Robert E. Thompson v. Cenac Towing Co., L.L.C.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 1185,

ROBERT E. THOMPSON

w
VERSUS

CENAC TOWING CO., L.L.C.

Judgment rendered:
MAR 2 5 2021

On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 583487 Div. / Sec. 22

The Honorable Timothy E. Kelley, Judge Presiding

Michael C. Hendry Attorneys for Plaintiff/Appellant
A.M. "Tony" Clayton Robert E. Thompson
Michael P. Fruge
Richard J. Ward, III
Randall B. Gay, Jr.
Brilliant P. Clayton
Jaclyn C. Chapman
Port Allen, Louisiana
and

Robert Wynne
Michael E. Pierce
Ryan M. Grant
Houston, Texas

Tracy E. Kern Attorneys for Defendant/ Appellee
P. J. Kee Cenac Towing Co., L.L.C.
Richard Scott Jenkins
New Orleans, Louisiana

BEFORE: McDONALD, McCLENDON, WELCH, HOLDRIDGE, AND
CHUTZ, JJ.

HOLDRIDGE, J.

The plaintiff, Robert E. Thompson, appeals the trial court judgment that

granted summary judgment in favor of the defendant, Cenac Towing Co., L.L.C.,

and dismissed the plaintiff' s claims with prejudice. For the following reasons, we

reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The plaintiff, an African-American, was employed by the defendant as a

tankerman. On October 3, 2008, the plaintiff started a 28 -day hitch aboard the

M/V Norman Proehl. The plaintiff allegedly noticed a rope that resembled a noose

hanging in the, tugboat' s wheelhouse. The plaintiff did not express any concerns

about the noose until October 17, 2008, when he went into the wheelhouse and told

the captain that he would report him for the noose. At no time during the verbal

confrontation did the captain make any physical contact with the plaintiff. The

captain reported the incident to the defendant' s personnel coordinator, and the

plaintiff was transferred from the M/V Norman Proehl to another vessel the

following day.

As a result of the incident, on October 14, 2009, the plaintiff fax -filed a

petition seeking damages from the defendant for negligent infliction of emotional

distress and racial discrimination.' The plaintiff alleged that the crew members

aboard the vessel hung a noose in the ship' s wheelhouse in an effort to threaten and

intimidate him because of his race. The plaintiff further alleged that he asked the

captain to remove the noose because it made him feel threatened, but the captain

1 On November 25, 2009, the defendant removed this case to the United States District Court,
Middle District of Louisiana, asserting that the plaintiffs petition stated a claim under federal
employment discrimination laws, including Title VII of the Civil Rights Act of 1964, 42 U.S. C.
2000( e), et seq., and the Civil Rights Act of 1866, 42 U.S. C. § 1981. Thereafter, the plaintiff
filed a motion to remand the case to the Nineteenth Judicial District Court. It appears from the
record that the plaintiff did not pursue the claims made in his petition for any employment-
related damages for racial discrimination, hostile work environment, constructive discharge, or
loss of benefits because of his race. Thus, from the record it appears that the plaintiffs only
claims are based in maritime law.
2

refused to do so. The plaintiff also asserted that the M/V Norman Proehl was

unseaworthy.

On September 28, 2010, the plaintiff amended his petition, asserting that

several Caucasian members of the crew hung a noose in the ship' s wheelhouse in

an effort to threaten and intimidate [ the] [ p] laintiff because of his race." The

plaintiff asserted that, "[ d] ue to the outrageous nature of [ the] [ d] efendant' s

actions, [ the] [
p] aaintiff felt threatened with immediate physical injury and was in

the zone of danger." As a result of the defendant' s negligence and intentional acts,

the plaintiff argued that he had a claim for intentional and negligent infliction of

emotional distress under the " zone of danger" test and that he was entitled to

damages pursuant to La. C. C. art. 2315. 2 Consequently, the plaintiff asserted that

the M/V Norman Proehl was unseaworthy.

In response, the defendant filed a peremptory exception raising the objection

of no cause of action. In its memorandum, the defendant argued that the plaintiffs

amended petition for damages failed to state a cause of action under the Jones Act'

for negligent and intentional infliction of emotional distress, harassment, or

discrimination based upon the plaintiff's race. Additionally, the defendant argued

that the plaintiff's new claim of negligence under La. C. C. art. 2315 in his

amended petition for damages was preempted by the Jones Act and general

2 Louisiana Civil Code article 2315 provides:

A. Every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it.

B. Damages may include loss of consortium, service, and society, and shall be
recoverable by the same respective categories of persons who would have had
a cause of action for wrongful death of an injured person. Damages do not
include costs for future medical treatment, services, surveillance, or

procedures of any kind unless such treatment, services, orsurveillance,

procedures are directly related to a manifest physical or mental injury or
disease. Damages shall include any sales taxes paid by the owner on the
repair or replacement of the property damaged.

3 The Jones Act allows an injured seaman to bring a negligence suit against his employer. See
46 U. S. C. § 30104, et seq.

91

maritime law, which provided the plaintiff his exclusive remedy. In a

memorandum opposing the defendant' s exception, the plaintiff argued that he

sufficiently alleged a claim under the Jones Act for intentional and negligent

infliction of emotional distress. On May 15, 2012, the trial court signed a

judgment granting the defendant' s peremptory exception raising the objection of

no cause of action as to the plaintiff' s claims under La. C. C. art. 2315 and denying

the exception as to the plaintiffs claims under the Jones Act.

On January 3, 2018, the defendant filed a motion for summary judgment

seeking the dismissal of the remainder of the plaintiff' s claims. The defendant

argued that, as a matter of law, the plaintiff could not prove the existence of a

genuine issue of material fact as to his Jones Act and unseaworthiness claims

because he did not satisfy the " zone of danger" test established by the United

States Supreme Court. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532,

114 S. Ct. 23961 129 L.Ed.2d 427 ( 1994). Specifically, the defendant argued that

the plaintiffs deposition testimony, which was attached to the defendant' s

memorandum, provided that the plaintiff did not have physical contact with the

captain during the incident, that he suffered no physical injuries, and that he never

felt physically threatened while aboard the vessel. Therefore, the defendant argued

that summary judgment should be granted because the plaintiff could not satisfy

the " zone of danger" test.

In opposition, the plaintiff argued that his deposition testimony

demonstrated that there was a factual dispute as to whether he felt threatened and

feared for his life. The plaintiff further argued that it was not necessary that he

suffer "
actual physical impact as long as he was threatened with immediate

physical harm." Therefore, the plaintiff argued that the defendant' s motion for

summary judgment should be denied.

On April 9, 2018, the trial court held a hearing on the defendant' s motion.

After hearing arguments, the trial court made an oral ruling granting the

defendant' s motion for summary judgment and dismissing the plaintiff' s claims
with prejudice.
A judgment in accordance with the trial court' s ruling was signed
4
on May 24, 2019. From this judgment, the plaintiff appeals.

STANDARD OF REVIEW

Appellate courts review the granting of summary judgment de novo using

the same criteria governing the trial court' s consideration of whether summary

judgment is appropriate, i.e., whether there is any genuine issue of material fact

and whether the mover is entitled to judgment as a matter of law. La. C. C. P. art.

966( A)(3); Turner v. Rabalais, 2017- 0741 ( La. App. 1 Cir. 12/ 21/ 17), 240 So. 3d

251, 255, writ denied, 2018- 0123 ( La. 3/ 9/ 18), 237 So. 3d 1193.

The summary judgment procedure is expressly favored in the law and is

designed to secure the just, speedy, and inexpensive determination of non-domestic

civil actions. La. C. C. P. art. 966( A)(2). The purpose of a motion for summary

judgment is to pierce the pleadings and to assess the proof in order to see whether

there is a genuine need for trial., Hines v. Garrett, 2004- 0806 ( La. 6/ 25/ 04), 876

So. 2d 764, 769 ( per curiam).
After an adequate opportunity for discovery,

summary judgment shall be granted if the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact and that the

mover is entitled to judgment as a matter of law. La. C. C. P. art. 966( A)(3). The

only documents that may be filed in support of or in opposition to the motion are

4 On May 22, 2018, the trial court signed a judgment, granting summary judgment in favor of the
defendant, which was appealed to this court. On April 12, 2019, this court dismissed the
plaintiffs appeal because the May 22, 2018 judgment lacked the appropriate decretal language.
See Thompson v. Cenae Towing Co., L.L.C., 2018- 1282 ( La. App. 1 Cir. 4/ 12/ 19), 2019 WL
1578170, at * 2 ( unpublished). On May 24, 2019, the trial court signed a revised final judgment
that is at issue in the instant matter.
5

pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified

medical records, written stipulations, and admissions. La. C. C. P. art. 966( A)(4).

On a motion for summary judgment, the burden of proof is on the mover. If,

however, the mover will not bear the burden of proof at trial on the matter that is

before the court on the motion, the mover's burden on the motion does not require

that all essential elements of the adverse party' s claim, action, or defense be

negated.
Instead, after meeting its initial burden, the mover may point out to the

court that there is an absence of factual support for one or more elements essential

to the adverse party' s claim, action, or defense. Thereafter, summary judgment

shall be granted unless the adverse party can produce factual evidence sufficient to

establish the existence of a genuine issue of material fact or that the mover is not

entitled to judgment as a matter of law. La. C. C. P. art. 966( D)( 1).

The court may consider only those documents filed in support of or in

opposition to the motion for summary judgment and shall consider any documents

to which no objection is made. Any objection to a document shall be raised in a

timely filed opposition or reply memorandum. The court shall consider all

objections prior to rendering judgment. The court shall specifically state on the

record or in writing which documents, if any, it held to be inadmissible or declined

to consider. La. C. C. P. art. 966( D)(2).

APPLICABLE LAW

Admiralty claims may be brought in federal court pursuant to its admiralty

jurisdiction or in state court under the savings to suitors clause. See 28 U.S. C. §

1333. In either case, federal substantive maritime law applies. Graham v.

Offshore Specialty Fabricators, Inc., 2009- 0117 ( La. App. 1 Cir. 1/ 8/ 10), 37

So. 3d 1002, 1008.

R

The Jones Act allows an injured seaman to bring a negligence suit against

his employer. 46 U.S. C. § 30104. The employer' s potential liability extends to all

personal injuries arising during the course of the seaman' s employment, but proof

of negligence is essential to recovery. Foster v. Destin Trading Corp., 96- 0803

La. 5/ 30/ 97), 700 So. 2d 199, 208. Such negligence may arise in many ways,

including the failure to use reasonable care to provide a seaman with a safe place to

work, the existence of a dangerous condition on or about the vessel, or any other

breach of the duty of care. Zentner v. Seacor Marine, Inc., 2006- 2049 ( La. App.

1 Cir. 10/ 24/ 07), 977 So. 2d 962, 965. The duty of care owed by an employer

under the Jones Act is that of ordinary prudence, namely, the duty to take

reasonable care under the circumstances. Foster, 700 So. 2d at 208. The seaman

bears the evidentiary burden of proving that a breach of the duty owed by the

employer was a cause of his injuries. Id. A seaman is obligated under the Jones

Act to act with ordinary prudence under the circumstances. The circumstances of a

seaman' s employment include not only his reliance on his employer to provide a

safe work environment but also his own experience, training, or education. The

reasonable person standard in a Jones Act negligence action becomes that of the

reasonable seaman in like circumstances. Graham, 37 So. 3d at 1009- 10.

DISCUSSION

The plaintiff argues that the trial court " misapplied the legal standard by

which [ his] claims should be evaluated." Specifically, the plaintiff argues that the

trial court erred in weighing evidence and making factual determinations

concerning the plaintiff' s subjective feelings to determine if he was in the zone of

danger. Thus, the plaintiff argues that the trial court erred in dismissing his claims

for negligent and intentional infliction of emotional distress under the Jones Act

based solely upon a lack of physical impact or injury.

7

Generally, state courts exercising concurrent maritime jurisdiction are bound

to apply substantive federal maritime statutory law and to follow United States

Supreme Court maritime jurisprudence. Trinh ex rel. Tran v. Dufrene Boats,

Inc., 2008- 0824 ( La. App. 1 Cir. 1/ 22/ 09), 6 So. 3d 830, 839, writs denied, 2009-

0406 and 2009- 0411 ( La. 4/ 13/ 09), 5 So.3d 166, cert. denied, 558 U.S. 875, 130

S. Ct. 228, 175 L.Ed.2d 128 ( 2009). The United States Supreme Court held that an

employee may recover damages based on negligence under the Federal Employer' s

Liability Act (FELA), 45 U.S. C. § 51, et seq., for mental or emotional injuries only

if the employee can show he was within a zone of danger of physical impacts

Zentner, 977 So.2d at 965, citing Consolidated Rail Corp., 512 U.S. 532, 114

S. Ct. 2396. The " zone of danger" test adopted by the United States Supreme Court

for actions brought pursuant to FELA, and extended to Jones Act claims, is

described as follows:

Under this test, a worker within the zone of danger of physical impact
will be able to recover for emotional injury caused by fear of physical
injury to himself, whereas a worker outside the zone will not. ...
Whether an employee' s claim satisfied the zone of danger test is a
legal question. Further, the Supreme Court noted that, regarding
injuries which constituted mental or emotional harm ( such as fright or
anxiety) that are caused by the negligence of another and that are not
directly brought about by a physical injury, substantial limitation must
be placed on the class of plaintiffs that may recover for emotional
injuries and on the injuries that may be compensable.

Zentner, 977 So. 2d at 965- 66 ( internal quotation marks and citations

omitted.)

The " zone of danger" test is a less restrictive standard— it limits recovery to

plaintiffs who either sustained a physical impact or are within the zone of danger

of physical contact. In re Oil Spill by Oil Rig " Deepwater Horizon" in Gulf of

Mexico, on April 20, 2010, 2010- 03261, 2012- 1713, 2020 WL 638571, at * 3

5 The Jones Act incorporates and makes applicable to seaman the substantive recovery
provisions of the FELA. See Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S. Ct. 317, 325,
112 L.Ed.2d 275 ( 1990).

E. D. La. Feb. 11, 2020). The plaintiff must, objectively, be within a fact -

particular zone of danger. Id.; see also In re Oil Spill by Oil Rig " Deepwater

Horizon" in Gulf of Mexico, on April 20, 2010, 2010- 032619 F. Supp. 3d

2020 WL 1702343, at * 3 ( E.D. La. Apr. 8, 2020). The plaintiff must also

subjectively believe that he is in immediate risk of physical harm. Id. In certain

circumstances, a plaintiff may recover for purely emotional harm under the zone of

danger theory if the claimant was objectively within the zone of danger; claimant

feared for his life at the time of the accident or person was in danger; and his

emotional injuries were a reasonably foreseeable consequence of the defendant' s

alleged negligence.
Anselmi v. Penrod Drilling Corp., 813 F. Supp. 436, 441

E.D. La. 1993). However, to recover for such mental anguish, an individual must

show that he was involved in a hazardous situation, within the zone of danger, and

that his fear was reasonable given the circumstances. See McDonald v. Illinois

Cent. Gulf R. Co., 546 So. 2d 1287, 1292 ( La. App. 1 Cir. 1989), writs denied, 551

So. 2d 1340 ( La. 1989). More than minimal inconvenience and worry must be

shown before damages may be awarded. Id.

In this case, it is undisputed that the plaintiff sustained no actual physical

injury or harm from seeing the noose in the wheelhouse or during his verbal

confrontation with the captain. The plaintiff was also objectively within the zone

of danger because he was on the tugboat where he was potentially exposed to

physical injury or harm by the person or persons who hung the noose. Therefore,

the plaintiff s claim for emotional damages under the " zone of danger" test against

the defendant depends upon whether he felt threatened with imminent physical

impact, and if so, did that threat place him in reasonable apprehension of physical

harm. See Consolidated Rail Corp., 512 U.S. at 556; 114 S. Ct. at 2411; Zentner

977 So. 2d at 966. In other words, the plaintiff must have feared that his life was

E

endangered. See Williams v. Treasure Chest Casino, L.L.C., 95- 3968, 97- 0947,

1998 WL 42586, at * 7 ( E. D. La. Feb. 3, 1998).

While deposition testimony may be used to support or oppose a motion for

summary judgment, it may not be weighed. Ray v. Rodmar Enterprises, Inc.,

2003- 1133 ( La. App. 3 Cir. 3/ 17/ 04), 868 So. 2d 311, 315. The credibility of a

witness is a question of fact, thus, a trial court cannot make credibility

determinations on a motion for summary judgment. See The Shaw Group v.

Kulick, 2004- 0697, 2004- 0698 ( La. App. 1 Cir. 4/ 8/ 05), 915 So. 2d 796, 801, writ

denied, 2005- 1205 ( La. 11/ 28/ 05), 916 So. 2d 148. In this case, the only contested

issue presented on summary judgment is whether there are any disputed facts or

interpretation of facts wherein the plaintiff, an African-American worker, who

began a 28 -day hitch aboard a tugboat, would reasonably fear that he was

threatened with imminent physical harm such that he reasonably feared for his life

upon seeing a noose in the tugboat' s wheelhouse at the beginning of his service. In

his deposition, the plaintiff stated that the noose made him feel threatened for his

life. Thus, the issue of whether an African-American plaintiff felt threatened for

his life upon seeing the noose in the tugboat' s wheelhouse is one that necessarily

requires the court to make a credibility determination. The trial court should assess

the plaintiff' s credibility at a trial on the merits and not at summary judgment. See

Johnson v. Government Employees Ins. Co., 2005- 476 ( La. App. 3 Cir.

11/ 2/ 05), 916 So. 2d 451, 454- 55. Subjective facts such as knowledge, intent, fear,

and emotional injuries that are personal to the party, and which require the trial

court to make credibility determinations and weigh the evidence, are generally

improper evidence upon which to grant summary judgment. See Jones v. Estate

of Santiago, 2003- 1424 ( La. 4/ 14/ 04), 870 So. 2d 1002, 1006; Ackel v. Ackel,

2005- 2230 ( La. App. 1 Cir. 6/ 20/ 07), 2007 WL 1765561, at * 7 ( unpublished).

10

Considering the unique facts of this case, it would be an improper use of summary

judgment for this court, on de novo review, to attempt to determine the level of fear

experienced by an African-American worker when seeing a noose on a tugboat

upon which he would have to work for 28 -days.

Accordingly, after a de novo review of the record, we find that the trial court

improperly granted the defendant' s motion for summary judgment because it

weighed evidence of material fact as to the credibility of the witnesses. Given the

testimony of the plaintiff as to fearing for his life or imminent physical harm, the

trial court erred in finding that the plaintiff did not have a claim for intentional and

negligent infliction of emotional distress under the Jones Act and in granting the

motion for summary judgment in favor of the defendant. Therefore, we reverse the

judgment of the trial court and remand this case for further proceedings.

CONCLUSION

For the above reasons, we reverse the May 24, 2019 judgment in favor of the

defendant, Cenac Towing Co., L.L.C., and against the plaintiff, Robert E.

Thompson, dismissing all of his claims against Cenac Towing Co., L.L.C., with

prejudice and remand to the trial court for further proceedings. Costs of this appeal

are assessed against the defendant, Cenac Towing Co., L.L.C.

REVERSED AND REMANDED.

11

ROBERT E. THOMPSON STATE OF LOUISIANA

COURT OF APPEAL
VERSUS
FIRST CIRCUIT

CENAC TOWING CO., L.L.C. NO. 2019 -CA -1185

MCCLENDON, J., dissenting.

The majority erroneously concludes that the plaintiff was " objectively within

the zone of danger because he was on the tugboat where he was potentially exposed

to physical injury or harm." I respectfully suggest that the majority ignores the

requirement of immediacy in a zone of danger test. The Fifth Circuit in In re

Deepwater Horizon, No. 20- 30300, Fed. Appx. , 2021 WL 96168, at * 3

5th Cir. 1/ 11/ 21) ( per curiam) ( unpublished), held for the plaintiff to objectively be

within the zone of danger, he must be in the same location as the accident and face

an immediate risk of harm. The plaintiffs in Deepwater Horizon argued they were

under constant threat of another massive explosion that would send debris towards

them and their boat" when they were attempting to rescue people in the water; were

frequently forced to reverse their boat due to the overwhelming heat of the burning

rig"; suffered burns on their faces and had their hair singed; and felt and heard deep

rumbling sounds coming from deep below the surface of the water. Id. The

plaintiffs also alleged their boat' s powder coating " melted in places." Id. However,

even in this situation, the Fifth Circuit concluded these allegations were insufficient

to satisfy the zone of danger test.' Id.

Ferguson v. CSX Transportation, 36 F. Supp.2d 253 ( E.D. Pa. 1999), affd,

208 F. 3d 205 ( 3d Cir. 2000), further exemplifies the requirement that the risk of

We also note that the Fifth Circuit has left open the question of whether a zone -of d
- anger
negligent infliction of emotional distress claim presents a recoverable injury. See Deepwater
Horizon, 2021 WL 96168, at * 3; Barker v. Hercules Offshore, Inc., 713 F. 3d 208, 224 ( 5th Cir.
2013).

harm or impact must be immediate in order for the plaintiff to fall within the zone

of danger. The Ferguson court found that an employee was not within the zone of

danger of physical impact when a co -employee made verbal and physical threats,

including threats to kill him and burn down his house. The court stated that " the fear

of some future harm caused by verbal threats is insufficient to place plaintiff within

the actionable zone of danger because these threats of future harm did not place

plaintiff `in immediate risk of physical harm or threatened [ him] imminently with

physical impact."' Id. at 256. See also Barker v. Hercules Offshore, Inc., 713

F. 3d 208, 224 ( 5th Cir. 2013) ( holding that the plaintiff was not within the zone of

danger because he was two feet away from the opening in the drill floor, which was

where the accident occurred, and had testified that he was " out of the dangerous

position where something could have happened"); Plaisance v. Texaco, Inc., 966

F. 2d 166, 167- 68 ( 5th Cir. 1992) ( en banc) ( holding the same when the plaintiff "did

not personally participate in fighting the fire" and " the fire did not spread" to other

parts of the boat and thus did not put the plaintiff in any danger); Ainsworth v.

Penrod Drilling Corp., 972 F. 2d 546, 548 ( 5th Cir. 1992) ( per curiam) ( holding the

same when the plaintiff was " approximately one hundred feet away from" the crash

and admitted that he knew the crashed helicopter would not fall into the room he

was in); Zentner v. Seacor Marine, Inc., 2006- 2049 ( La. App. 1 Cir. 10/ 24/ 07),

977 So. 2d 962, 967 ( affirming grant of defendant' s summary judgment where the

evidence did not demonstrate that verbal confrontations between the parties placed

the plaintiff in reasonable apprehension of physical harm so as to satisfy the zone of

danger test).

The Supreme Court explicitly acknowledged that the zone of danger test will

inevitably preclude some genuine emotional injuries. See Consolidated Rail Corp.

v. Gottshall, 512 U.S. 532, 557 114 S. Ct. 2396, 2411, 129 L.Ed.2d 427 ( 1994). It

appears that the plaintiff may fall into this category. The plaintiff herein failed to
2

produce factual evidence sufficient to establish the existence of a genuine issue of

material fact or that the defendant is not entitled to judgment as a matter of law.

While the plaintiff may have subjectively believed he was in immediate risk of

physical harm, the jurisprudence does not support a finding that he was objectively

within a fact -particular and immediate zone of danger.' For that reason, I would

affirm the decision of the trial court.

2 In Bennett v. CSX Transportation, Inc., 2011 WL 13237597 ( E. D.N.C. Dec. 23, 2011), threats
and racial slurs were spray -painted on the plaintiffs vehicle while she was at work. Her rear
passenger window was shattered, and a mannequin head was discovered in her backseat with its
face painted black and a noose tied around its neck. The Bennett court found that the plaintiff
alleged facts sufficient to survive a motion for summary judgment" on her presence in the zone
of danger in the aftermath of the vandalism. Id. at * 4. However, I find Bennett to be
distinguishable and therefore not instructive, as the facts in that case presented a greater sense of
urgency and objectively indicated an immediate risk of physical harm to the plaintiff.
3