboard a vessel in an unsafe manner. Also, the only reason the vessel owner and the employer were found to be negligent was because the co-worker’s negligence was imputed to them.

In the present case, Mr. Mack also was working with a co-worker on the day of the incident. However, Mr. Mack’s coworker left him alone for an undisclosed reason for a few minutes. Unlike Bou-dreaux, Mr. Mack grew impatient while waiting for the return of his co-worker, which led to his unilateral decision to act in | san unsafe manner and lift the section of pipe by himself contrary to the specific job assignment. Mr. Mack admitted in his deposition he was not under orders to rush the job and the only reason he proceeded to lift the section of pipe alone was because he was tired of waiting. Since Mr. Mack’s co-worker was not around at the time of the incident, the co-worker’s negligence cannot be imputed to the vessel owner or employer as it was done in Boudreaux.

The Appellees support their argument by citing Breeland v. Falcon Drilling Company, Inc., 98-1790 (La.App. 3rd Cir.5/5/99); 733 So.2d 1217, writ denied, 757 So.2d 196. In Breeland, a seaman filed suit for damages under the Jones Act and General Maritime Law alleging negligence by the employer. The plaintiff cut a steel plate in half, which was then put in place using a crane. After the plate was put into place, the plaintiff needed help to turn it over to remove slag from the underside. The plaintiffs supervisor informed him that help would be on the way to move the plate. Instead of waiting for help to arrive, the plaintiff attempted to lift the plate alone thereby injuring his neck. After filing suit, the trial court ruled there was no employer negligence due to the plaintiffs own negligent act of lifting an object he knew he could not do alone.

In the present case, Mr. Mack also filed suit against his employer under the Jones Act and General Maritime Law alleging negligence. Like Breeland, Mr. Mack knew he needed help to lift the section of pipe he was attempting to lift alone. It is clear from his deposition that Mr. Mack normally completed this task with a co-worker and that he never attempted this type of job alone. The following colloquy appears in the record:

Q. Is that something normally you and Tyrone would do together?
A. Yes, sir.
IfiQ. Had you ever done it by yourself before?
A. No, sir.
Q. Why did you do it by yourself?
A. Well, the job needed doing, and I was tired of waiting on him.

In Foster v. Destin Trading Corp., 96-0803 (La.5/30/97), 700 So.2d 199, the Court found that a plaintiffs own fault will proportionately reduce his recovery for injuries, but if a seaman’s own negligence is the sole cause of his injuries, recovery will be barred. The Appellant’s own negligence in proceeding to accomplish his assigned task in an unsafe manner was the sole cause of his injuries and therefore should be barred from any recovery. 700 So.2d at 209.

Decree

For the reasons stated herein, the judgment of the district court granting the Motion for Partial Summary Judgment in favor of Kellogg Brown & Root, Inc., and EPL Pipeline, LLC is hereby affirmed.

AFFIRMED.

BELSOME, J.,

Dissents with Reasons.

hi respectfully dissent.

Appellant, Reggie Mack, argues that the trial court erred in granting partial summary judgment in favor of KBR and EPL given that genuine issues of material fact exist in this matter regarding the negligent action and omissions on behalf of KBR and EPL, which caused or contributed to Appellant’s accident and resulting injuries.

Appellant seeks recovery through negligence claims under both the Jones Act and General Maritime Law. “Issues of negligence and causation in admiralty cases are treated as fact questions.” Wood v. SubSea International, Inc., 99-1320 (La.App. 4 Cir. 3/29/00); 766 So.2d 563, 568. “In a Jones Act case, evidence of the ‘slightest negligence’ is sufficient to sustain a finding of liability; moreover, the plaintiffs burden to show causation is ‘featherweight.’ ” Lyons v. Fleet Operators, Inc., 96-0148 (La.App. 4 Cir. 6/5/96); 676 So.2d 182, 187. In light of the low burden of proving negligence in a Jones Act claim, summary judgment will rarely be appropriate for disposing of a plaintiff-seaman’s claims.

|2The principle of comparative negligence applies in admiralty cases. However, “[assumption of the risk is not a viable defense in a seaman’s case because a seaman must accept, without protest, and without critical examination, the working conditions and appliances presented as part of his employment ... A seaman’s duty is to do the work assigned, not to find the safest way to perform his work.” Breeland v. Falcon Drilling Co., Inc., 98-1790 (La. App. 3 Cir. 5/5/99); 733 So.2d 1217, 1219 (emphasis added). “Reviewing the issue of the plaintiffs contributory negligence, we keep in mind that a seaman’s duty is to do his work as he is instructed and his duty to protect himself is slight.” Cormier v. Cliff’s Drilling Company, 93-1260 (La. App. 3 Cir. 5/4/94); 640 So.2d 552, 555. A seaman has a limited duty to protect himself while performing an assigned task.

Louisiana adopted the principle of comparative fault in 1996, with the amendment of La. C.C. art. 2323, thus the concept of contributory negligence has been replaced in Louisiana. It provides:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

LSA-C.C. Art. 2323. We read La. C.C. art. 2323 to allow a plaintiff to recover some damages even if he is 99 percent responsible for his injuries.

|sWe now review the evidence that was before trial court. In his deposition, the Appellant explained why he lifted the pipe by himself.

A: Well, I was — Tyrone had left and went somewhere and I was standing there. And I waited and waited, and he never come back. So I picked the pipe up, put it up in the jack stand, that’s when my leg went to burning.
Q: Is that something you and Tyrone would do together?
A: Yes, sir.
Q: Had you ever done it by yourself before?
A: No sir.
Q: Why did you do it by yourself?
A: Well, the job needed doing, and I was tired of waiting on him.

He also testified that he had not received any specific training on the job he was doing at the time he was injured.

Q: Did anybody ever tell you that you weren’t supposed to pick up a piece of pipe by yourself, that you and the guy out there, Tyrone with you, you should only do it together?
A: No, sir.

Appellant testified that the job was not explicitly rushed, but this should be considered in light of the general atmosphere found aboard well jacket jobs. On any outdoor job, the potential for changing conditions creates a sense of urgency in the work. It is also physically demanding work. Additionally, Appellant testified that “the job needed doing.” It seems unfair to penalize a worker for attempting to do his job, when his other option was to remain docile indefinitely waiting on his co-worker to return.

Ivor Smith, a project manager for KBR, testified that he believed it was more appropriate for mechanical means to be used for the type of job Appellant was performing.

Q: Does KBR have any policies, rules or recommendations on whether or not the crane should be used to move 4-inch pipe into the pipe stand?
A: Well, it is a standard practice for mechanical equipment to be used for lifting pipe from one place to another.
|4Q: Does it make any difference on the length of that pipe?
A: It shouldn’t.
Q: Am I correct to say that any time mechanical means can be used to move pipe rather than manual means, you should use the mechanical means?
A: You should it use it absolutely.

He also testified that the crane should have been used to move a section of pipe as large as the piece Plaintiff-Appellant moved when he hurt himself.

Q: If a person was trying to move a 4-foot piece of pipe of 4-inch pipe on the ALLEN BENOIT, to put something that big up into a pipe stand, they should use the crane to do that, right?
A: I would say yes.

James Blair, another KBR employee, also provided deposition testimony. He explained that normally the crane on the ALLEN BENOIT was used to move sections of pipe.

Q: Okay. When you do see the ALLEN BENOIT on your lease, and when you do see employees or people working with those yellow pipe
stands like the ones I circled, and when you do see those same people putting pipe into the pipe stand, what percentage of the time are they using the crane to assist them to put it in the pipe stand, versus manually putting the pipe in the pipe stand?
A: Nearly 100 percent of the time they’re using the crane.
Q: Have you ever seen people manually putting 4-inch pipe onto those pipe stands?
A: Short pieces.
Q: Define “short” for me. What do you mean by that?
A: Maybe four feet or less.

Kim Anderson, a production foreman for EPL, testified that KBR riggers were not given guidelines on how much pipe they should lift.

Q: Are the KBR riggers given any guidelines on the largest length of pipe, four-inch, that they should try to manually put into the pipe stands out there?
A: No.
Q: Does EPL provide any schooling or training to the KBR riggers specifically on the maximum amount of weight one person should try to pick up?
A: No ...

| ¡¡Thus, we know the following: oil rig work is demanding; Appellant wanted to finish his job; Appellant had no one to help him do the job; a crane is the recommended way to move large sections of pipe; a crane was available but was not being used; Appellant had no mechanical means at his disposal to help him do the job; and, KBR and EPL provided no formal limits on lifting pipe.

The law of the Fourth Circuit provides that the reasonableness of a seaman’s actions in the face of a known risk is a question of fact. “Where an employee takes actions pursuant to the discharge of his employment duties in the face of a known risk, which actions are reasonable in relation to those duties, then the employee is not comparatively negligent ... What actions are reasonable under the circumstances is a question of fact to be determined by the factfinder.” Wood v. SubSea International, Inc., 99-1320 (La. App. 4 Cir. 3/29/00); 766 So.2d 563, 569 (emphasis added). The Court in Wood continued: “Factors to be considered in determining what is reasonable include the availability and practicability of other options.” Id. at 569.

In light of these facts and the law on a seaman’s reasonable behavior, we believe Appellant produced “factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” La. C.C.P. art. 966(C). Namely, KBR’s and EPL’s acts and omissions contributed to Appellant’s behavior and ultimately his injury. Appellant’s decision to lift the pipe by himself may have been risky; but it also appears reasonable considering the dearth of other available options. As reasonableness is a question for a factfinder, Appellant’s claims should not have been thrown out on summary judgment.

KBR and EPL rely on Boudreaux v. U.S., 280 F.3d 461 (5th Cir.2002), and Breeland, supra,, to support their position. These cases may be factually analogous to the case at hand. However, what is significant about Boudreaux and Breeland is | fithat they both went to trial and were not disposed of on summary judgment, which is the appropriate disposition of Appellant’s case.

Appellant’s decision to lift the pipe without assistance may or may not have been reasonable in the face of the acts and omissions by KBR and EPL. But that is a question for the factfinder. For the reasons discussed, Appellant’s case should not be inappropriately circumvented by the summary judgment process. Therefore, I would remand the case to the trial court for further proceedings. 
      
      . Appellees have not conceded that Appellant is a seaman; however, they feel "that even if plaintiff is found to be a Jones Act Seaman, he will not be able to recover damages under the statute, nor will he be able to recover damages under the General Maritime Law because the undisputed facts show that no negligence can be proved against either KBR or EPL.”
     