Granger v. Bisso Marine, Llc et al

MOTION for Summary Judgment on the Negligence Claims of Plaintiff

E.D. La.August 1, 2016

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA STEVE GRANGER, IV VERSUS BISSO MARINE, LLC and BOLLINGER SHIPYARDS, LLC CIVIL ACTION NO: 2:15–cv-00477 SECTION: “L” (3) JUDGE ELDON E. FALLON MAGISTRATE DANIEL E. KNOWLES, III BOLLINGER SHIPYARDS, LLC’S MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE CLAIMS OF PLAINTIFF NOW INTO COURT, through undersigned counsel, comes defendant, Bollinger Shipyards, LLC (“Bollinger”), which hereby moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the negligence claims of plaintiff, Steve Granger, IV, against it. For the purposes of this Motion, Bollinger stipulates that plaintiff’s testimony and that of all lay witnesses is true and correct. SUMMARY JUDGMENT STANDARD A motion for summary judgment shall be granted if the pleadings, depositions, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994)(en banc). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying those portions of the record which it believes demonstrates the absence of a genuine issue of material fact. See Stults v. Conoco, 76 F.3d 651 (5th Cir. 1996); 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 there is some Case 2:15-cv-00477-EEF-DEK Document 63 Filed 08/01/16 Page 1 of 3 2 metaphysical doubt as to the material facts. See Scott v. Harris, 550 U.S. 372, 380 (2007); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The non-moving party must come forward with “specific facts showing 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/RISAN, 45 F.3d 951, 954 (5th Cir. 1995); Bennett v. Doe, 2012 WL 4322668 (E.D. La. 2012). The non-moving party must carry this burden as to each essential element on which it bears the burden of proof. See Matias v. Taylors Int’l Services, 2010 WL 3984581 (E.D. La. 2010); Schaefer v. Gulf Regional Blood Center, 10 F.3d 327, 330 (5th Cir. 1990). A scintilla of evidence, conclusory allegations, speculation and unsubstantiated assertions will not carry this burden. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Hence, where the record taken as a whole cannot lead a rational trier-of-fact to find for the non-moving party, there is no “genuine issue for trial” and summary judgment should be granted. See Matsushita Elec. Industrial Co., 475 U.S. 574 (1986). SUMMARY OF ARGUMENT Bollinger stipulates for the purposes of this Motion that plaintiff’s testimony and that all lay witnesses is true and correct. Bollinger submits that the real issue before the Court is whether, as a matter of law, Bollinger owed plaintiff a duty. As stated in Martin v. Watson’s Grocery, 615 So.2d 999, 1001 (La. App. 1st Cir. 1993): “Whether an alleged tortfeasor owes a duty to protect others from a particular risk of harm is a legal question to be determined by the trial court.” Bollinger submits that when the law of duty/risk is applied to these facts, the Court will find that Bollinger owed plaintiff no duty to warn him of the object on which he tripped Case 2:15-cv-00477-EEF-DEK Document 63 Filed 08/01/16 Page 2 of 3 3 while he was walking on Bisso’s vessel. Owing plaintiff no such duty, Bollinger cannot have been negligent. As is more fully explained in the supporting Memorandum, as a matter of law, Bollinger Shipyards, LLC should be dismissed from this case. Respectfully submitted; /s/ Wilton E. Bland, III Wilton E. Bland, III (#3123) Juan C. Obregon (#35273) MOULEDOUX, BLAND, LEGRAND & BRACKETT 701 Poydras Street, Suite 4250 New Orleans, Louisiana 70139 Telephone: 504-595-3000 Facsimile: 504-522-2121 Email: wbland@mblb.com jobregon@mblb.com Attorneys for Bollinger Shipyards, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 1, 2016 I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all parties. I further certify that there are no non-CM/ECF participants. /s/Wilton E. Bland, III Case 2:15-cv-00477-EEF-DEK Document 63 Filed 08/01/16 Page 3 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA STEVE GRANGER, IV VERSUS BISSO MARINE, LLC and BOLLINGER SHIPYARDS, LLC CIVIL ACTION NO: 2:15–cv-00477 SECTION: “L” (3) JUDGE ELDON E. FALLON MAGISTRATE DANIEL E. KNOWLES, III MEMORANDUM IN SUPPORT OF MOTION OF SUMMARY JUDGMENT ON BEHALF OF BOLLINGER SHIPYARDS, LLC MAY IT PLEASE THE COURT: Before the Court is Bollinger Shipyards, LLC’s (hereafter, “Bollinger”) Motion for Summary Judgment in which it again seeks its dismissal from this litigation. The issue before the Court is whether Bollinger owed a duty to plaintiff, to warn or protect him from the alleged defect on Bisso’s vessel he claims caused his injury, and if Bollinger breached that duty. It is Bollinger’s position that under the facts of this case it did not owe this duty to plaintiff, and that any duty it may have had, it did not breach. Bollinger Shipyards, LLC previously filed its Motion for Summary Judgment on January 20, 2016. (R. Doc. 36). Oral arguments were heard on February 17, 2016. The Court, after considering the arguments of counsel, denied Bollinger’s Motion. (R. Doc. 54). At the close of arguments Your Honor observed that you may take this matter under further consideration when discovery is complete. Discovery is complete. Thus Bollinger moves again moves the Court for its dismissal. In support of its Motion, Bollinger incorporates by reference its prior Motion for Summary Judgment (R. Docs. 36, 1-8) in their entirety. Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 1 of 14 2 THE LAW Bollinger brings to the Court’s attention the following principles of law that are relevant to our discussion. These cases set forth the law in Louisiana on duty-risk analysis and negligence, and define the duties owed by the players: Bisso, which owned the vessel; Power Dynamics, LLC, which employed plaintiff and was an independent contractor working on Bisso’s vessel; and Bollinger, a co-independent contractor working on Bisso’s vessel. (Because it enjoys tort immunity as plaintiff’s employer, Power Dynamics, is not a party defendant in the lawsuit.) The event in question occurred aboard Bisso’s vessel as it was moored at Bollinger’s shipyard in Amelia, Louisiana. Plaintiff has brought his claims against Bollinger pursuant to the laws of Louisiana. He claims that Louisiana law is applicable and that Bollinger is liable to him under Civil Code Articles 2315, 2316, 2317, and 2320. Bollinger suggests to the Court that plaintiff’s claims against Bisso Marine, LLC, as owner of the vessel, arise pursuant to 33 U.S.C. §905(b) and that his claims as to Bisso are controlled by the general maritime law. 1. Before a party may be found responsible for injury to a person, the party must have owed a duty to that person. As stated by Judge Duval in Joyner v. Ensco Offshore Co., 2001 WL 118599 (2-9-2001), citing Kerr-Magee Corp. v. Ma-Ju Marine Services, 830 F.2d 1332 (5th Cir. 1987), “The determination whether or not a particular defendant owed a duty to a particular plaintiff is imperative because ‘it is a fundamental principal of tort law that there can be negligence unless there is first a duty.’” Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 2 of 14 3 2. In determining “fault” (under Article 2315), Louisiana courts apply a duty-risk analysis, which the Louisiana Supreme Court has resolved into the following three inquiries: (1) was the affirmative conduct a cause in fact of the resulting harm; (2) was there a duty to protect the plaintiff from this type of harm arising in this manner; (3) was that duty breached.” See Joyner, supra; Ellison v. Conoco, Inc., 950 F.2d 1196, 1203 (5th Cir. 1992 (citing Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La. 1990)). 3. “Whether an alleged tortfeasor owes a duty to protect others from a particular risk of harm is a legal question to be determined by the trial court.” Martin v. Watson’s Grocery, 615 So.2d 999, 1001 (La. App. 1st Cir. 1993). In making this determination, the Court must look to the particular facts and circumstances surrounding the accident at issue.” See Joyner, supra, citing Parish v. L.M. Daigle Oil Co., Inc., 742 So.2d 18 (La. App 3rd Cir. 1999); Caldwell v. Let the Good Times Roll Festival, 717 So.2d 1263 (La. App. 2nd Cir. 1998); Mays v. Gretna Athletic Boosters, Inc., 668 So.2d 1207 (La. App. 5th Cir. 1996). 4. When independent contractor liability is concerned, “a contractor owes third parties a duty to exercise ordinary care and to refrain from creating hazardous conditions in the fulfillment of its contractual obligations.” Cormier v. Honiron Corp., 771 So.2d 193, 548, 550 (La. App. 3rd Cir. 2000). See also Oxley v. Sabine River Authority, 663 So.2d 497 (La. App. 3rd Cir. 1995). Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 3 of 14 4 5. The Louisiana First Circuit Court of Appeal has set forth the range of duties imposed upon co-independent contractors as follows: “at the very least, (an independent contractor) owes (a fellow independent contractor) the duty to refrain from gross, willful or wanton negligence, and at the most the duty to refrain from creating an unreasonable risk of harm or a hazardous condition.” LaFont v. Chevron, U.S.A., 593 So. 2d 416, 420 (La. App. 1st Cir. 1991); see Joyner, supra. 6. An independent contractor’s duty ceases when it has “completed a project (and) left the work-site” and the owner has “inspected the work-site and accepted the work- site as is.” Stokes v. Freeport-McMoRan, Inc., 2015 WL 8276240 (E.D. La. Dec. 7, 2015) citing Reeves v. Pat Tank, Inc., No. 08-541, 2010 WL 173603 at 5, (W.D. La. Jan. 19, 2010). 7. The vessel owner’s standard of care under 33 U.S.C. §905(b) towards employees of an independent contractor is set forth in the United States Supreme Court case of Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 68 L.Ed.2d 1, 101 S. Ct. 1614 (1981). The vessel owes the stevedore and his longshoreman employees the duty of exercising ordinary care … to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety… As a general matter, the shipowner may rely on the stevedore to avoid exposing the longshoreman to Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 4 of 14 5 unreasonable hazards; Section 41 of the Act (33 U.S.C. §941) requires the stevedore, the longshoreman’s employer, to provide a “reasonably safe” place to work… Scindia, supra, 451 U.S. at 166-167, 170-172, 86 L. Ed. 2nd at 12, 14-15. Under Scindia it is primarily the independent contractor’s duty to provide its employees a “safe workplace.” “The ship is not the common employer of the longshoremen and owes no such statutory duty (to provide a safe workplace) to them.” Scindia, supra, 451 U.S. at 172, 68 L.Ed.2d at 15. 8. The rule relieving vessels from this general duty rests upon the “justifiable expectations of the vessel that the stevedore would perform with reasonable competence and see to the safety of the…operations.” These expectations derive in part from 33 U.S.C. §941, and also derive from indemnity cases decided prior to the 1972 Act, which teach that “the stevedore (is) in the best position to avoid accidents during operations” and that “the shipowner (can) rely on the stevedore’s warranty to perform competently. The stevedore’s obligations in this regard may not be diminished by transferring them to the vessel.” Howlett v. Birkdale Shipping Co., 512 U.S. 92, 114 S. Ct. 2057, 129 L.Ed.2d 78 (1994). 9. Although Scindia interpreted Section 905(b) as it applies to stevedores, the case applies equally to other types of contractors working aboard vessels. Teply v. Mobil Oil Corp., 859 F.2d 375 (5th Cir. 1988); Hill v. Texaco, Inc., 674 F.2d 447 (5th Cir. 1982). Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 5 of 14 6 10. The first duty owed by a shipowner to those working on its vessel under Scindia is the “turnover duty”. This duty focuses on the shipowner’s obligation before or at the commencement of the repairman’s operations. Howlett, supra, 512 U.S. 92, 98; Kirksey v. Tonghai Maritime, 535 F.3d 388, 392 (5th Cir. 2008), cited by Judge Berrigan in Aguliar v. Bollinger Shipyards, Inc., 833 F.Supp. 2d 582 (E.D. La. June 16, 2011). It requires the shipowner to exercise ordinary care under the circumstances to turn over the ship and equipment in such condition that an expert repairman, “mindful of the dangers he should reasonable expect to encounter, arising from the hazards of the ships service or otherwise will be able to exercise ordinary care to carry on the operations with reasonable safety” to persons and property. Howlett, supra, 512 U.S. at 98; Aguliar, supra. 11. It also requires the shipowner to warn the repairman of latent or hidden dangers which are known to the vessel owner or should have been known to it, excluding “dangers which are either: (1) open and obvious or (2) dangers a reasonably competent stevedore should anticipate encountering.” Kirksey, supra, 535 F.3d at 392; Aguliar, supra. 12. The second duty owed by the shipowner to those working on its vessel under Scindia is the “active control duty”. This duty, applicable once the stevedoring operations have begun is violated if the vessel owner “actively involves itself in the Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 6 of 14 7 cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation. Scindia, supra, 451 U.S. at 167, 101 S. Ct. 1614, see also Howlett, supra, 512 U.S. at 98, 114 S.Ct. 2057, cited by Judge Tobias in Viator v. LeBeouf Bros. Towing, LLC, 102 So.3d 228 (La. App. 4th Cir. 10/17/12). The shipowner is not relieved of liability if the condition that causes the injury is outside the area assigned to the repairman. Helaire v. Mobil Oil Co., 709 F.2d 1031, 1036 (5th Cir. 1983). The vessel owner has a duty to avoid exposing the longshoremen to harm “from hazards under the act or control of the vessel” (citing Scindia, 101 S.Ct. at 1626); see Turner v. Costa Line Cargo Services, Inc., 744 F.2d 505 (5th Cir. 1984). WHAT THESE CASES TEACH US POWER DYNAMICS, the independent contractor and employer of plaintiff, which came aboard Bisso’s vessel to perform work at the Bisso’s behest, had the primary duty to see that plaintiff and his co-employees were not exposed to unreasonable hazards in their work area. It was Power Dynamics’ duty to provide plaintiff and his co-employees a safe place to work. It cannot shift this responsibility to the vessel owner, or anyone else. BISSO, the vessel owner, had the non-delegable duty to warn the plaintiff and his co-employees of hidden or latent dangers known to it or which should have been known to it in the area turned over to plaintiff and his co-employees to perform their work. Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 7 of 14 8 BISSO did not have an obligation to warn plaintiff and his co-employees of dangers which were open and obvious or that they, as reasonably competent technicians, should anticipate encountering. BISSO had the non-delegable duty to exercise due care to warn and avoid exposing plaintiff and his co-employees to harm from hazards they may encounter in area on its vessel that remained under Bisso’s active control. It cannot shift this duty to another. BOLLINGER, an co-independent contractor to Power Dynamics, which came aboard the vessel to perform its own work at the direction of Bisso, owed plaintiff and his co-employees the duty to exercise ordinary care when performing its work and to refrain from creating hazardous conditions in the fulfillment of its work. Each party has a specific non-delegable duty it owes to its employees and others who may come aboard the vessel to perform their work. What the cases make clear is that it is not Bollinger’s duty to inspect Bisso’s vessel to make sure tripping hazards in the area that plaintiff and his co-employees were working or tripping hazards in areas of the vessel over which Bisso retained control are identified and rectified. That duty is Bisso’s alone. The cases also make it clear that in the area where Power Dynamic employees are working and which Bisso has turned over to it, Power Dynamics has the duty to make sure the area is safe. This includes the route that the Power Dynamics employees were required to walk to and from their welding machine. That duty is Power Dynamics Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 8 of 14 9 alone. Plaintiff, as the Power Dynamics supervisor on the job, was charged with that responsibility. AS A MATTER OF LAW BOLLINGER DID NOT BREACH A DUTY OWED PLAINTIFF In Bisso’s Memorandum in Opposition (Doc. 44) to Bollinger’s first Motion for Summary Judgment it asked the Court to go where no man has gone before, and, certainly, where no court has gone before. Bisso, while offering no legal precedent, argued that Bollinger had the duty to inspect areas of Bisso’s vessel, outside the boundaries of the area Bollinger was assigned by Bisso to renovate, for tripping hazards. Bisso claims that Bollinger was best situated to do such inspections of Bisso’s vessel. Bisso would have this Court shift Bisso’s non-delegable duty to inspect its own vessel for hazards and warn contractors it invites on board to Bollinger. Bollinger did not own, have control over, or do any work on the roof of Stall #2 where plaintiff claims he was injured. This duty does simply does not exist. No court has expanded this obligation to an independent contractor under these circumstances, and justly so. Where Plaintiff Was Injured The record is clear. Plaintiff testified that he was on the roof of Stall #2 when he tripped and fell when his left foot came into contact with a flat bar or angle iron that was welded to and sticking up on the roof of Stall # 2. See plaintiff’s deposition pages 75- 79, 83, 91-95, 127-128 where he testified that he tripped because his foot came into contact with the angle iron or flange welded to the roof of Stall #2 (Exhibit “1”). See also Exhibit 5 to plaintiff’s deposition, photo of the flange or angle iron welded to the roof of Stall #2 (identified as Exhibit “2”). Plaintiff circled in pen the flange/angle iron on which Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 9 of 14 10 he tripped. By his own testimony plaintiff was injured when he tripped on the flange welded to the roof of Stall #2. He had not set foot on the roof of Stall #3 when his foot hit the angle iron and he fell. There is no evidence or testimony to the contrary. The Roof of Stall #2 Was Not Bollinger’s Work Area In its Opposition Bisso wrote: While there is a dispute as to whether the transition from the rooftop of Welding Stall # 2 and 3 was an unreasonably dangerous condition, if the jury Believes plaintiff’s argument, Bollinger was in the best position to observe, report and or abate the alleged condition. R. Doc. 44, p. 8. (Emphasis added.) Scindia makes it clear it is the duty of vessel owner (Bisso) which invites a contractor aboard its vessel to warn the contractor of latent or hidden dangers it knew or should have known about. While Bisso’s vessel was undergoing renovations at Bollinger’s yard there was a full Bisso crew of 24 aboard at all times. This consisted of Superintendent, Barge Administrator, Foreman, Chief Engineer, Safety Technician, operators, riggers, mechanics, leaderman, divers, a galley crew and company man. See Bisso Marine Daily Progress Report, 6-12-14. (Exhibit “3”). Bisso remained in active control of all areas of the vessel. Bisso did not relinquish control of its vessel to Bollinger. Bisso cannot shift to Bollinger its responsibility to provide to Power Dynamics employees a safe place to work. This is certainly true when it comes to areas of the vessel where Bisso did not ask Bollinger to work, or in areas where Power Dynamics Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 10 of 14 11 employees are required to work. As stated in Scindia and Howlett, the stevedore (contractor) is in the best position to avoid accidents in its work area. Bollinger was instructed by Bisso to remove the roof of Stall # 3, strengthen it, and put it back in place. Bollinger did this. It detached the roof with a crane, placed the roof on the dock, and then moved it to a shed where the welding of steel supports could be accomplished. So that no one would walk into the opening created while the roof of Stall #3 was removed, Bollinger placed yellow warning tape to prevent persons from walking in to the void. By stringing the yellow warning tape Bollinger fulfilled its duty to exercise ordinary care for the safety of others. After the work on the roof of Stall #3 was completed Bollinger brought the roof back and put it in place atop Stall #3. It then removed the warning tape. Bollinger fulfilled its duties. It exercised reasonable care in doing its work on the roof of Stall #3. It did not create a hazardous condition. In accomplishing its work on the roof it exercised reasonable care for the safety of others. Further, Bollinger did not create a hazardous condition. Bollinger did no work on the roof of Stall #2. Bollinger’s only association to the roof of Stall #2 was that the roof it removed it happened to be adjacent to the roof of Stall #3. Bollinger only went on the roof of Stall #2 to put up the yellow warning tape so no one walking on the roof of Stall #2 would unexpectedly walk into the void caused by the removal of Stall #3’s roof. Bollinger would also point out that although plaintiff’s trip and fall on the roof of Stall #2 occurred on June 12, 2014, ten days later, on June 23, 2014, Bisso accepted “as is” the work Bollinger did on the roof of Stall #3. See Bollinger Inspection Report, Exhibit “4” where, in the part titled: Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 11 of 14 12 “ACCEPTANCE SIGN-OFF (as applicable): Complete after all items listed above have been accomplished and found to be acceptable in accordance with the acceptance criteria and/or customer. Signed by Jeremy Connor on behalf of Bollinger on June 21, 2014 and Bisso’s representative on June 23, 2014.” Clearly Bisso was satisfied with the work that Bollinger had performed on the roof of Stall No.3. Bollinger submits that the principal cited in Stokes v. Freeport-McMoRan, Inc., 2015 WL 82766240 (E.D. La. Dec. 7, 2015) that “an independent contractor’s duty ceases when it has “completed a project (and) left the work-site” and the owner has “inspected the work-site and accepted the work-site as is” is applicable even though Bisso’s “ACCEPTANCE” was signed ten days after Plaintiff’s trip and fall. By the time of Plaintiff’s trip and fall Bollinger had completed its project and departed the work-site. Ten days later Bisso accepted Bollinger’s work in the same state as it was on June 12, 2014 when Plaintiff tripped and fell. Any duty that Bollinger may have had for its work on the roof of Stall #3 had ceased by the time plaintiff tripped and fell. CONCLUSION Bollinger does not ask the Court to rule on the evidence. Instead, Bollinger asks the Court to follow the advices of Martin v. Watson’s Grocery, 615 So.2d 999, 1001 (La. App. 1st Cir. 1993) when it wrote: “Whether an alleged tortfeasor owed a duty to protect others from a particular risk of harm is a legal question to be determined by the trial court.” Stated succinctly, Bisso has the duty to provide a safe vessel, Power Dynamics has the duty to make sure the work area turned over to it is safe, and Bollinger has the duty to exercise reasonable care when performing its work and not create a hazard. Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 12 of 14 13 Bollinger invites the Court to accept as true, for the purpose of this Motion, that plaintiff’s testimony as to the facts and circumstances of his accident are true and correct. The same goes for the testimony of the other “fact” witnesses. Bollinger suggests that application of the law on duty/risk analysis to these facts and circumstances will lead the Court to conclude that Bollinger fulfilled its duties to Mr. Granger, and find that Bollinger had no obligation to inspect Bisso’s vessel for potential tripping hazards in areas of Bisso’s vessel over which Bollinger had no interaction or control and over which Bisso and Power Dynamics retained control. For these reasons, Bollinger asks that it be dismissed. Respectfully submitted; /s/ Wilton E. Bland, III Wilton E. Bland, III (#3123) Juan C. Obregon (#35273) MOULEDOUX, BLAND, LEGRAND & BRACKETT 701 Poydras Street, Suite 4250 New Orleans, Louisiana 70139 Telephone: 504-595-3000 Facsimile: 504-522-2121 Email: wbland@mblb.com jobregon@mblb.com Attorneys for Bollinger Shipyards, LLC Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 13 of 14 14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 1, 2016 I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all parties. I further certify that there are no non-CM/ECF participants. /s/Wilton E. Bland, III Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 14 of 14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA STEVE GRANGER, IV VERSUS BISSO MARINE, LLC and BOLLINGER SHIPYARDS, LLC CIVIL ACTION NO: 2:15–cv-00477 SECTION: “L” (3) JUDGE ELDON E. FALLON MAGISTRATE DANIEL E. KNOWLES, III STATEMENT OF UNCONTESTED FACTS NOW INTO COURT, through undersigned counsel, comes defendant, Bollinger Shipyards, LLC (“Bollinger”), which, pursuant to Rule 56.1 of the Uniform District Court Rules, submits the following list of material facts to which there is no material dispute: 1. At all times relevant, Bisso Marine, LLC (“Bisso”) owned the L/B SUPER CHIEF, the pipe laying barge that is the subject of this litigation. 2. At all times relevant, there were four welding stalls on the barge. 3. At all times relevant, the barge was berthed at Bollinger’s shipyard. 4. At all times relevant, plaintiff, Steve Granger, IV, was employed by Power Dynamics, LLC (“PDI”). 5. At all times relevant, Bisso, as barge owner, contracted PDI to perform installation of hydraulic/mechanical systems on the barge in preparation for upcoming jobs. 6. At all times relevant, Bisso, as barge owner, contracted Bollinger to perform various renovations and modifications to the barge in preparation for upcoming jobs. 7. At all times relevant, PDI and Bollinger had no legal relationship other than that of fellow independent contractors hired by Bisso to perform separate services aboard the L/B SUPER CHIEF. 8. At all times relevant, Bollinger’s tasks came at the instruction of Bisso. 9. Bisso instructed Bollinger to straighten and strengthen the structure of the roof of Stall #3. To strengthen the roof of Stall #3 Bollinger, using a crane, removed the Case 2:15-cv-00477-EEF-DEK Document 63-2 Filed 08/01/16 Page 1 of 3 2 roof, brought it to a shed on the dock, welded in steel tube to stiffen it and then replaced it when the roof was removed. Bollinger strung yellow warning tape so that no one would walk off the roof of Stall #2 into the opening left when the roof of Stall #3 was removed. 10. At all times relevant, there was a length of angle iron or flat bar welded to the roof of Stall #2. It stood approximately 3.5 inches above the roof of Stall #2. 11. The angle iron or flat bar was a pre-existing structure having been installed at its location on the roof of Stall #2 sometime prior to the time the barge arrived at Bollinger’s ship yard. 12. At all times relevant, Bisso never instructed Bollinger to repair, modify or renovate the roof of Stall #2. 13. At all times relevant, Bisso never instructed Bollinger to remove or modify or mark the angle iron or flat bar attached to the roof of Stall #2. 14. Bisso never asked Bollinger to inspect the roof of Stall #2. 15. Plaintiff alleges he injured himself when he tripped on the angle iron or flat bar welded to the roof of Stall #2. 16. Plaintiff filed a Complaint against Bollinger and Bisso after allegedly tripping on the angle iron or flat bar welded to the roof of Stall #2. 17. Bisso signed off on and formally approved Bollinger’s repairs and renovations to the roof of Stall #3 after the accident occurred on Stall #2. 18. Bollinger did not own or operate L/B SUPER CHIEF. 19. Bollinger did not employ plaintiff. 20. Bollinger did not instruct, control, or direct plaintiff and the other employees of Power Dynamics, LLC in their project aboard the barge. 21. Bollinger had no employees in the vicinity of the roof of Stall #2 at the time plaintiff claims he tripped on the angle iron. 22. At all times material, Bisso maintained Superintendents, foremen, and crew aboard the L/B SUPER CHIEF. 23. Bollinger had completed its work strengthening the roof of Stall #2 and replaced it some time prior to plaintiff’s accident. Case 2:15-cv-00477-EEF-DEK Document 63-2 Filed 08/01/16 Page 2 of 3 3 Respectfully submitted: /s/ Wilton E. Bland, III_______ Wilton E. Bland, III (#3123) Juan C. Obregon (#35273) MOULEDOUX, BLAND, LEGRAND & BRACKETT 701 Poydras Street, Suite 4250 New Orleans, Louisiana 70139 Telephone: 504-595-3000 Facsimile: 504-522-2121 Email: wbland@mblb.com jobregon@mblb.com Attorneys for Bollinger Shipyards, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 1, 2016 I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all parties. I further certify that there are no non-CM/ECF participants. /s/ Wilton E. Bland, III Case 2:15-cv-00477-EEF-DEK Document 63-2 Filed 08/01/16 Page 3 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA STEVE GRANGER, IV VERSUS BISSO MARINE, LLC and BOLLINGER SHIPYARDS, LLC CIVIL ACTION NO: 2:15–cv-00477 SECTION: “L” (3) JUDGE ELDON E. FALLON MAGISTRATE DANIEL E. KNOWLES, III NOTICE OF SUBMISSION Please take notice that defendant, Bollinger Shipyards, LLC, hereby submits its Motion for Summary Judgment on the Negligence Claims of Plaintiff for hearing before the Honorable Eldon E. Fallon, United States District Court, Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana 70130 on Wednesday, August 17, 2016 at 9:00 a.m. Respectfully submitted; /s/ Wilton E. Bland, III________ Wilton E. Bland, III (#3123) Juan C. Obregon (#35273) MOULEDOUX, BLAND, LEGRAND & BRACKETT 701 Poydras Street, Suite 4250 New Orleans, Louisiana 70139 Telephone: 504-595-3000 Facsimile: 504-522-2121 Email: wbland@mblb.com jobregon@mblb.com Attorneys for Bollinger Shipyards, LLC Case 2:15-cv-00477-EEF-DEK Document 63-3 Filed 08/01/16 Page 1 of 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 1, 2016 I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all parties. I further certify that there are no non-CM/ECF participants. /s/ Wilton E. Bland, III Case 2:15-cv-00477-EEF-DEK Document 63-3 Filed 08/01/16 Page 2 of 2 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 1 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 2 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 3 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 4 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 5 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 6 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 7 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 8 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 9 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 10 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 11 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 12 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 13 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-4 Filed 08/01/16 Page 14 of 14 Case 2:15-cv-00477-EEF-DEK Document 63-5 Filed 08/01/16 Page 1 of 1 Case 2:15-cv-00477-EEF-DEK Document 63-6 Filed 08/01/16 Page 1 of 6 Case 2:15-cv-00477-EEF-DEK Document 63-6 Filed 08/01/16 Page 2 of 6 Case 2:15-cv-00477-EEF-DEK Document 63-6 Filed 08/01/16 Page 3 of 6 Case 2:15-cv-00477-EEF-DEK Document 63-6 Filed 08/01/16 Page 4 of 6 Case 2:15-cv-00477-EEF-DEK Document 63-6 Filed 08/01/16 Page 5 of 6 Case 2:15-cv-00477-EEF-DEK Document 63-6 Filed 08/01/16 Page 6 of 6 Case 2:15-cv-00477-EEF-DEK Document 63-7 Filed 08/01/16 Page 1 of 1