Petition for Writ of Certiorari — Prudhomme v. Tenneco Oil Co.

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du JUN 10 1992

DOCKET NUMBER DAFICE OF THE GLERK

UNITED STATES SUPREME COURT

JUNE, 1992

ANTHONY C. PRUDHOMME, ET AL

VERSUS

TENNECO OIL COMPANY, ET AL

ON REHEARING BY

THE UNITED STATES COURT. OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

HOMER ED BAROUSSE, JR.

ATTORNEY FOR ANTHONY C. PRUDHOMME

and HENRIETTA G. PRUDHOMME

BAR ROLL NUMBER 2806

POST OFFICE DRAWER 730

CROWLEY, LOUISIANA 70527-0730

TELEPHONE: (318) 783-7000

4 |

QUESTIONS PRESENTED FOR REVIEW

+ When the Court of Appeal concludes

that the District Court has abused its

discretion in a material fashion which is

prejudicial to one defendant, is the

proper remedy a dismissal of the

plaintiffs' case or a remand for further

proceedings consistent with the

guidelines issued by the Court of Appeal

directed to the District Court?

Eis When a District Court abuses its

discretion in a material fashion, is the

integrity of the judicial system best

preserved by placing the parties in the

same position as they were before the

abuse of discretion occurred?

a

III. Whether a case involves either

general negligence or fault based

strict liability, when the evidence is

the same regardless of the theory of

liability, is it an abuse of discretion

to apply the evidence to the theory

adopted by the District Court?

)

yA

LIST OF ALL PARTIES

PLAINTIFFS:

ANTHONY C. PRUDHOMME

HENRIETTA PRUDHOMME

DEFENDANTS :

TENNECO OIL COMPANY

BOOKER DRILLING COMPANY

D/B/A GRACE OFFSHORE COMPANY

WESTERN ATLAS OFFSHORE COMPANY

CNA INSURANCE COMPANY

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

I. 28 U.S.C., Section 2106

The Supreme Court or any other

court of appellate jurisdiction may

affirm, modify, vacate, set aside or

reverse any judgment, decree, or order of

a court lawfully brought before it for

review, and may remand the cause _ and

direct the entry of such’ appropriate

judgment, decree, or order, or require

such further proceedings to be had as may

be just under the circumstances. (June

25, 1948, ¢. 646, Stat. 963.)

oe Cases

Page

Durand v. Elrod, 760 F.2d 7°6

fe. Bek he | reer ree ee 17

Moore v. Telefon Communication

Corp., 589 F.2d 959

ee a) OPO rs one aa kee eee ae 18

Colonial Refrigerated Transpor-

tation, Inc. v. Worshan,

703 Fed S2i (SER CSF... 1983) eacecr 18

Torres Ramirez v. Bermudez Garcia,

Soe £.4G 4246 TiSt Cake APOE sacceee 20

Jahnke Construction Co. v.

Vulcan Materials Co., 527 F.2d

Tee UTE GObek BETOE 2.6066 6466608660808 20

CO

GROUNDS ON WHICH JURISDICTION IS INVOKED

The date of the entry of judgment

sought to be reviewed in this matter is

April 13, 1992.

The jurisdiction of this Honorable

Court is based upon 28 U.S.C., Section

1254(1) :

"Cases in the courts of appeals may

be reviewed by the Supreme Court by

the following methods: (1) By

writ of certiorari granted upon the

petition of any party to any civil

or criminal case, before or after

rendition of judgment or decree;

~

I

STATEMENT OF THE CASE

Anthony C. Prudhomme was employed

by Western Atlas Offshore Company

("Western"), an oil and gas_ service

business. Grace Offhore Company, Inc.

d/b/a Booker Drilling Company ("Booker"),

was a drilling contractor engaged in oil

and gas exploration on the Outer

Continental Shelf. Tenneco Oil Company

owned a stationary platform known as

Shipshoal 198J, located approximately 100

miles offshore. Tenneco contracted with

Booker to drill for oil and gas on its

lease, and contracted with Western to

"log" the hole after it was drilled by

Booker.

On or about August /11, 1988, while

Booker was engaged in drilling

activities, a hydraulic hose attached to

CO

a piece of its equipment burst, causing

hydraulic oil to spill below’ where

plaintiff was working. As Prudhomme was

moving about on the deck below, he

slipped and fell in the hydraulic oil

spill, thereby sustaining injuries to his

lower back.

In March of 1989, Prudhomme filed a

complaint in the United States District

Court, Western District of Louisiana,

against Tenneco Oil Company and Booker

Drilling Company, alleging theories of

liability predicated upon general

negligence and under Louisiana Civil Code

Article 2317 and related articles on

strict liability.

In November of 1990, a pre-trial

conference was conducted before the

(

Honorable Richard J. Putnam, District

Court Judge for the Western District of

CC

Louisiana. The pre-trial stipulation

included theories of liability under

general negligence and strict liability.

In December, 1991, Prudhomme filed an

amendment to the original complaint

specifically alleging strict liability

against Booker, which was_ subsequently

withdrawn for reasons not stated.

On March yi 1991, proposed

Findings of Fact and Conclusions of Law

submitted by all parties addressed the

issues of negligence and strict

liability.

On April 3, 1991, the date of

trial, an extensive discussion was held

in Chambers presided over by District

Judge Putnam. At that time, counsel for

Booker raised a perfunctory objection to

plaintiff proceeding on a theory of

strict liability, which was promptly

10

iat

overruled by the court. Prior to

commencement of trial, on record, Booker

preserved itsS argument. The court's

ruling was the same as in Chambers.

Following two days of testimony,

the trial court concluded that the

hydraulic hose which had burst and caused

the oil spill below was defective and

that Booker was liable under a theory of

strict liability.

On appeal, the United States Court

of Appeal for the Fifth Circuit held that

the District Court abused its discretion

when it permitted Prudhomme to proceed on

the basis of strict liability, in effect

reversing the District Court's judgment

against Booker .on the theory of strict

liability. The Court of Appeal concluded

that since there was no appeal on the

issue of whether Booker was negligent,

Ae

that "the Prudhommes take nothing",

thereby completely vacating the judgment

of the District Court. On rehearing, the

plaintiff argued that the decision by the

Court of Appeal constituted a reversal of

a finding of fact by the lower court and

that proper recourse should be a remand,

where both parties are placed in a

position at the cime of the alleged abuse

of discretion.

ARGUMENT

The Court of Appeal incorrectly

reversed the trial court after a finding

of abuse of discretion instead of

remanding the case for further proceeding

consistent with the holding of the Court

of Appeal. Its decision meant that

plaintiff is denied all relief after:

having proved fault on the premise of

strict liability following two days of

testimony and rendering reasonably based

findings of fact and application of law,

albeit on a theory allegedly not pled.

In this situation, a remand is’7 the

appropriate remedy.

The fact situation was- simple.

Both plaintiff and defendant were

subcontractors, working on a stationary

platform on the Outer Continental Shelf.

A hydraulic hose owned by defendant

13

’

ruptured, thereby causing hydraulic oil

to spill on the deck below where

plaintiff was working. Plaintiff walked

across the aisle and slipped and fell.

Plaintiff filed suit against the

defendants, alleging that Booker had

failed to properly maintain drilling

equipment to prevent a leakage of fluids

from above to a deck below, thereby

creating a hazardous condition.

The evidence presented included the

testimony of Charles Cavin and Paul

Callahan, both senior supervisors” and

employees of Booker, and eyewitnesses to

the accident, from whose testimony it was

proven that the hydraulic hose had burst

under normal working pressure. This

constitutes a defective condition under

Louisiana law, imposing strict liability

upon Booker, who was’ responsible for

14

ll

properly maintaining the equipment. The

hose which had burst had been discarded

and was not available for trial. Little,

if any, other evidence could have been

presented before the court. Therefore,

in these circumstances under Louisiana

Civil Code Article 2317, where the party

in control of a thing which is defective

causes harm to another, that party is

legally responsible for the victim's

damages.

On the morning of trial, Booker

objected to plaintiff pursuing a claim

against Booker on the premise of strict

liability (a defective hose). The trial

court overruled Booker and held that

considering the pre-trial pleadings,

motions, arguments, and memoranda, the

issue of strict liability was properly

before the court and that no party was

15

prejudiced. Furthermore, the record at

page 5 reflects not only the court's

reasoning, but also the understanding of

counsel for co-defendant, Tenneco:

THE COURT: That's your

understanding of the case? What

was your understanding of the case?

MR. MARTIN (counsel for Tenneco,

co-defendant) : Your Honor, my

understanding of the case, there

was allegations in the plaintiff's

petition.

THE COURT: Specifically say that

Tenneco is liable on strict

liability as the owner of the

platform?

MR. MARTIN: I didn't say as owner

of the platform. The allegations

against Booker in Paragraph 6, B-4

indicates that the plaintiff is

contending they are liable to him

for, I quote, failure to properly

maintain and inspect the drilling

equipment to prevent a leakage of

fluids from above to a deck below,

thereby creating a hazardous

condition; and my position is that

that would be sufficient to state a

claim for product defect or

liability in 2317. Of course, I am

not commenting one way or the other

as to whether or not the plaintiff

16

ll

Can prove a defect or not; but I

think the pleadings are broad

enough to include that allegation

against Booker, Your Honor. But

there was an allegation against

Tenneco, and of course for strict

liability. SO we are not really a

party to this argument.

Nonetheless, the Court of Appeal

concluded that the trial court abused its

discretion in allowing plaintiff to

proceed on a theory of strict liability.

Clearly, the Court of Appeal should have

remanded, rather than reversed, thereby

placing both parties in a position where

the alleged abuse of discretion occurred.

Ordinarily, in a case where the

district court judge has failed to

exercise his discretion properly, the

remedy is to remand for a further

exercise in such discretion. Durand v,

Elrod, 760 F.2d 756 (7th Cir., 1985).

Consistent with this approach, the Ninth

it a eaeeccnsniiaiaeiaaaaaaeeiei ie

Circuit has held that in a_=e situation

where the record is unclear what the

district court judge intended, nothing

could be accomplished by guessing what

the district court judge intended, and

the appropriate disposition is remand.

Moore Vv. Telefon Communication

Corporation, 2989 F.2d 959 [sth Cis.,

1978). See, also, Colonial Refrigerated

Transportation, Inc. ¥; Worsham, 705

F.2d 821 (6th Cir., 1983).

The decision by the Court of Appeal

dismisses plaintiff from court and

creates a prohibited advantage to Booker

\

because not only are the parties placed

in a different position at the time of

the alleged abuse of discretior, but the

defendant completely escapes liability

where the facts proven have established

fault. This decision by the Court of

18

Appeal establishes a standard for review

wherein reviewing courts can simply

reverse a reasonably based finding of

fact on the premise that the District

Court has abused its discretion. Such a

result is entirely inconsistent with the

existing standard of review by higher

courts of an abuse of discretion by the

district courts.

The pleadings set forth by

plaintiff are broad enough to include the

theory of strict liability relied upon by

the trial court. The appellate courts

review the facts to find (1) whether the

pleadings were consistent with the theory

relied upon by the court and (2) whether

there was some evidence to support the

court's finding.

It is inconceivable that Booker did

not realize that plaintiff was pursuing a

19

claim against it on the established fact

that its hose had burst under normal

working pressure, a fact that was

established by the testimony extracted

from its own witnesses. Our courts have

consistently held that the district court

must construe pleadings liberally and the

defendant must be placed on adequate

notice concerning theories of liability.

The purpose of the pleadings is to give

adequate notice to defendants of its

cause of action. See Torres Ramirez v.

Bermudez Garcia, 898 F.2d 224 (lst Cir.,

1990). In Jahnke Construction Co. v.

Vulcan Materials Co., 527 F.2d 772 (7th

Cir., 1976), the court was faced with the

issue as to whether the district court

erred in deciding its case on the theory

of promissory estoppel, which was not

pled. Plaintiff had pled a contract

20

’

theory of express warranty. In

concluding, the court held that the

pleadings were broad enough to include a

‘theory relied upon by the court, and that

where substantial evidence supported the

court's findings, the alternate theory

decision was proper. Similarly, the

finding under strict liability by the

district court in Prudhomme was

sufficiently pied where the defendant had

adequate notice in the pleadings, and

especially where the evidence

overwhelmingly supported the judge's

finding of a defect.

CONCLUSION

In the interest of justice and

without prejudice to Booker, this matter

should be remanded back to the district

court with instructional guidelines to

“a

21

-_

| aie.

remedy any abuse of discretion and place

both parties at the position at the time

of the abuse. Remand, not reversal of

judgment, should have been ordered by the

Court of Appeal. Alternatively, the

decision by the Court of Appeal should be

reversed, and the decision by the

district court reinstated for either the

reason that the district judge did not

abuse his discretion, or that the

pleadings were broad enough to

incorporate the theory relied upon by the

district court judge.

—

APPENDIX

; Page

Lis Complaint for Damages, dated

EEE Oe EDOSD caccccccecececes i

ae Joint Pre-Trial Stipulations,

Meeee JULY 23, 1990 .ccccccccs liv

5 Findings of Fact and

Conclusions of Law rendered

May 3, 1991 by the Honorable

MAGE 2. PUCTIOM ccccccccecs Xiv

4. Judgment rendered May 3, 1991

by the Honorable Richard J.

DUE SGC bueesersenccccccece xXV

_- Synopsis of Opinion dated

March 13, 1992 by the Fifth

Circuit Court of Appeals .... xxix

6. U.S. Court of Appeals for the

Fifth Circuit Denial of

Petition for Rehearing,

dated April 13, 1992 ....... lxvii

“aa

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

ANTHONY C. PRUDHOMME CIVIL ACTION

and HENRIETTA PRUDHOMME

NO. CV89-0708

VERSUS

SECTION “"L"

TENNECO OIL COMPANY and

BOOKER DRILLING COMPANY

d/b/a GRACE OFFSHORE

COMPANY

JUDGE DUHE

+ + +e + * *

MAG. METHVIN

*

KkKKK KKK KKK KKK KKK KKK KKK KKK KKK K KKK KK KKK

COMPLAINT FOR DAMAGES

TO THE HONORABLE, THE ABOVE DESIGNATED

COURT:

The complaint of ANTHONY C.

PRUDHOMME and HENRIETTA PRUDHOMME,

hereinafter referred to as complainants,

husband and wife, and both persons of the

full age of majority, and with respect

represents:

hs

This Court has jurisdiction by

virtue of 43 USC 1331, et seg, the Outer

i

ieee

Continental Shelf Lands Act.

os

The following parties are cited

herein as defendants, TENNECO OTL

COMPANY, a foreign corporation

authorized to do and doing business in

the State of Louisiana, and in the

Western District, and BOOKER DRILLING

COMPANY, d/b/a GRACE OFFSHORE COMPANY, a

domestic corporation, authorized to do

and doing business in the State of

Louisiana.

B. BOOKER DRILLING COMPANY d/b/a GRACE

OFFSHORE COMPANY negligence:

1) Failure to properly maintain and

inspect the floor where complainant

Slipped and fell, and place it in a

r

condition reasonably safe for complainant

3 7-4

and free from defects and conditions

rendering it unsafe;

| ee

2) Failure to warn complainant of the

dangerous and unsafe condition existing;

3) Failure to properly maintain and

inspect the premises to prevent such

unsafe conditions from existing;

4) Failure to properly maintain and

inspect the drilling equipment to prevent

a leakage of fluids from above to a deck

below, thereby creating a hazardous

condition.

EDWARDS, STEFANSKI, BAROUSSE,

CUNNINGHAM, STEFANSKI & ZAUNBRECHER

ve Michael Stefanski, Attorney for

Complainants

P.O. Drawer 730, Crowley, LA 70527

March 30, 1989

iil

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

ANTHONY C. PRUDHOMME CIVIL ACTION

and HENRIETTA PRUDHOMME

NO. CV89-0708

VERSUS

SECTION "O"

TENNECO OIL COMPANY and

BOOKER DRILLING COMPANY

d/b/a GRACE OFFSHORE

COMPANY * MAG. METHVIN

KEKE KEKE KEKE KEKE KKEKE KEE KEKE KKEKEKEKEKKKKEKE

JUDGE PUTNAM

+ e+e ee ee

JOINT PRE-TRIAL STIPULATIONS

A conference of attorneys was held

in the above entitled cause on the 3lst

day of July, 1990.

a) J. Michael Stefanski appeared

as counsel for ANTHONY C. PRUDHOMME and

HENRIETTA PRUDHOMME;

b) Shawn O'Neill appeared as

counsel for TENNECO OIL COMPANY;

c) Fred T. Hinrichs and Charles W.

Schmidt, III, appeared for GRACE OFFSHORE

COMPANY: and

iv

d) C. Dean Domingue appeared as

counsel for Intervenor, WESTERN ATLAS

OFFSHORE COMPANY and CNA INSURANCE

COMPANY.

A Jurisdiction is established

under 22 U.S.C. 901, et seq., the

Longshore and Harbor Workers'

Compensation Act through the Outer

Continental Shelf Lands Act, 42 U.S.C.

1331, et seq.

re There is a pending Motion for

Summary Judgment filed on behalf of

TENNECO OIL COMPANY, and a pending Motion

for Summary Judgment filed on behalf of

GRACE OFFSHORE COMPANY.

cP In general, the plaintiff

claims:

The plaintiff claims that on or

about August 11, 1988, he slipped and

fell on a substance identified as

hydraulic oil on the deck of a stationary

platform, Ship Shoal 198-J located on the

Outer Continental Shelf. The platform

was owned by TENNECO OIL COMPANY, and

GRACE OFFSHORE COMPANY was contracted by

TENNECO OIL COMPANY to drill “Well No.

o." The hydraulic oil originated from a

hydraulic hose which had burst on the

drill floor just above where plaintiff

was working. The oil spilled below on

the steel deck. Plaintiff was employed

by WESTERN ATLAS OFFSHORE COMPANY as a

wireline operator, and he was working on

his equipment below the drilling

platform, preparing to conduct wireline

operations as soon as the drill crew had

finished their job. Plaintiff was

walking to use the restroom, when he

slipped and fell on the hydraulic oil,

landing on his tailbone.

vi

Plaintiff alleges that as a result

of his accident, he had sustained a disc

injury which will require surgery. As a

result of his’ injuries, plaintiff is

suing drilling contractor for causing the

0il spill, and TENNECO OIL COMPANY owned

the platform.

4. In general, the defendants'

claims:

TENNECO OIL COMPANY:

Although the plaintiff is claiming

injuries as a result of a slip and fall

accident which occurred on TENNECO OIL

COMPANY'S fixed drilling platform located

at Ship Shoal Block 198, TENNECO OIL

COMPANY cannot be assessed with any

liability in this litigation. Although

TENNECO OIL COMPANY was the owner of the

rig, an independent contractor, GRACE

OFFSHORE COMPANY, also made a defendant

vil

in this matter, had been employed by

TENNECO to perform the entirety of the

workover operations which were taking

place on the platform in question.

TENNECO OIL COMPANY as_ the principal

cannot be held liable for the negligence,

strict or otherwise, of its independent.

contractor.

GRACE OFFSHORE COMPANY:

GRACE denies that it was negligent

in any way for plaintiff's alleged

accident. Defendant acknowledges’ that

plaintiff claims to have slipped in

hydraulic oil on the TENNECO platform

deck below the rig floor. GRACE also

acknowledges that~- during the course of

its workover operations on the TENNECO

platform, a hydraulic hose attached to a

Foster Power Tong Unit ruptured, leaking

a small amount of hydraulic fluid. The

Vili

|

GRACE driller, Mr. Charles Cavin,

immediately sent floorhand Melvin

Guidroz, Jr. from the rig floor to the

platform deck to look for any oil that

may have leaked from the busted hydraulic

hose to the platform deck below. Mr.

Guidroz proceeded immediately to- the

platform deck below the rig floor, and

arrived on the alleged accident scene

within two to three minutes of the

rupture of the _ hose. If plaintiff's

injury occurred as alleged, which is at

all times denied, it occurred within an

extremely brief time period of two to

three minutes, the time it took Mr.

Melvin Guidroz to travel from the rig

floor to the TENNECO platform deck below

the rig floor. Defendant GRACE submits

that under these circumstances, it would

be afforded a reasonable amount of time

to take corrective measures and to remedy

any dangerous condition. GRACE satisfied

its duty under the law by immediately

dispatching a floorhand to the platform

deck,

WESTERN ATLAS OFFSHORE COMPANY AND CNA

INSURANCE COMPANY, _ Intervenors:

In general, intervenors, WESTERN

ATLAS OFFSHORE COMPANY and CNA INSURANCE

COMPANY claim that it has paid to or on

behalf of ANTHONY PRUDHOMME a total of

$8,642.00 in indemnity payments, and

98,515.00 in medical payments, pursuant

to the Longshoreman and Harbor Workers’

Act, as a result of an accident that

—

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.

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occurred on or about August

when ANTHONY PRUDHOMME was employed by

WESTERN ATLAS OFFSHORE COMPANY as a

wireline operator. P

G COMPANY drilling

on a BOOKER DRILLING

rig, said BOOKER DRILLING rig performing

drilling operations on a fixed production

platform on the Outer Continental Shelf,

said platform being owned and operated by

TENNECO OIL COMPANY. CNA INSURANCE

COMPANY was the Longshore and Harbor

Workers' compensation insurer of WESTERN

ATLAS OFFSHORE COMPANY at the time of the

cause of action. The accident was caused

exclusively by the negligence’ and/or

strict liability of defendants, BOOKER

DRILLING COMPANY d/b/a GRACE OFFSHORE

COMPANY and/or TENNECO OIL COMPANY.

7. The contested issues of law are:

COMPLAINANTS:

a) Are the defendants subject to

strict liability under Louisiana law or

the defendants liable under general

negligence.

TENNECO OIL COMPANY:

x1

The contested issues of law include

whether there was negligence on the part

of any party under Louisiana Civil Code

APUSCLGn Bats, 2317 or 2322. The issue

of a principals culpability for the acts

of an independent contractor over which

the principal has no operational control

is also present in this litigation.

GRACE OFFSHORE COMPANY:

a) Negligence of GRACE OFFSHORE

COMPANY, INC.;

b) Negligence and/or comparative

fault of plaintiff;

c) Negligence of other parties;

d) Whether the negligence of any

party was the legal cause of plaintiff's

alleged accident and injuries;

e) Nature and extent of

plaintiff's damages;

X1li

f ) All those issues of law

implicit in the above statements of fact.

EDWARDS, STEFANSKI, BAROUSSE, CUNNINGHAM,

STEFANSKI & ZAUNBRECHER

J. MICHAEL STEFANSKI, Attorney for

Complainants, Crowley, LA

SHAWN O'NEILL, Attorney for Tenneco Oil

Company, Lafayette, LA

FRED HINRICHS, Attorney for Booker

Drilling Co. d/b/a Grace Offshore Co.,

New Orleans, LA

July 23, 1990

X111

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

ANTHONY C, PRUDHOMME

and HENRIETTA PRUDHOMME

CIVIL ACTION

NO. CV89-0708

- VERSUS

SECTION "L"

TENNECO OIL COMPANY and

BOOKER DRILLING COMPANY

d/b/a GRACE OFFSHORE

COMPANY * MAG. METHVIN

KKK KKKKKKK KKK KKKEKKEKKKKKKKKK KKK KKK KKK KKK

JUDGE DUHE

+ + + * + * F &

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FINDINGS OF FACT

Le

On August i 1988, Anthony C.

Prudhomme was employed by Western Atlas

Offshore as a wireline operator and was

working aboard a Stationary platform

identified as Shipshoal 198-J on the

Outer Continental Shelf.

ie

Tenneco Oil Company owned the

Xiv

platform, and Booker Drilling Company

d/b/a Grace Offshore Company, was

contracted by Tenneco to perform workover

operations.

ie eM

As Booker wasS coming out of the

hole and breaking out pipe, a hydraulic

hose attached to a Foster power tong unit

ruptured while in normal use and under

pressure, causing oil to spew from the

rig floor to the lower Tenneco platform

deck where plaintiff was walking. Booker

owned and had custody of the hose and

power tong unit.

AV

The Booker driller responded

immediately to the break in the hose by

dispatching a floorhand to the lower deck

to clean up any hydraulic fluid which may

have spilled onto the lower deck.

xV

Ve

As Anthony Prudhomme left his work

area to go to the galley, he walked

across the area where the oi] had

spilled, and slipped and fell, sustaining

an injury to his back. As a result of

the accident, Prudhomme did not return to

work. He eventually was incarcerated on

Or about February 15, 1990 for criminal

charges to which he pled guilty.

Prudhomme was sentenced to life

imprisonment.

Vie

For three years prior to his

accident, Prudhomme was earning wages

which averaged $22,635.00 annually.

Also, separate and apart from his

workmen's compensation intervention,

Prudhomme sustained $7,000.00 in medical

expenses in addition to the medica]

%Vi]

expenses paid by CNA Insurance Company as

set out below.

VII.

Prudhomme was working in the course

and scope of his employment at the time

he was injured. CNA Insurance Company

was the workman's compensation insurer of

Western Atlas and CNA paid to or on

behalf of Prudhomme a total of $8,898.07

in medical benefits and $8,642.00 in

indemnity compensation benefits.

Vidde

Western Atlas and CNA filed a

petition of intervention in these

proceedings seeking reimbursement of the

amounts paid to or on behalf of Prudhomme.

IX,

The accident occurred on ae fixed

platform on the Outer Continental Shelf

off the Louisiana coast and Prudhomme is

XVii

covered by the Longshore & Harborworker's

Compensation Act. Louisiana law applies

pursuant to the Outer Continental Shelf

Lands Act, 43 U.S.C.A. Sec. eke

specifically Sec. 1333(a) (2) (A).

CONCLUSIONS OF LAW

Es

Under Louisiana Civil Code Article

reper the owner or custodian of a

defective thing which causes injury to

another is responsible for damages caused

by the defective thing. See Loescher v.

Parr, 324 So.2d 441 (La. 1975). The

hydraulic hose ruptured under _ normal

working conditions as Booker was

attempting tc break pipe. The cause of

the rupture is unexplained, however, the

rupture itself indicates that the hose

was defective. This analysis can be

found also in Vicknair v. T.L. James,

XViii

375 So.2d 960 (La. App. 4th Cir., 1979),

where a metal rim lock came loose after a

truck tire blew out. The rim lock rolled

across the highway and struck the

plaintiff. The owner of the truck was

held liable for damages caused by the rim

lock which was found to be defective.

Also, in Ross v. Lewis, 446 So.2d 1322

(La. App. 2d Cir., 1984), the defendant

was held liable when a person was injured

by a car battery that exploded under

normal use, See also Robertson v. Gulf

South Beverage, Inc., 421 So.2d 877 (La.

1982). We hold that Booker is~ liable to

plaintiff for his injuries under this

line of jurisprudence.

i

We further find that the plaintiff

was 50% contributorily or comparatively

at fault in failing to see the hydraulic

xix

rT

oil on the deck where he was walking, and

his recovery will be reduced accordingly.

ee

Since there was no evidence of

negligence against Tenneco Oil Company,

or evidence that Tenneco Oil Company

owned the piece of equipment which caused

the oil spill, or that the equipment was

permanently attached to Tenneco's

platform, any and all claims by plaintiff :

against Tenneco Oil Company are hereby

dismissed.

aV.

Since the evidence shows that

Booker took immediate action to clean up

“the spill on the lower deck and _ used

reasonable care under the circumstances,

the court finds that” Booker was not

negligent under’ Louisiana Civil Code

Article 2315. és

xX

V.

Damages for Anthony C. Prudhomme

are assessed as follows:

Lost wages (from 8/11/88 $33,042.00

~ through 2/15/90)

Pain and suffering $35,000.00

Unpaid medical expenses $ 7,000.00

Medical expenses paid $ 8,898.00

by employer

SUBTOTAL $84,840.07

Less 50% comparative $42,420.04

fault

TOTAL DAMAGES $42,420.03

Damages for Henrietta Prudhomme

loss of consortium are assessed

follows:

Loss of consortium $ 5,000.00

Less 50% for Anthony $ 2,500.00

Prudhomme's comparative

fault

TOTAL $2,500.00

xxi

for

as

Whe

The law is well settled that an

employer and his’ worker's compensation

insurer are subrogated to the rights of

the injured employee to the extent of

payments made to or on behalf of the

employee. LHWCA, 33 U.S.C. Sec. 933 (h).

Such recovery by the employer and its

insurer is to be paid by preference and

priority out of any recovery from third

parties without reduction for plaintiff's

fault. LHWCA, 33 U.S.C. 933 (e). See

also Ochoa Vv. Employers National

Insurance Co., 724 F.2d 1171 (5th Cir.

1984).

Wik

Any excess amount awarded to the

plaintiff entitles the employer and

insurer to a credit against any future

benefits owed. LHWCA, 33 U.S.C. Sec.

xxii

933(f); Petro-Weld, Inc. v. Luke, 619

F.2d 418 (5th Cir. 1981).

Viis«

Western Atlas Offshore and CNA

Insurance Company are entitled to

judqment | in the total amount of

$17,540.07 by preference and priority and

payable out of any judgment proceeds owed

by the defendants to the plaintiff.

Id.

Western Atlas Offshore and CNA

Insurance Company are also entitled to

judgment that any payments made to

plaintiff by defendants in excess of

$17,540.07 operate as a credit. against

any payments due to plaintiff in the

future as compensation benefits under the

Longshoremen & Harbor Workers'

Compensation Act by Western Atlas

Offshore and CNA Insurance Company.

xxiii

Lafayette, Louisiana, this 3rd day

of May, 1991.

RICHARD J. PUTNAM, UNITED STATES SENIOR

DISTRICT JUDGE

XX1V

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

ANTHONY CC, PRUDHOMME * CIVIL ACTION

and HENRIETTA PRUDHOMME

NO. CV89-0708

VERSUS

SECTION "O"

TENNECO OIL COMPANY and

BOOKER DRILLING COMPANY

d/b/a GRACE OFFSHORE

COMPANY * MAG. METHVIN

RR KKK KK RK KKK KK KKK KK KK KKK KKK KKK KKK KE KKK

JUDGE PUTNAM

+t te ee Fe

JUDGMENT

After hearing the pleadings,

evidence and arguments of counsel, and

Stipulations, the court considering the

law and evidence to be in favor of the

plaintiffs, Anthony and Henrietta

Prudhomme, and also in favor of the

intervenors, Western Atlas Offshore and

CNA Insurance Company, and against the

defendant, Booker Drilling Company d/b/a

Grace Offshore Company, for the reasons

as orally assigned;

XXV

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that there be judgment herein in

favor of plaintiff, Anthony Prudhomme,

and against Booker Drilling Company d/b/a

Grace Offshore Company, in the amount of

FORTY-TWO THOUSAND FOUR HUNDRED TWENTY

AND 03/100 ($42,420.03) DOLLARS, together

with interest thereon as provided by law,

until paid, and for all costs of these

proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in

favor of intervenors, Western Atlas

Offshore and CNA Insurance Company, and

against Booker Drilling Company d/b/a

Grace Offshore Company, and plaintiff

Anthony Prudhomne, in the sum of

SEVENTEEN THOUSAND FIVE HUNDRED FORTY AND

07/100 ($17,540.07) DOLLARS, together

with interest thereon as provided by law,

XXVi

until paid, and for all costs of these

proceedings; said judgment in favor of

intervenors to be paid by preference and

priority out of the judgment rendered

above in favor of Anthony Prudhomme.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Intervenors are hereby

entitled to a credit and offset for any

judgment award in favor of Anthony

Prudhomme which is in excess of

Intervenors' judgment award, less Anthony

Prudhomme's attorney's fees; said credit

and offset to be against any liability

Intervenors might otherwise owe to

plaintiff, Anthony Prudhomme, under the

Longshore and Harbor Worker's

Compensation Act (LHWCA) or the worker's

compensation laws of any state.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in

XXVil

favor of plaintiff, Henrietta Prudhomme,

and against booker Drilling Company d/b/a

Grace Offshore Company, in the sum of TWO

THOUSAND FIVE HUNDRED AND NO/100

($2,500.00) DOLLARS, with interest

thereon as provided by law, until paid,

and for all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that any claims by Anthony and

Henrietta Prudhomme, or intervenors,

against Tenneco Oil Company are _ hereby

dismissed with prejudice.

JUDGMENT READ, RENDERED AND SIGNED

this 3rd day of May, 1991.

RICHARD J. PUTNAM, UNITED STATES SENIOR

DISTRICT JUDGE

XXV111

\

Anthony C. PRUDHOMME, et al.,

Plaintiffs-Appellees,

¥;

TENNECO OIL Css Defendant,

Booker Drilling Co., d/b/a Grace

Offshore Co., Defendant-

Appellant.

No. 91-4473

Summary Calendar.

United States Court of Appeals,

Fitth Circuit,

March 13, 1992,

Worker injured in slip-and-fall

accident while working on stationary

drilling platform brought action against

platform owner and drilling contractor.

United States District Court for the

Western District of Louisiana, Richard J.

Putnam, J oi exonerated drilling

contractor of negligence but found it

Strictly liable for plaintiff's injury on

ground that slip and fall was caused by

XxxX1xX

hydraulic fluid that leaked onto drilling

rig's deck from defective hose attached

to equipment belonging to’ contractor.

Platform owner was found innocent of both

negligence and strict liability.

Contractor appealed. The Court of

Appeals, Wiener, Circuit Judge, held that

district court abused its discretion

when, on morning of trial, it permitted

worker to seek recovery on basis of

Strict liability even though, some three

months before trial, district court

itself had ordered dismissal of worker's

motion to amend complaint to add cause of

action in strict liability, Since prior

dismissal misled contractor and induced

prejudicial inaction.

Vacated in part, affirmed in part,

and rendered.

XXX

Federal Civil Procedure, Section 881

District court abused its

discretion when, on morning of trial, it

permitted plaintiff to seek recovery on

basis of strict liability even though,

some three months before trial, district

court itself had ordered,’ dismissal of

plaintiff's motion to amend complaint to

add cause of action in strict liability,

Since prior dismissal misled defendant

and induced prejudicial inaction;

Gefendant showed that it would have

produced eyewitnesses for trial

testimony, attempted to locate physical

evidence, and retained expert witnesses

on aspects of strict liability not common

to issue of negligence if it ,had expected

to encounter strict liability at trial.

XXX]

Appeal from the United States

District Court For the Western District

of Louisiana.

Before JONES, DUHE' and WIENER,

Circuit Judges.

WIENER, Circuit Judge:

This appeal follows the bench trial

of a suit in federal district court

brought by Plaintiff-Appellee Anthony C.

Prudhomme, and his wife, Henrietta G.

Prudhomme, against Tenneco Oil Co.

(Tenneco) and Booker Drilling Co. d/b/a

Grace Offshore Co. (Booker), a drilling

contractor. Prudhomme sought damages

against Senven and Booker’ for _ back

injuries he allegedly incurred in a

slip-and-fall accident while working ona

XxxXxXi1i

Stationary drilling platform owned _ by

Tenneco, located on the outer continental

shelf in the Gulf of Mexico offshore

Louisiana. Henrietta Prudhomme sought

recovery against the same defendants for

loss of consortium. Applying Louisiana

law as mandated by the Outer Continental

Shelf Lands Aer, * the district court

exonerated Booker of negligence but found

it strictly liable for Prudhomme's back

injury on the ground that his slip and

fall was caused by hydraulic fluid that

leaked onto the drilling rig's deck from

a defective hose attached to equipment

:; 2

belonging to Booker. On appeal,

7

~ 43 U.S.C. Sec. 1333 (a) (2) (A)

. La.Civ.Code Ann.arts 2317 and

2322 (West 1979). The court found

co-defendant Tenneco innocent of both

negligence and strict liability.

X¥X¥X111

Booker argues that the district court

erred in allowing the case to be tried on

a theory of strict liability. And even

EH the strict liability theory was

appropriate, Booker argues, the district

court erred in finding that the

Prudhommes proved that Booker's eguipment

was defective, and that this defect

caused the accident. Agreeing with

Booker that the district court abused its

discretion in allowing the Prudhommes to

proceed to trial on a theory of strict

liability, we reverse that part of the

judgment and affirm the rest, thereby

pretermitting consideration of Booker's

Other assignments of error.

Es

FACTS AND PROCEEDINGS

XXX1V

On August hi, 1988, while

performing services on Tenneco's platform

for his employer, Western Atlas Offshore

Co., an intervenor in this case, Mr.

Prudhomme slipped and fell in hydraulic

fluid on the deck and injured his back.

In their original complaint, the

Prudhommes brought suit against Tenneco

for negligence and strict liability, and

against Booker for negligence only.

On October 26, 1990, after the

period for discovery had expired, Booker

moved for summary judgment. In

opposition to this motion, the Prudhommes

filed a memorandum stating that, among

other things, the source of the hydraulic

fluid was a ruptured hose on _ Booker's

equipment. Noting that the Prudhommes'

response seemed to raise issues of strict

liability not simply negligence, Booker

XXXV

pointed out in a supplemental memorandum

that the Prudhommes' had never alleged

Strict liability, and that new claims in

Strict liability could not defeat its

motion for summary judgment. The

district court rejected Booker's motion

for summary judgment.

On December thy 1991, shortly

before the scheduled date for trial, the

Prudhommes filed a motion with the

district court for permission to amend

their original complaint in order to add

a claim in strict liability against

Booker. It is important to note that

this motion was made after the

expiration of the discovery period,

-

after the pre-trial conference, after

submission of the Joint Pre-Trial

Stipulations, and after the case was

set for trial. In a memorandum

xXXVi

Supporting this amendment, the Prudhommes

acknowledged that, while they had always

asserted a claim in strict liability

against ‘Tenneco, their prior allegations

against Booker "did not mention

specifically Louisiana Civil Code

articles 2322 and abt or strict

liability."

Booker immediately opposed the

Prudhommes' motion to add a claim of

Strict liability, arguing that delay and

prejudice would result from the need to

re-open discovery, amend witness J and

exhibit lists, and prepare and file a new

pre-trial] Stipulation. Booker also

pointed out the potential difficu] ty of

locating essential witnesses, records,

and physical evidence. Booker noted that

the Prudhommes had long been aware of the

X¥XV1Iji

purported factua] basis for a cause of

action in strict liabi] ity, so amendment

could not be Justified on grounds of

newly discovered fact S.

Rathey than contend with BookKker's

Opposition at the risk of losing their

scheduled tria] date, on January LO,

199], the Prudhomme: fijed a motion

asking the district court to dismj

thei econad uy pie ernta | na imende

complaint, which i erte ty t

L2apii3% The ( a Fal ( rt ‘ ,

Orderline that ( plalnt } é

é Weel T ( T ¢ t é t t

r 4 “aa { : ,1)

i) the t ¢ ty f : ,

thy, P f ‘ ‘ ‘ '

“W ( ( f r é T ‘

any pleadings or filings by the

Prudhommes or by the court.

Nevertheless, at pre-trial conference on

the morning of trial, the district court

announced, sua sponte it appears, that

it would consider the Prudhommes' strict

liability claim against Booker. Booker

protested, but ‘the district court refused

to relent. (The record and the briefs to

this court do not. say precisely what

transpired during that pre-trial

conference, except that the court advised

Booker that while its objection would be

noted, trial would commence that morning

and would include consideration of

Booker's strict liability.)

Immediately upon commencement. of

the trial, Booker objected once again to

any consideration of a claim against it

XXX1xX

in strict liability, reiterating the

foregoing sequence of events and stating

that

{wie don't have an expert to prove

there wasn't a defect. We assumed

all along that this was a case

solely on negligence .... We are

prepared to try a case in

negligence. We are not

particularly prepared to try a case

in Serice Liability, ....”

The district court responded, "Your

exception is noted, and it's overruled."

During the two-day trial, the

Prudhommes adduced no evidence of a

defect in the hydraulic hose beyond the

bare fact that it developed a leak and

spilled hydraulic fluid on the area of

the metal deck where Mr. Prudhomme

slipped and fell. Booker adduced

testimony, on the other hand, that the

hose had been inspected frequently and

recently, was in good shape immediately

prior to the leakage, and was re-used as

soon as the broken segment was removed.

Based solely on the fact that the hose

broke, the district court found that the

hose was defective, and that this defect

caused the spilled fluid that, in turn,

caused mr. Prudhomme's’§ accident. The

district court found Booker strictly

liable but not negligent. The court also

assessed Mr. Prudhomme's fault at fifty

percent, for failure to look where he was

walking.

Las

ANALYSIS

A. STANDARD OF REVIEW

We review the district court's

decision to allow the trial to proceed,

xXXxX1

over Booker's objections, on the basis of

strict liability for abuse of

discretion. > That court's factual

findings that the rupture of the

hydraulic hose, in and of itself, proved

its defectiveness and that the fluid leak

caused the accident are reviewed for

clear error.” Conclusions of law by

the district court are subject to plenary

review.

B. PROCEEDING TO TRIAL ON STRICT

LIABILITY

The district court has broad

; Jon-T Chemicals, Inc. Vv.

Freeport Chem. Co., /04 F.2d 1412, 1417

(5th Cir. 1983).

4

Fed.R.Civ.P. 52(a). Halfert

v. Pulse Drug Co., Inc., 864 F.2d 1185,

1188 (5th Cir. 1989).

' Id.

XXXX1il

discretion in the management of its

docket and the trial of lawsuits pending

before it -- and appropriately so. In

particular, the trial court's broad

discretion in granting out~of-time

motions to file supplemental and amended

pleadings is so recognized as to require

no citation. In fact, the appellate

courts and the Federal Rules of Civil

Procedure encourage liberality in

granting such motions, as illustrated by

Fed.R.Civ.P. 15 (Rule 15) and the notes

of the Advisory Committee pertaining to

it. But the issue of granting tardy

motions to permit the filing of

amendments to pleadings is not the real

issue before us in this appeal. Rather,

we consider a= substantially different

matter: whether here the district court

abused its discretion when, on the very

XXXX11l1

morning of trial, it permitted the

claimant to seek recovery on the basis of

Strict liability even though, some three

months before the trial, the district

court itself had ordered the dismissal of

the Prudhommes' motion to amend their

complaint to add a cause of action in

Strict liability.

In their brief to this court, the

Prudhommes treat the instant issue as a

simple ee of the district court's

discretion concerning the facts and

theories reflected by pleadings and

related filings. But none of the cases

cited by the Prudhommes comprehends facts

even Closely approximating a situation in

which a party, in moving to amend, states

that a cause of action has not been

asserted but should be, and then, in

response to opposition, seeks and obtains

XXXXiV

a court order dismissing the very

pleading in which assertion of that cause

of action was sought. °

If the nature of this case were the

same as those cited by the Prudhommes, in

which the only issue is the district

court's discretion in finding references

in the complaint and other’ pleadings

sufficient to put the defendant on notice

for the purposes of Fed.R.Civ.P 8 (Rule

8), or the binding effect of pre-trial

Stipulations under Fed.R.Civ.P. 16 (Rule

16), the abuse of discretion standard

might well interdict our reversal of the

' "E.G, Syrie Vv. Knoll

International, 748 F.2d 304 (Sth Cir.

1984) ; In Re: Plywood Antitrust

Litigation, 655 F.2d 627 (Sth Cir.

1981); and Hodges v. U.S., 597 F.2d

1014 (5th Cir. 1979).

XXXXV

district court. Gossamer as is’ the

thread of a strict liability claim

against Booker in the fabric of ths case,

it might nevertheless have been

sufficient to fall within the broad ambit

7

of the district court's discretion.

But, as noted above, the procedural

5

Despite the contrary

allegation in their motion to file a

second Supplemental and amending

complaint, the Prudhommes assert in their

brief to this court that the Pre-Trial

Order "clearly sets forth the theories of

liability against both Booker and Tenneco

under’ strict liability and negligence

(see Pre-Trial Stipulation) ." We have

meticulously reviewed the Joint Pre-Trial

Stipulations filed July 23, 1990 (five

months before the filing of the

Prudhommes' motion to file second

Supplemental and amending petition, in

which they declared that the previous

pleadings were devoid of allegations of

Strict liability as to Booker), but we

failed to find that those Stipulations

"clearly" set forth the Prudhommes'

expectation of pursuing a cause of action

based on Booker's strict liability. In

Section 7, "contested issues of law," the

Prudhommes' stipulations cite only one

XXXXVi

history of this case -- the motion to

amend, opposition, motion to withdraw,

and district court's dismissal order --

lifts this case out of the realm of the

Ordinary and distinguishes it from those

cases relied upon by the Prudhommes.

issue contested by the Prudhommes, and

even that one is expressed in the form of

a cryptic and non-specific question:

"Are the defendants Subject to. strict

liability under Louisiana law or fare}

the defendants liable under general

negligence," That expression does not

even reflect to which of the defendants

the Prudhommes have assigned strict

liability, negligence, or both. Within

Section 7, Tenneco's contested issues of

law include negligence under La.Civ.Code

art 2315, and negligence under

La.Civ.Code arts 2317 or err em As to

Booker, however, all specific contested

issues of law refer to negligence only.

While it is possible that Section Te

Subsection f, could be read as implying

something other than negligence when it

refers to "{ajll those issues of law

implicit in the above Statements of

fact, * such a Stipulation does not

consitute adequate notice within the

contemplation of Rule 8.

XXXXVii

In that regard, we are puzzled at

the failure of both parties to discuss

(or even cite) our earlier Opinion in

8

Nance v. Gulf Oil Corp. , a case that

arose from very similar yet significantly

distinguishable facts. In Nance, the

plaintiff, who injured his back in a

slip-and-fall accident on a drilling

platform off the coast of Louisiana, for

the first time mentioned the potential

Strict liability of Gulf in proposed jury

Charges’ submitted just a week before

trial and over a year after filing his

Original complaint. Gulf convoked a

pre-trial conference five days before

Criai, but the district court waited

until moments’ before opening statements

817 F.2d 1176 (5th Cir. 1987).

X¥XXXViii

to advise the parties that Nance would be

permitted to amend his complaint to

include strict liability. Noting that

"eve-of trial amendments are ordinarily

9

disfavored," we nevertheless found no

abuse of discretion by the district court.

Although there are obvious

Similarities between Nance and the

instant case, Nance is noteworthy here

more for the differences between it and

this one, For example, we observed in

Nance that "{t]Jhe court, in addressing

Gulf's complaints, expressly evaluated

the new claims in terms of their impact

on Gulf's legal posture and its ability

to defend the case fairly."!° We also

9 Id. at 1180,

” Id. at 1179,

XXXX1ix

noted in Nance that,"{bJeyond asserting

that it was ‘hamstrung to meet the new

Claim,' Gulf has completely failed to

articulate the prejudice it faced as a

result of this event. "1! Not so in

this case; Booker explicitly articulated

its prejudice to the district court and

again in its brief to us. As Booker

shows, it would have produced

eyewitnesses for trial testimony,

attempted to locate physical evidence,

and retained expert witnesses on those

aspects of strict liability not common to

the issue of negligence if it had even a

reasonable basis to expect to encounter

Strict liability at trial.

Similarly, our admonition that

"Gulf has done nothing more than allege

in vague and conclusory terms that damage

it suffered by introduction of a claim

which presented no unforeseen

issues, "?2 does not apply in this

case. Booker supported its assertions of

prejudice with facts and logic. And,

even though one week before trial was

indeed paltry notice to Gulf, it was

light years ahead of no notice at all to

Booker. But most importantly, Gulf had

never been actively misled by the

Gistrict court, while here Booker was

misled by the court when it formally

ordered the dismissal of the Prudhommes'

proposed amendment that sought to add

Strict liability as an additional cause

of action against Booker. In sum, in

light of these significant points of

distinction, we find Nance too

distinguishable to control.

We are also mindful of a line of

Fifth Circuit jurisprudence in which the

advance notice requirement of

Fed.R.Civ.P. 56 (Rule 56) is construed

under circumstances Closely analogous to

those under Rule 15 here. The common

thread in the Rule 56 Jurisprudence is

the act of the district court in granting

a motion for summary judgment months or

even years after the non-moving party had

been served with the motion. The trial

court's grant of such motion usually came

at a time when the parties were not

expecting a summary judgment to be

rendered, Those cases involve such

lii

Similar fact patterns as a summary

judgment rendered prior to completion of

discovery, or during a continuance for

further discovery, or Simply when nothing

else has been going on -- and always when

no formal ten-days' notice had _ been

issued by the court to alert the

litigants that the court has under

advisement the issuance of a summary

Judgment. Some of our cases have found

an abuse of discretion and reversed the

; . 13 14

district court , Others have not.

13

See Capital Films Corp. v.

Charles Fried Productions, IDG os 628

F.2d 387, 391-92 (Sth Cir. 1980); Kibort

v. Hampton, 538 F.2d 90, 91 (5th Cir.

1976); and Enochs v. Sisson, 301 F.2d

125, 125 (5th Cir. 1962).

as See Landry vw. Air Line

Pilots Assn. Int'l, 901 F.od 404, 434-36

(Sth Cir. 1990); Daniels v. Morris, 746

F.2d 271, 274-76 (Sth Cir. 1981); and

Hamman iv, Southwestern Gas Pipeline,

ZOG. » 721 F.2d 140, 143-44 (Sth Cir.

1983).

1iii

Writing for this court in Daniels

Vv. Morris! Judge Rubin identified the

principal distinguishing feature between

those cases in which we reversed the

district court and those in which we did

not -- court-induced prejudicial

inaction. For example, the trial court

in Capital Films Corp. v. Charles Fried

Productions, cae, +8 had already

docketed the case for trial when, without

notice, it granted Summary judgment. At

one point that court had even stated that

it was not going to rule on the motion

for summary judgment. There we found

that the parties were "induced {by the

trial court } to believe the case was

‘9 746 F.2d at 274-76.

” 628 F.2d at 391,

liv

going to trial."?/ As Judge - Rubin

observed in Daniels, the other line of

cases, possibly best illustrated by

Hamman v., Southwestern Gas _ Pipeline,

Inc., 18 involve no indication that the

trial court had misled the parties or

lulled them into believing that the case

would be tried rather than be disposed of

by summary judgment. Commenting on the

distinction in the divergent lines of

cases, Judge Rubin wrote:

The district court here never

induced the parties to believe it

would not rule on the motion for

summary judgment. The summary

judgment issues in this case

remained at the forefront of the

litigation. The parties continued

to address it, albeit in fairly

721 F.2d at 143-44,

lv

leisurely fashion. When, as here,

the parties have been given ample

opportunity to respond to the

motion for summary judgment, the

district judge may rule on it even

after a significant delay, without

giving the parties advance notice

of the court's intention to

consider and deride the motion on a

"date certain."

Even though the case _ sub _judice

involves no rule of statutory notice akin

to Rule 56, the parallelism with the

summary judgment cases is obvious. The

question present in the instant case but

absent from those cited for support by

the Prudhommes is whether some action of

the district court misled the aggrieved

party or lulled it into inaction to its

prejudice. We conclude that here the

district court did so, albeit benignly

19 746 F.2a at 275-76.

lvi

and unintentionally, and thereby abused

its discretion.

Despite our hindsight ability, and

that of the district court, to discern

from the extensive pre-trial record in

this case an occasional tidbit that might

be stretched to imply the lurking

existence of a rudimentary claim in

strict liability against Booker, the

reading of that record as a whole eschews

such a conclusion. With the exception of

the self-correcting interlude in December

of 1990 and January of 1991, involving

the second supplemental and amending

petition, a view of the record as a

whole, from the filing of the original

complaint to the day of trial, reveals

plaintiffs who consistently assert two

causes of action -- negligence and strict

liability -- against Tenneco but only one

lvii

cause of action -- negligence -- against

300ker. That dichotomy is a brooding

omnipresence throughout the entire

procedural history of this case, It was

confirmed by the Prudhommes when

belatedly they recognized a need to add a

Strict liability cause of action against

Booker, If, instead of Capitulating, the

Prudhommes had successfully fought

Booker's opposition and persuaded the

district court in its discretion to allow

the late amendment and add the second

cause of action, we may well have

affirmed. But when the Prudhommes

elected instead to knuckle under, filing

a forma] motion - to withdraw that

complaint, they removed any lingering

doubt as to their intentions: They would

pursue Booker in negligence Only, just as

they had from the outset.

lviii

Even so, if the interlude had ended

at that point, our analogy to the summary

judgment cases mentioned might not

pertain. For it was only when the

district court stepped inon January 18th,

Signing and filing its order to dismiss

the complaint in which the Prudhommes for

the first time sought recovery against

Booker in strict liability, that the

analogy ripened to full fruition. The

same can be said for the distinction

between this case and Nance. That

overt act by the district court is the

linchpin of this case. st is

inextricably intertwined with the issue

of Booker's strict liability, requiring

us to determine whether the district

court misled Booker and induced

prejudicial inaction. We find that it

did.

lix

In the absence of any appropriate

action by the Prudhommes or the district

court, or both -- subsequent to the

court's order of dismissal but a

reasonable time before the trial --

sufficient to conjure up the specter of a

strict liability cause of action against

Booker, not even the most cautious of

defense counsel could reasonably have

been expected to be prepared to defend

against strict liability when this case

went to trial. Requiring counsel to do

so under the instant circumstances was

fundamentally unfair anda unreasonable,

the very stuff of which abuse of

discretion is made. |

That the manner in which Booker was

misled rose to the level of prejudice is

clear beyond peradventure. As counsel

for Booker urged the district court, both

lx

in chambers and in open court at the

outset of trial, the defense was lulled

into preparing to defend against Booker's

alleged negligence only. Understandably,

Booker made no efforts to conduct

discovery or otherwise obtain expert

testimony, eyewitness testimony, or

physical evidence relevant to the issue

of strict liability. The record and the

briefs are silent as to whether, in the

meeting in chambers immediately before

trial commenced, counsel for Booker moved

for a continuance, and no_ such motion

appears in the trial transcript. But

inasmuch as the district court had, sua

sponte, sprung strict liability on

counsel for Booker only moments’ before

the trial, such a motion would Clearly

have been a vain and useless gesture;

only the district court could cure

lxi

such prejudicial abuse of discretion by

postponing the trial, likewise sua

sponte, and that it did not do.

Therefore, we find that when, under

the circumstances of this case, the

district court granted the Prudhommes'

motion and ordered their strict liability

pleadings dismissed, it unquestionably

led Booker to believe that no such cause

of action would be encountered at the

trial. In so doing, the district court

induced Booker, to its prejudice, to

refrain from preparing to defend such a

cause of action. We also find that such

inducement was detrimentally relied upon

by Booker. 7”

” Booker makes the conclusory

statement, in its primary brief and again

in its reply brief, that the Prudhommes

"waived" their right to assert strict

liability against Booker when they moved

lxii

C. THE MERITS

At the bench trial, the district

court found that Tenneco was not

responsible to the Prudhommes in either

negligence or strict liability. The

for and obtained a court order dismissing

their motion for permission to file a

second supplemental and amending

complaint. Albeit unartfully, and

without citation to authority, Booker

appears to be suggesting that the

Louisiana concept of estoppel by record,

also known as judicial estoppel (as

distinguished from estoppel by judgment),

would preclude the Prudhommes from

prosecuting a cause of action in strict

liability against Booker. Broadly,

Louisiana recognizes three types of

estoppel: equitable estoppel, estoppel

by deed, and estoppel by record. See

Otto v. Cities Service Co., 415 F.Supp.

837 (W.D.La. 1976). Estoppel by record

may occur when a party files pleadings

that are detrimentally relied on by an

adverse party. See Humble Oil &

Refining Co. v. Boudoin, 154 So.2d 239

(La. App. 3d Cir. 1963). Had Booker

pursued and developed such a theory on

lxiii

Prudhorimes did not appeal that result.

The court also found that Booker was free

of any negligence whatsoever, and the

Prudhommes did not appeal that result

either. In holding’ Booker _ strictly

liable to the Prudhommes, the district

court made only two findings: that the

hydraulic hose connected to Booker's

equipment ruptured, causing hydraulic

fluid to drip onto the deck where

Prudhomme waS working and where he

stepped when he slipped and fell; and

that the presence of the hydraulic fluid

appeal, we might have been constrained

under the doctrine of Erie Railroad Co.

v. Tompkins, 304 U.S. 64, 58 S.Ct. 617,

82 L.Ed. 1188 (1938), to consider

Louisiana's estoppel by record at least

as an alternate basis for deciding this

case. See Stevens v. New Orleans &

Northeastern Railroad Co., 341 F.Supp.

497 (E.D.La. 1972).

lxiv

on the metal deck was a fifty percent

contributing cause of the accident.

Having found that the district court

abused its discretion in permitting the

trial to comprehend the issue of Booker's

strict liability, we need not and

therefore do not address the propriety of

that court's ruling on the merits.

Baas

CONCLUSION

Coupled with the Prudhommes' lack

of success in all claims against Tenneco

and the failure of the Prudhommes'

negligence claims against Booker, our

reversal of the district court's judgment

against Booker on the grounds of strict

liability means that the Prudhommes take

nothing. For the reasons set forth above

we VACATE the judgment of the district

court to the extent it held Booker liable

Lxv

to the Prudhommes in strict liability,

but we AFFIRM that judgment in all other

respects; and we RENDER judgment in favor

of Booker -and against the Prudhommes,

dismissing their lawsuit with prejudice.

VACATED in part, AFFIRMED in part,

AND RENDERED,

lxvi

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 91-4473

ANTHONY C. PRUDHOMME, ET AL.,

Plaintiffs-Appellees,

versus

TENNECO OIL CO., Defendant,

BOOKER DRILLING CO., d/b/a Grace

Offshore, Co., Defendant-Appellant.

Appeal from the United States District

Court fof the Western District of

Louisiana

ON PETITION FOR REHEARING

(April 13, 1992)

Before JONES, DUHE and WIENER, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that ‘et wnkitien for

rehearing filed in the above entitled and

numbered cause be and the same is hereby

DENIED,

lxvii

IT IS FURTHER ORDERED that the

| alternative motion for remand is DENIED.

ENTERED FOR THE COURT:

t Jacques L. Wiener, Jr., United States

Circuit Judge

> OL,

lxviii