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Hamilton v. Targa Transport LLC

United States District Court, S.D. Texas, Houston Division

April 30, 2018

CHARLES HAMILTON, Plaintiff,
v.
TARGA TRANSPORT LLC, TARA RESOURCES LLCA, and TPC GROUP INC., Defendants.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE

         Currently 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. # 45].[1] 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 granted.

         I. BACKGROUND

         Unless otherwise indicated, the following facts are not in genuine dispute for purposes of Targa's Motions.

         Defendant 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 LLC.[2] On January 23 and 24, 2015, the CHEROKEE was docked at a facility owned and operated by Defendant TPC Group Inc. (“TPC”)[3] near Houston, Texas.

         Plaintiff 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 non-party SGS.

         On 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 inspection.

         At 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.

         After 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.

         II. SUMMARY JUDGMENT STANDARD

         Rule 56 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 Cir. 2008).

         For 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.

         In 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)).

         The 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).

         Affidavits 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. 2000).

         Finally, 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).

         III. ANALYSIS

         Plaintiff 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”).[4] “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.

         A. Turnover Duty

         The 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. Id.[5]

         In his 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.

         1. Frost on the ...


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