[B]Case Name: [/B][I]Jill P. Bross, et al. v. Chevron U.S.A. Inc., et al.
[/I][B]Date Decided: [/B]August 13, 2009
[B]Court: [/B]U.S.D.C. Western District of Louisiana, Lafayette Division
[B]Judge: [/B]Judge Doherty
[B]Citation:[/B] 2009 WL 2485838 [B]Background:
[/B]Defendant, Chevron, sought summary judgment and dismissal of plaintiffs’ and intervenor’s, (Louisiana Workers Compensation Corporation) claim on the grounds that the hole decedent, Alan Bross, fell through was an [I]open and obvious condition [/I]for which Chevron owed Bross no legal duty to warn or correct, as a matter of law.
Bross was an employee of Qualitech Services, Inc. (“Qualitech”). Under a Master Service Contract between Qualitech and Chevron Bross provided serves for and under Chevron’s supervision.
Bross was contracted to provide supervisory diving services for Chevron by supervising Chevron’s contract diving crews and supervising the vessels upon which the divers worked.
Specifically, Bross was in charge overseeing the diving crews who were performing pipeline inspection and repair work. This Court has held that Bross was an independent contractor.
Bross traveled to Chevron’s Zulu platform, located in the Gulf of Mexico on the Outer Continental Shelf. Bross was transported to the Zulu platform aboard the M/V MR. CLINT and and shortly after boarding the platform Bross fell approximately 20 feet from the deck of the platform striking his head on the platform’s boat landing and falling into the water.
Bross died as a result of a skull fracture.
[/B]Did this Court grant Chevron’s motion for summary judgment finding there was insufficient evidence presented to create genuine issues of material fact?
[/B]Plaintiffs claimed that because there were no eyewitnesses to the actual accident itself, then there is no definitive evidence as to how the accident occurred. Therefore, Bross falling through defective grating or an open and obvious hole are equally likely scenarios. *
Secondly, plaintiffs contended there were material fact whether Chevron properly warned Bross not to go to the Zulu platform on the day of his death.
Chevron sought summary judgment on the grounds it is undisputed that the hole Bross fell through was open and obvious and therefore owed no duty to warn Bross of or correct the condition. Specifically Chevron asserted that he had this knowledge because of his job responsibilities as a supervisor of Chevron’s dive crew and he had been specifically warned about the condition of the platform.
Plaintiffs countered by arguing that Bross was not warned to avoid the platform noting there was no evidence that he was warned by co-workers. Plaintiffs point to the investigation upon Bross’s death and that none of the employees stated that Bross was warned.
Ultimately, this Court found that it was more appropriate to determine whether a duty was owed to Bross based upon the open and obvious condition of the hole in the deck because whether or not Bross was warned not to travel to the Zulu platform improperly focused on the subjective awareness of Bross.
Chevron points to testimony of a captain, whom drove Bross to the platform, that he witnessed Bross falling and did not see Bross struggle to maintain his balance. Moreover, the captain testified that he didn’t see Bross hit anything during his fall and this, according to Chevron, establishes that the hole was open, obvious, and clear.
This Court found that Chevron’s assertions, again, spoke to Bross’s subjective intent that he knew of the defect and therefore they owed no duty to Bross. However, this Court found that the appropriate inquiry, again, was not Bross’s subjective intent but rather whether the defect was open and obvious.
Accordingly, this Court denied Chevron’s motion for summary judgment finding material issues of genuine fact existed whether the defect is open and obvious.
Lousiana law governed the substantive inquiry whether Chevron owed Bross a duty to warn him of the defect because Bross claim was governed in part on the Outer Continental Shelf Lands Act (“OCSLA”) which adopts the law of the adjacent state as surrogate federal law. (So long as it is not inconsistent with other federal laws)[/B]
[B]Accordingly, a landowner (Chevron) owes a plaintiff (Bross) a duty to discovery any unreasonably dangerous condition and to either correct the condition or warn of its existence. [/B]
[B]Chevron asserted that Bross “knew” of the defect or “had to know” because it was open and obvious however, according to the law, the plaintiff’s subjective intent is the improper inquiry. The inquiry of duty relies on whether the defendant has warned the plaintiff, (introduced evidence to prove that they did) or whether the risk was unreasonable or not (open and obvious - or not) [/B]
[B]Steve Gordon [/B]