Opinion
Civil Action No. 97-3713 Section: "R" (3).
September 22, 2000.
ORDER AND REASONS
Before the Court is defendant Benjamin Roy Bickel's motion for summary judgment to dismiss plaintiffs' claims and Branam Enterprises, Inc.'s cross-claims against him pursuant to Federal Rule of Civil Procedure 56. For the following reasons, defendants's motion is granted in part.
I. Background
This case arises out of an accident in which Lora Osgood died while rehearsing a bungee jump to be performed during the halftime show at Superbowl XXXI in the Louisiana Superdome. The National Football League contracted the task of staging the halftime show to Select Productions, Inc. Select, in turn, contracted with various individuals and entities to provide specific services. In one of those contracts, Select entered into an agreement with Production Support Services, under which Select hired Bickel. Under this contract, Bickel was "[r]esponsible for specific show rigging planning, material sourcing and managing the rigging plan, including the associated rigging / equipment vendors required to support the Halftime Show." (Opp'n Mot. Summ. J., Ex. C at 6.) Although Bickel's initial responsibilities were confined to the rigging necessary to hang lights and speakers, his role evolved and expanded with the plans for the halftime show. Among his additional responsibilities was rigging a bungee jump from the sound and light trusses. Because the rigging for the bungee jump, among other things, required additional work, Select increased Bickel's fee from $15,000 to $17,000.
To orchestrate the bungee jump, Select hired Branam. Branam provided the people, equipment, and expertise to mount a bungee jump routine. Using Branam's equipment and in consultation with Branam, Bickel built a prototype bungee system, which Branam's personnel copied, in principle, for the actual installation. That system included the location of the jumps, the positions of the line handlers in the catwalk, the configuration of the rope at the line handler's position, and the method of lowering the jumpers.
Bickel argues that Branam, alone, is responsible for the fatally flawed technical design and execution of the bungee jump.
Branam supplied the bungee rigging and bungee performers; Branam designed the technical aspects of the bungee jump; Branam tested the equipment and was responsible for training the line handlers and performers. And finally, Branam failed to consider, or failed to take action on par with its evaluation of, the hazards at hand.
(Mem. Supp. Mot. Summ. J. at 7.) Accordingly, Bickel concludes that only Branam is liable for plaintiffs' claims.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). Accordingly, a court must be satisfied that no reasonable trier of fact could find for the nonmoving party. In other words, "if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden." Beck v. Texas State Bd. of Dental Exam'rs, 204 F.3d 629, 633 (5th Cir. 2000)
Initially, the moving party bears the burden of establishing that there are no genuine issues of material fact. If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. See Id. at 322, 106 S.Ct. at 2552. The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999).
B. Plaintiffs' Claims
Bickel moves to dismiss plaintiffs' claims against him, arguing only Branam should be held liable. Citing no law to support his proposition, Bickel paints a picture of events in which he has no responsibility for planning or executing the fatal bungee jump. Although Bickel does not assert that he did not owe Lora Osgood a legal duty, the Court so interprets his motion under the duty-risk analysis articulated in Fawler v. Roberts, 556 So.2d 1 (La. 1989), reh'g granted on other grounds and original opinion reinstated as supplemented, 556 So.2d at 13 (La. 1990) (delineating five analytical elements, the first of which queries whether defendant had a duty to conform his conduct to a specific standard)
Plaintiffs counter by arguing that Bickel's contractual duties as show rigging coordinator included managing the rigging plan for Branam. They also describe certain actions that Bickel took consistent with that contract language. For example, Bickel erected the prototype bungee system that Branam adopted in principle when it constructed the actual installation. As the Court has explained, that system included the location of the jumps, the positions of the line handlers in the catwalk, the configuration of the rope at the line handler's position, and the method of lowering the jumpers.
The Court agrees with plaintiffs that as the show rigging coordinator Bickel owed Lora Osgood a duty to exercise reasonable care to design and implement a bungee system that minimized the risk of injury or death. His contract language is broad and explicit. He was "[r]esponsible for specific show rigging planning, materials sourcing and managing the rigging plan, including the associated rigging/equipment vendors required to support the halftime show." (Opp'n Mot. Summ. J., Ex. C at 6.) Branam was one of the vendors. Therefore, despite Bickel's protests to the contrary, his duties included managing Branam's rigging plan. Whether he breached that duty and whether that breach caused plaintiffs' injuries are issues for the jury. Accordingly, the Court denies Bickel's motion for summary judgment to dismiss plaintiffs' claims against him.
C. Branam's Cross-Claim
Bickel further moves to dismiss Branam's cross-claims against him for indemnity or contribution. The Court finds that Bickel's motion is covered by the reasoning in the Court's Order filed May 12, 2000, wherein the Court explained that Louisiana Civil Code "articles 2323 and 2324 have effectively eliminated contribution and indemnity except in those tort cases in which the act of causing the injury are willful and intentional." (Order at 6.) As there are no allegations of willful and intentional acts or that Branam may be held strictly liable, the Court adopts the reasoning of its May 12, 2000 Order and grants Bickel's motion for summary judgment on Branam's cross-claim against him for indemnity or contribution.
III. Conclusion
For the foregoing reasons, defendant's motion for summary judgment is granted in part.