Fifth Circuit Affirms Summary Judgment for Vessel Owner under 905(b); Insufficient Evidence to Support Alleged Existence of Hazard

Fifth Circuit Affirms Summary Judgment for Vessel Owner under 905(b); Insufficient Evidence to Support Alleged Existence of Hazard

By: Marie Olga Louis

 Kitchens v. Stolt Tankers B.V., No. 16-20091, 2016 WL 4120678; 2016 U.S. App. LEXIS 1401, (5th Cir. Aug. 2, 2016).Plaintiff-Appellant, Larry Kitchens, contended the district court erred in dismissing his negligence claim under the Longshore Harbor Workers Compensation Act (“LHWCA”) against Stotl Tankers, B.S. and Stolt Focus, B.V., owners of the vessel M/V STOLT FOCUS (collectively “Stolt”). The Fifth Circuit reviewed the district court’s Summary Judgment in favor of Stolt de novo, and ultimately found the trial judge had not erred in finding that Stolt did not breach its “active control” and “turnover” duties. The Fifth Circuit held that Kitchens claim could not survive Stolt’s motion for Summary Judgement because his allegations constituted mere speculations.On the night of the accident, Larry Kitchens was working as an Operations Supervisor for Westway Terminal, where the Stolt was unloading a liquid referred to as “fatty acid” or “veg oil.”  Around 1:00 am Kitchens and two other crewmembers boarded the vessel because Kitchens believed the “veg oil” was being unloaded slower than usual and wanted to address the situation. Kitchens lead the way up to the Vessel’s Cargo Control Room (CCR) by crossing the main deck and taking the stairs up to the CCR. The three crewmembers reached the CCR without incident. However, on their way back Kitchens slipped after descending the stairs. The substantial injuries from the fall gave rise to his negligence claim against Stolt for a breach of its “active control” duty.If Stolt were in fact negligent, it is undisputed that the LHWCA would allow Kitchens (a covered maritime worker) to recover damages for personal injuries suffered as a result of the negligence of the vessel because it was wholly operated by Stolt at the time of the accident. (33 U.S.C. § 905(b)). In Scindia Steam Navigation Co. v. De Los Santos, the Supreme Court established the scope of the vessel’s duty, and placed the longshoremen’s safety under the stevedore’s primary care. However, the Fifth Circuit further narrowed the scope of the vessel’s responsibility in Kirksey v. Tonghai Maritime, 535 F.3d 388, 391 (5th Cir. 2008), limiting its duties to: (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.” Additionally, the “active control duty” requires that the vessel exercise due care in preventing longshoremen from coming into contact with hazards during the stevedoring operations, even when those hazards are not “open and obvious.” Thus, to survive the motion for summary judgement Kitchens had to prove there was a “hazard” on the vessel’s walkway, that ultimately lead to the injuries.The court found that Kitchens failed to produce sufficient evidence to show there was a “hazard” on the walkway, under the control of the vessel. To survive a motion for summary judgment, the non-moving party must establish a genuine issue of material fact, and in doing so “unsubstantiated assertions, improbable inferences, and unsupported speculations” will not suffice in defeating the motion. Additionally, under Rule 56 of the Federal Rules of Civil Procedure, all reasonable inferences are drawn in favor of the non-moving party.  Thus, even drawing all inferences presented by Kitchens in his favor, the court found the following allegations too speculative to defeat the motion, that Kitchens slipped because of: (1) “veg oil” or some other substance on the walkway; (2) water on the walkway that was unrelated to rain or dew; (3) Stolt’s failure to place nonskid on the walkway; (4) the dangerousness of the walkway due to lack of lighting; or (5) a combination of the aforementioned possibilities, in the alternative.The court reasoned Kitchen’s was unable to prove the presence of a “hazard” because he could not produce any eye witness to testify to the presence of a foreign substance on the walkway, before or after the accident, and there was no evidence that the Stolt’s cargo had leaked. Kitchens himself was not able to obtain evidence of a foreign substance after the fall, and he conceded it had not rained the night of the accident. Moreover, neither a lack of a non-skid surface, nor inadequate lighting, without an agreement between the parties to provide as much, amounts to evidence of a “hazard.” Lastly, the testimony of an eye witness claiming to have observed “natural occurring moisture” on the deck was insufficient to defeat the motion for summary judgement when weighed against all the facts.