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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 826

## Text

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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

is Ouestions Presented for Review

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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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0806%3A1. Public record. Not legal advice.