The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHANNON TURNER CIVIL ACTION
VERSUS NO. 20-2259
GRAND ISLE SHIPYARD LLC, et al. SECTION I
ORDER AND REASONS
Before the Court are motions for summary judgment filed by the defendants.
For the reasons that follow, these motions are DENIED.
Background
This case arises out of a fall suffered by the plaintiff while working aboard a
Shell platform located in the Gulf of Mexico. Under the Outer Continental Shelf
Lands Act, plaintiff seeks damages for his past and future medical expenses as well
as other damages. He asserts that Shell/CNOOC, who operated the platform, and
Grand Isle, who was working on the platform, were negligent in a number of ways.
Primarily, he submits that the defendants failed to ensure a safe working
environment.
The defense at issue in these motions is a defense for contributory negligence.
Mr. Turner was working as a blaster painter at the time of the accident and had more
than 25 years of experience in that profession. On the day of the incident, Mr. Turner
was assigned to spot blast welds and burn marks in a scaffolded area of the platform.
While doing so, he slipped and fell for reasons that are in dispute. In his deposition,
he suggested that sand on the beam could have been the cause of the slip.
The plaintiff fell through a hole in the deck from which grating had been
removed and suffered serious injuries, including possible ruptured discs in his back,
nerve damage, and other severe damage to his back, head, and ribs. He brought suit
for medical and other damages against Shell/CNOOC and Grand Isle. Both sets of
defendants now raise essentially identical motions for summary judgment,1 asserting
that Mr. Turner was contributorily negligent and that he therefore cannot recover.
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment is
appropriate where the record reveals no genuine dispute as to any material fact such
that the moving party is entitled to judgment as a matter of law. No genuine dispute
of fact exists where the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). A genuine dispute of fact exists only “if 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).
The Supreme Court has emphasized that the mere assertion of a factual
dispute does not defeat an otherwise properly supported motion. See id. Therefore,
where contradictory “evidence is merely colorable, or is not significantly probative,”
summary judgment remains appropriate. Id. at 249–50 (citation omitted). Likewise,
1 After Shell/CNOOC filed their motion for summary judgment, Grand Isle filed a
motion for summary judgment in which it “adopt[ed] the Motion for Summary
Judgment, supporting Memorandum, Statement of Uncontested Material[] Facts,
and supporting exhibits filed … [by Shell/CNOOC] in their entirety.”
summary judgment is appropriate where the party opposing the motion fails to
establish an essential element of its case. See Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). In this regard, the nonmoving party must do more than simply deny
the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Expl.
Co., 974 F.2d 646, 649 (5 Cir. 1992). Instead, it must come forward with competent
evidence, such as affidavits or depositions, to buttress its competing claim. Id.
Hearsay evidence and unsworn documents that cannot be presented in a form that
would be admissible at trial do not qualify as competent opposing evidence. Fed. R.
Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5 Cir.
1987) (per curiam).
Finally, in evaluating a summary judgment motion, the Court must read the
facts in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255.
II. Choice of Law
Incidents which occur in federal waters on the Outer Continental Shelf are
governed by the Outer Continental Shelf Lands Act (OSCLA), which provides in part
that “the civil and criminal laws of each adjacent State … are hereby declared to be
the law of the United States for … fixed structures erected [on the outer continental
shelf.” 43 U.S.C. § 1333(a)(2)(A). “Adjacency” is to be determined by reviewing “the
area of the State if its boundaries were extended seaward to the outer margin of the
outer Continental Shelf, and the President shall determine and publish in the Federal
Register such projected lines extending seaward and defining each such area.” Id.
As the President has not yet published such projections, the Fifth Circuit had
identified four “types of evidence” in adjacency analysis, which are: “(1) geographic
proximity; (2) which coast federal agencies consider the subject platform to be ‘off of’;
(3) prior court determinations; and (4) projected boundaries.” Snyder Oil Corp. v.
Samedan Oil Corp., 208 F.3d 521, 524 (5 Cir. 2000). The defendants assert, and
plaintiff does not dispute, that Alabama law applies in this matter.2
III. Contributory Negligence
Alabama law provides that “contributory negligence is a complete defense to
an action based on negligence.” Rowden v. Tomlinson, 538 So. 2d 15, 18 (Ala. 1998).
“In order to prove contributory negligence, the defendant must show that the party
charged 1) had knowledge of the condition; 2) had an appreciation of the danger under
the surrounding circumstances; and 3) failed to exercise reasonable care, by placing
himself in the way of danger.” Id. Additionally, “[a]lthough ordinarily it is a question
of fact for the jury, the question whether a plaintiff is guilty of contributory negligence
becomes a matter of law, and therefore one for the court to decide, when the facts are
such that all reasonable persons must draw the same conclusion therefrom.” Id. This
latter path is to be used only sparingly: “a determination of the existence of
contributory negligence is for the jury where there is a scintilla of evidence to the
contrary.” Hatton v. Chem-Haulers, Inc., 393 So. 2d 950, 954 (Ala. 1980).
IV. Analysis
2 In short, defendants submit evidence showing that at least three of the four types
of evidence noted by the Fifth Circuit support a finding that Alabama law applies.
Most persuasively, defendants submit evidence that blocks both North and West of
the block at issue have been judicially determined to be adjacent to Alabama for
purposes of the OCSLA.
As the plaintiff does not contest that Alabama law applies. The only question
at issue in this motion is, therefore, whether Mr. Turner is guilty of contributory
negligence. In order to support such a finding and grant this motion, the Court must
find that “all reasonable persons must draw the same conclusion” from the facts of
this case as to each of the following three elements. Rowden, 538 So. 2d at 18.
A. Knowledge of the Condition
Defendants contend that sand particles on the beam on which Mr. Turner stood
caused his slip and fall. They further contend that sand particles caused Mr. Turner’s
slip and that he had full knowledge of that condition. During a deposition, Mr. Turner
was asked, “[w]as there anything on the beam that caused you to slip?” In response,
he stated: “You know, you’re blasting with that sand. It probably had … sand
particles sitting on top of it.” On the strength of this testimony, and further testimony
that Mr. Turner was the only person sandblasting in that area on the day of the
accident, defendants submit that Mr. Turner had the requisite knowledge for this
element of the test.
The Court is not convinced. Although defendants submit that “direct
deposition testimony from Turner … clearly state[s] that he slipped in sand particles,”
the testimony only suggests that sand particles were a “probable” cause of the
accident and not a definite cause. And while deposition testimony establishes that
Mr. Turner was aware of the possibility of sand accumulation, it does not establish
that Mr. Turner was aware of any actuality of sand accumulation. The requirement
of actual knowledge for summary judgment is easily discerned from a review of
Alabama case law. In one example, the Alabama Supreme Court affirmed summary
judgment in a case in which a plaintiff placed his hands in machinery that he knew
to be active, open, and exposed. See Rowden, 538 So. 2d at 17-18. In another, the
Alabama Supreme Court affirmed summary judgment in a case in which a plaintiff
had already once passed by a teetering motorcycle which was “in plain view” before
he bumped it, causing it to fall on him. See Brown v. Piggly-Wiggly Stores, 454 So.
2d 1370, 1372. In both cases, alongside others, the actual condition was undoubtedly
known to the individuals. While a reasonable jury may well find that Mr. Turner
knew of the sand particles, the record is not ripe for summary judgment as to that
issue.
B. Appreciation of the Danger
The record demonstrates that Mr. Turner had appreciation of the danger.3 He
was aware of the open holes below the work environment and wore fall protection.
The record also shows that he was aware of the possibility of slipping as he knew that
sand particles often blow into and around the work area. Plaintiff submits that his
use of fall protection implies that he was unappreciative of the danger as he trusted
his fall protection to do its job. This fact, however, only points to the reasonableness
of his care – wearing fall protection is indicative of a knowledge that one needs fall
protection.
C. Failure to Exercise Reasonable Care
3 Although the Court need not reach this or the next element of the test to deny this
motion, it does so for the sake of completeness.
The Court finds there to be a matter of factual dispute as to whether or not Mr.
Turner exercised reasonable care. Defendants submit that the record indicates that
Mr. Turner made no attempt to clean his work area. In deposition testimony, Mr.
Turner stated, “you can blow [sand particles] off you know. But if you got winds, like
just a little light wind, like, it’ll be all on the tarps and everything, and it’ll blow back
… on.” This testimony establishes that Mr. Turner did not typically find it useful to
clean his work area; it does not establish that he did not attempt to do so in the
prelude to this incident. While this distinction is slight, it is sufficient to create a
question of factual dispute. Additionally, given the likelihood that sand particles
would blow back into the workspace, it is a question of factual dispute whether his
alleged decision not to clean the work area was or was not reasonable under the
circumstances.
Moreover, Mr. Turner took precautions against the very thing that happened.
He was wearing fall protection gear (which he alleges to have failed) and there is no
indication that he was distracted, cutting corners, or otherwise acting in an
unreasonable manner.
Defendants also assert that Mr. Turner was unreasonable for failing to
exercise his stop-work authority. That may be the case. Again, however, that is a
determination for the jury to make. The Court does not see enough evidence in the
record to demonstrate that Mr. Turner’s decision to carry on with his work was
unreasonable under the circumstances. Although it was within his power to exercise
stop-work authority at any time during the job, whether or not he should have
exercised that authority at the time of the incident is a matter on which reasonable
minds may disagree. Therefore, the Court cannot grant a motion for summary
judgment on these facts.
V. Conclusion
Mr. Turner may yet be found to have been contributorily negligent. Under one
reasonable reading of the evidence, Mr. Turner was aware of a great accumulation of
sand particles, knew a slip and fall would be especially dangerous at the time, and
failed to exercise his authority to stop working. However, under another reasonable
reading of the evidence, Mr. Turner was aware of the possibility of sand particles and
took the same reasonable precautions he took to do his job every day, only to be let
down by unseen sand and faulty equipment. Where reasonable minds may disagree
as to whether the plaintiff was contributorily negligent, the Court cannot grant
summary judgment.
Therefore, IT IS ORDERED that the defendants’ motions for summary
judgment are DENIED.
New Orleans, Louisiana, February 2, 2022.
NCE M. AFRICK
UNITED SVATES DISTRICT JUDGE