United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
pending before the Court in this vessel negligence case is
Defendants Targa Transport LLC and Targa Resources LLC's
(collectively, “Targa”) Motion for Summary
Judgment on all of Plaintiff's Claims (the “SJ
Motion”) [Doc. # 41]. Plaintiff Charles Hamilton filed
a timely response, to which Defendant replied. See
Plaintiff's Opposition to Targa's Motion for Summary
Judgment (the “Response”) [Doc. # 43');">43] and
Targa's Reply to Plaintiff's Opposition to the SJ
Motion (the “Reply”) [Doc. # 44]. Also pending
before the Court is Targa's Motion to Exclude the
Opinions of Henry Woods, Plaintiff's Purported Marine
Expert (the “Exclusion Motion, ” and, together
with the SJ Motion, the “Motions”) [Doc. #
The Motions are now ripe for decision. Having considered the
parties' briefing, the applicable legal authorities, and
all appropriate matters of record, the Court concludes that
both the SJ Motion and the Exclusion Motion should be
otherwise indicated, the following facts are not in genuine
dispute for purposes of Targa's Motions.
Targa Transport LLC is the owner of the barge CHEROKEE.
Subsequent references in this Memorandum and Order to
“Targa” refer only to Defendant Targa Transport
On January 23 and 24, 2015, the CHEROKEE was docked at a
facility owned and operated by Defendant TPC Group Inc.
(“TPC”) near Houston, Texas.
is a tankerman with responsibility for loading and unloading
cargo onto barges such as the CHEROKEE. Prior to January
2015, Plaintiff had been working as a tankerman for 15 years.
During his tenure as a tankerman, Plaintiff had experience
loading and unloading various types of cargo, including oils,
chemicals and water. Plaintiff also had experience working as
a tankerman in different climates and in different
geographies, including cold weather ports and the Gulf of
Mexico. In January 2015, Plaintiff was an employee of
January 23, 2015, Plaintiff arrived at the CHEROKEE between
8:00 and 9:00 p.m. to begin his tankerman duties. When
Plaintiff arrived, he relieved another tankerman, who had
supervised the loading of approximately half of the cargo
that the CHEROKEE was scheduled to take on. Plaintiff began
his job by conducting a walk-around inspection of the barge.
He has no recollection of seeing frost on the deck of the
barge or writing down any hazardous conditions during his
approximately 2:00 a.m. on January 24, 2015, Plaintiff
slipped and fell on the deck of the CHEROKEE after climbing
down stairs he had accessed for the purpose of checking the
barge's cargo level. Prior to his accident, Plaintiff had
gone up and down those same stairs at least three separate
times without incident. According to Plaintiff, the
temperature, which had decreased gradually from the time he
arrived at work, was in the “low 30s” at the time
of his accident.
his fall, Plaintiff stood up and looked down at the deck with
his SGS-issued flashlight. Plaintiff contends he saw frost on
the deck, but did not see any non-skid coating or material on
the deck's surface.
SUMMARY JUDGMENT STANDARD
of the Federal Rules of Civil Procedure mandates the entry of
summary judgment against a party who fails to make a
sufficient showing of the existence of an element essential
to the party's case, and on which that party will bear
the burden at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton
Rouge Oil and Chem. Workers Union v. ExxonMobil Corp.,
289 F.3d 373, 375 (5th Cir. 2002). Summary judgment
“should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 322-23;
Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th
summary judgment, the initial burden falls on the movant to
identify areas essential to the non-movant's claim in
which there is an “absence of a genuine issue of
material fact.” Lincoln Gen. Ins. Co. v.
Reyna, 401 F.3d 347, 349 (5th Cir. 2005). The moving
party, however, need not negate the elements of the
non-movant's case. See Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving party
may meet its burden by pointing out “‘the absence
of evidence supporting the nonmoving party's
case.'” Duffy v. Leading Edge Prods.,
Inc., 44 F.3d 308, 312 (5th Cir. 1995) (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913
(5th Cir. 1992)). If the moving party meets its initial
burden, the non-movant must go beyond the pleadings and
designate specific facts showing that there is a genuine
issue of material fact for trial.
deciding whether a genuine and material fact issue has been
created, the court reviews the facts and inferences to be
drawn from them in the light most favorable to the nonmoving
party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A
genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th
Cir. 2009) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). The non-movant's burden is not
met by mere reliance on the allegations or denials in the
non-movant's pleadings. See Diamond Offshore Co. v.
A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir.
2002), overruled in part on other grounds by Grand Isle
Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th
Cir. 2009). Likewise, “conclusory allegations” or
“unsubstantiated assertions” do not meet the
non-movant's burden. Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008). Instead, the nonmoving party must present
specific facts that show “the existence of a genuine
issue concerning every essential component of its
case.” Am. Eagle Airlines, Inc. v. Air Line Pilots
Ass'n, Int'l, 43');">43 F.3d 401');">343');">43 F.3d 401, 405 (5th Cir. 2003)
(citation and internal quotation marks omitted). In the
absence of any proof, the court will not assume that the
non-movant could or would prove the necessary facts.
Little, 37 F.3d at 1075 (citing Lujan v.
Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
Court may make no credibility determinations or weigh any
evidence. See Chaney v. Dreyfus Serv. Corp., 595
F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage
Co., 336 F.3d at 412-413). The Court is not required to
accept the nonmovant's conclusory allegations,
speculation, and unsubstantiated assertions which are either
entirely unsupported, or supported by a mere scintilla of
evidence. Id. (citing Reaves Brokerage, 336
F.3d at 413).
cannot preclude summary judgment unless they contain
competent and otherwise admissible evidence. See
Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated”); Love v.
Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir.
2000); Hunter-Reed v. City of Houston, 244 F.Supp.2d
733, 745 (S.D. Tex. 2003). A party's self-serving and
unsupported statement in an affidavit will not defeat summary
judgment where the evidence in the record is to the contrary.
See In re Hinsely, 201 F.3d 638, 643');">43 (5th Cir.
although the Court may consider all materials in the record
when deciding a summary judgment motion, “the court
need consider only the cited materials.” Fed.R.Civ.P.
56(c)(3). “When evidence exists in the summary judgment
record but the nonmovant fails even to refer to it in the
response to the motion for summary judgment, that evidence is
not properly before the district court. Rule 56 does not
impose upon the district court a duty to sift through the
record in search of evidence to support a party's
opposition to summary judgment.” Malacara v.
Garber, 353 F.3d 393, 405 (5th Cir. 2003) (internal
citations and quotation marks omitted).
asserts a single cause of action against Targa in his
complaint: vessel negligence pursuant to Section 905(b) of
the Longshore and Harbor Workers Compensation Act
(“LHWCA”). “It is now well accepted that
shipowners owe three narrow duties to longshoremen: (1) a
turnover duty, (2) a duty to exercise reasonable care in the
areas of the ship under the active control of the vessel, and
(3) a duty to intervene.” Kirksey v. Tonghai
Mar., 535 F.3d 388, 391 (5th Cir. 2008) (citing
Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92,
98 (1994)). These three duties, which trace their origins to
the seminal case of Scindia Steam Nav. Co. v. De Los
Santos, 451 U.S. 156 (1981), collectively are known as
the Scindia duties. The Court addresses the merits
of Plaintiff's claims with respect to each duty in turn.
first Scindia duty, the turnover duty, applies to
the shipowner's obligation before or at the commencement
of the stevedore's activities. Kirksey v. Tonghai
Mar., 535 F.3d 388, 392 (5th Cir. 2008). It consists of
two distinct, but related obligations. First, the owner owes
a duty to exercise ordinary care under the circumstances to
turn over the ship and its equipment in such condition that
an expert and experienced stevedore can carry on stevedoring
operations with reasonable safety. Id. Second, the
owner owes a duty to warn the stevedore of latent or hidden
dangers that are known to the vessel owner or should have
been known to it. The duty to warn of hidden dangers,
however, is a narrow one. It does not include dangers which
are either: (1) open and obvious or (2) dangers a reasonably
competent stevedore should anticipate encountering.
deposition and pleadings, Plaintiff identifies three
potential sources of a turnover duty breach by Targa: the
presence of frost on the deck where Plaintiff fell,
insufficient lighting on the CHEROKEE, and the absence of
non-skid material in the area where Plaintiff suffered his
accident. The Court considers these assertions seriatim.
Frost on the ...