Opinion
No. 98-3326, SECTION "K"(5).
December 6, 2000.
ORDER AND REASONS
Before the Court are motions for summary judgment filed by General Electric ("GE") (rec. doc. 619) and Gottlieb, Barnett Bridges ("GBB") (rec. doc. 616). General Electric's motion was taken on the papers and GBB's motion was brought for oral argument on December 1, 2000. The Court has reviewed the pleadings, memoranda and relevant law, and denies both motions for the reasons that follow.
A. Standard for Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. "Stults v. Conoco, 76 F.3d 651, 656, (5th Cir. 1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). The court notes that the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v.. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To grant the motion, the Court must find that the "evidence favoring the nonmoving party is insufficient to enable a reasonable juror to return a verdict in her favor." Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167 (5th Cir. 1990). With this standard in mind, we turn to the respective motions.
B. Liability Motions
I. General Electric's Motion For Summary Judgment
General Electric's role in the catastrophic crane crash of June 1998 at the ICRMT Convent, Louisiana site was that of the electrical subcontractor to Connex-Metalna, the manufacturer of the crane that eventually toppled into the Mississippi River. More specifically, General Electric was to supply certain electrical components for the crane itself. GE argues that it did not breach any duty and that in any event, it was not the proximate cause of the crane tumbling into the river. It contends that the gross instability of the crane as manufactured caused the accident, and to the extent that any electrical systems were not functioning, that those systems were irrelevant to the safety of the load test.
According to OSHA section 1919.71(c), the overload test should have been based on the manufacturer's load ratings for conditions of use. As such, Connex-Metalna's chief designer testified that the specifications for the overload test provided that the trolley should have been taken to the penultimate stop on the boom (the end switch) rather than the ultimate position (the emergency stop) as actually occurred. Novak deposition, pp. 165-166. Additionally, Mr. Novak testified that GE also may have participated in creating the test procedures. Novak deposition, p. 135. To the extent GE maintains that it was not involved in testing protocols, and in any event claims that the trolley traversed the correct distance, there is an issue that requires a jury decision.
Other issues in connection with the trolley mechanism remain. Among them are whether the trolley positioning and monitoring system and the anti-sway feature were functional, even if not in use, during the overload test. Witnesses testified that the trolley stopped and started a few times as the test was being conducted and also traveled past the end stop as designated by Connex-Metalna and all the way to the end of the boom (several inches beyond its stability calculation) where it came to a stop, causing the test weights to undulate. Such actions indicate that the electrical systems may not have been functioning properly during testing.
Illustrative of the fact issues that arise in connection with GE's alleged negligence in connection with its participation in the overload test are whether the positioning system was operational, whether Connex-Metalna knew all systems were not functioning or instructed that they be cut off during overload testing, the extent of GE's involvement in planning the overload test and the effect, if any, of the final stop and the weight movement on the toppling. Therefore, GE's motion must be denied.
II. GBB Motion For Summary Judgment
The Construction and Erection Agreement ("crane contract") entered into between ICRMT and Connex-Metalna designated GBB as ICRMT's "Representative and Engineer... with authority to approve workmanship and materials." (crane contract, Article IV). Under the same contract Connex-Metalna was to "submit for review by GBB copies of all design drawings, calculations, catalog information and shop detail drawings used by the Contractor to design, manufacture and erect the Ship Loader and Ship Unloader.., to verify' compliance of the design concept and specifications" (crane contract section F.20.1). GBB was also to coordinate, review and comment on complete shipping and erection plans for the Ship Unloader, including drawings showing the weight and testing operations. (crane contract section F.20.1). GBB claims that its duties vis a vis ICRMT were confected through an oral agreement with ICRMT, the precise contours of which have been forgotten by GBB's president. ICRMT does not dispute the existence of an oral agreement but claims that the crane contract continued to define GBB's role as ICRMT representative and engineer. Thus, even with respect to whether the written or oral contract governs the conduct of GBB and ICRMT, there are genuine disputes.
Louisiana law requires that "the duty owed by those practicing learned professions to their clients, patients, or retainers, is that of exercising that degree of professional care and skill customarily employed by others of the same profession. . ." Gannt v. Boon, Wellford, Clark, Lanaschmidt and Pemberton, 559 F. Supp. 1219, 1227 (M.D. La. 1983); See e.g., Pittman Construction v. City of New Orleans, 178 So.2d 312 (La.App. 4 Cir. 1965). As a general rule, "in a negligence action, the jury must decide whether defendant's conduct conformed to the standard of a reasonable demand under like circumstances." Meany v. Meany, 639 So.2d 229, 234 (La. 1994). In terms of third party liability, "a supervising engineer who has knowledge of the possibility of injury to third parties resulting from his failure to act in an area related to the course of his particular employment, does owe a duty to such third party to take such action as he reasonably can or should to prevent harm to the third party." Cook Nichol v. Plimsoll Club, 451 F.2d 505, 510 FN 16 (5th Cir. 1971).
Thus, GBB's argument boils down to the scope of its duties under the crane contract and its subsequent oral agreement with ICRMT. GBB argues that it was merely a supervising engineer, with no duties to design or closely monitor the crane construction or overload test. Nevertheless, there again are illustrative issues that preclude granting GBB's motion.
To start, even with respect to the limited duty as delineated in the crane contract, GBB had a responsibility to review stability calculations. Respondents produced evidence showing that, in carrying out its review of the stability calculations, GBB reviewed the wrong crane. The calculations provided to GBB, in reality were for a similar crane located at the Alabama State Docks, which was three feet higher than the ICRMT crane, and in addition, did not have several features on the counterbalance side that may have, to a limited degree, stabilized the crane. Even under GBB's limited view of its duties, this fact, and whether or not it was a proximate cause of the toppling, are issues for the jury. Likewise, it cannot be denied that the duty to review stability calculations in this case exists as to third parties. Presumably the goal of a stability test is to ensure the crane is not out of balance. Although not a common occurrence, it is foreseeable that an out of balance crane feasiblely could topple, causing injury to anyone or anything in the vicinity of the crane. Thus, with respect to GBB's alleged negligence in its role as consulting engineer to oversee the design and as to liability construction of the unloader, there exists issues of material fact.
There is also an issue of fact as to GBB's assertions that it had no responsibility to oversee the load testing. Respondents have provided factual issues that preclude the entry of summary judgment on this issue as well. For example, section F.20.1 of the crane contract imposes upon GBB a duty to approve the testing procedures for the unloader, such a duty comports with the ICRMT operation superintendent's belief that GBB was actively involved in the load testing. See deposition of Horace Davis, p. 86. Moreover, GBB engineer James LaRose reviewed and commented upon the testing procedures. Such facts indicate a more active involvement than that claimed by GBB.
As to the testing procedures employed when the crane crashed, there are numerous issues of material fact, including but not limited to, the location of testing, the use of additional stability testing to determine the cranes actual center of gravity and the commencement of testing when all systems may not have been functional. More importantly, the issue of whether or not any of the factual issues relating to review and testing was the legal cause of the crash is an is an issue for the jury to decide.
Finally, as to GBB's contention that ICRMT waived any rights against it through Bruce Conti's deposition testimony, ICRMT's argument that the admission related merely to ICRMT's primary position in this litigation, not its alternative theory, is sufficient to prevent judgment as a matter of law at this point.
Accordingly,
IT IS ORDERED that General Electric's and GBB's Motions for Summary Judgment on liability are DENIED.