Randy Trahan v. Teleflex, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-943

RANDY TRAHAN

VERSUS

TELEFLEX, INC., TELEFLEX MORSE, INC., ALLEN JOSEPH TRAHAN,
MARSHLAND MARINE, INC., CNA INSURANCE COMPANY, AND
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2003-3183
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Wells Watson
3006 Country Club Rd.
Lake Charles, LA 70605
Counsel for Plaintiff-Appellee:
Randy Trahan

David Frohn
Robin Anderson
One Lakeshore Dr., Suite 1220
Lake Charles, LA 70601
Counsel for Defendant-Appellant:
Teleflex, Inc. & Teleflex Morse

PAINTER, Judge.

The Defendant, Teleflex, Inc. (“Teleflex”), appeals the trial court’s

determination that no material issue of fact remains but that English Bayou is a

navigable waterway for purposes of admiralty jurisdiction.

FACTS

On August 16, 2002, Randy Trahan was riding as a passenger in a seventeen-

foot Stratos Outboard water craft, which he owned but which was being operated by

his brother, Allen Joseph Trahan. They were going east on English Bayou. After

going under the Highway 171 bridge, the steering cable broke causing the boat to

make a sharp turn to the right. As a result, Randy Trahan was thrown out of the boat

and incurred injuries to his right arm, shoulder, and neck. He filed suit on June 12,

2003, asserting that Teleflex, manufacturer of the steering cable, was liable under

maritime products liability and general maritime law.

Teleflex filed exceptions of lack of subject matter jurisdiction and prescription.

In its exceptions, it argued that English Bayou is not a navigable waterway so as to

give rise to admiralty jurisdiction and that, in the absence of a maritime claim, the

matter is prescribed. Randy Trahan filed a motion for partial summary judgment

asserting that no genuine issue of fact remained but that English Bayou is a navigable

waterway, and that the accident has a maritime nexus.

The trial court, after a hearing, found that “English Bayou in the area where

this accident happened, which is very close to where the bridge is, is navigable.” As

a result, the court denied the exception of lack of subject matter jurisdiction and

granted the motion for partial summary judgment. The court, in its oral reasons for

judgment, cited evidence of tugboats using the bayou about a half mile downstream

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865 So.2d 813 from the accident site, a bridge over the bayou designed to open for

boat traffic, and the Highway 171 bridge, which has a span of one hundred feet wide

and is twenty feet high.

Teleflex appeals.

SUBJECT MATTER JURISDICTION

Teleflex asserts that the trial court erred in denying its exception of lack of

subject matter jurisdiction.

Whether a tort action is maritime in nature and governed by
admiralty jurisdiction hinges on it satisfying two tests. The first, the
locality test, is met if the tort occurred on navigable waters or the injury
suffered on land was caused by a vessel on navigable waters. Grubart
v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130
L.Ed.2d 1024 (1995); 46 U.S.C.App. § 740. The second test is met
when the tort bears a “significant connection to a traditional maritime
activity.” This test consists of two prongs: (1) the incident must have
a “potentially disruptive impact on maritime commerce,” and (2) “the
general character” of the “activity giving rise to the incident” shows a
“substantial relationship to traditional maritime activity.” Id. 513 U.S.
at 534, 115 S.Ct. at 1048, quoting Sisson v. Ruby, 497 U.S. 358, 363-65,
110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990).

Conoco, Inc. v. Halter-Calcasieu, L.L.C., 03-136, p. 6 (La.App. 3 Cir. 11/19/03), 865

So.2d 813, 818, writ denied, 03-3493 (La. 3/12/04), 869 So.2d 822.

The mover has the burden of proof on an exception of lack of subject matter

jurisdiction. Smith v. Gretna Mach. & Iron Works, 617 So.2d 144, (La.App. 5 Cir.

1993). In the case sub judice, Teleflex does not argue that the activity giving rise to

the incident does not show a “substantial relationship to traditional maritime activity.”

Conoco, 865 So.2d 813. Rather, it alleges that English Bayou is not navigable at the

site of the accident.

In Louisiana, waterways are navigable in law when they are used or
susceptible of being used in their natural and ordinary condition as
highways for commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on the water.

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Ramsey River Road Property Owners Association, Inc. v. Reeves, 396
So.2d 873, 876 (La.1981). Simply stated, a water course is navigable
when by its depth, width and location it is rendered available for
commerce. Shell Oil Company, 476 So.2d at 1036.

Naquin v. Louisiana Power & Light Co., 98-2270, fn. 4 (La.App. 1 Cir. 3/31/00), 768

So.2d 605, writ denied, 00-1741 (La. 9/15/00), 769 So.2d 546.

The testimony at the hearing on the exception was as follows. Michael

Whitler, Superintendent of Gravity District #4 of Calcasieu Parish, testified that, for

the last eighteen years, he has worked at the pumping station located on English

Bayou two miles east of the Highway 171 bridge. He stated that he has never seen

barges or tugboats going up or down the bayou. He works from 6:00 a.m. until 4:30

p.m, Monday through Thursday, and is away from the pumping station about half the

time. He admitted that he has seen bass boats engaged in tournament fishing for prize

money on English Bayou and knows that it is possible to travel from the pumping

station to the Gulf of Mexico on English Bayou. Whitler further admitted that when

he is at the pumping station, he is in his office and spends very little time looking at

the bayou.

George Bass testified that he worked as an engineer for the Louisiana

Department of Transportation and Development, and that, from about 1972, part of

his work involved maintaining the bridges over English Bayou. He stated that he

never saw the old bridge opened and was not aware of any time when it was opened.

He admitted, however, that he did not have anything to do with the old bridge in the

course of his work with the DOTD. He stated that he did not know how deep the

bayou was at the place the new bridge was built.

Edwin Olmstead testified, that twenty-five years previously, his uncle towed

an old tugboat up the bayou, under the old bridge, scrapped it out, and abandoned it.

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He admitted that it is possible to go from his shipyard on Contraband Bayou up

English Bayou and under the Highway 171 bridge.

Dr. George Castille, III testified that he works doing geoforensics for Coastal

Environments, an environmental consulting firm. He was qualified as an expert

geographer. He testified that, in the course of his investigation, he traveled up

English Bayou to the Highway 397 bridge and that the bayou is between seventy-five

and one hundred feet wide and eleven feet deep at that point. He stated that he did

not travel further up the bayou because the opening under the bridge at Highway 397

was a little narrow. He testified that he went under the Highway 171 bridge on his

way up the bayou and that the central opening of that bridge is about 100 feet wide

and that the bridge is about nineteen feet above the water. He admitted that it is

possible to travel by water from the Highway 171 bridge on English Bayou all the

way into the Gulf of Mexico. He admitted that he had seen evidence of pullboat

logging east of the Highway 171 bridge. He further stated that small barges and some

types of commercial fishing boats could operate on English Bayou.

Additionally, all of the exhibits attached to the exception and memoranda were

introduced into evidence. These consist of maps and photographs of English Bayou

filed with the exception, Teleflex’s supporting memoranda, and the documents

attached to Trahan’s “Supplemental Memorandum in Support of Motion for Summary

Judgment and in Opposition to Exceptions.” Trahan’s exhibits incorporate Coast

Guard rules and regulations, a “Bridge Over Navigable Waters of the United States

Completion Report” concerning the new Highway 171 bridge over English Bayou.

Additionally made part of Trahan’s exhibits are U.S. Army Corps of Engineers

documents which state that the “bridge will have no adverse affect on present or

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future navigation for this section of the waterway” and which indicate that the old

swing bridge was only opened twenty-five times for passage of navigation between

1945 and 1950 and was not opened thereafter, as well as navigation bulletins

notifying mariners about the construction of the new bridge.

Given the evidence before this court in connection with the exception of lack

of subject matter jurisdiction, we find that Teleflex failed to carry its burden of

showing that English Bayou is not “susceptible of being used in their natural and

ordinary condition as highways for commerce, over which trade and travel are or may

be conducted in the customary modes of trade and travel on the water.” Naquin, 768

So.2d at fn. 4. Therefore, we find no error in the trial court’s decision to deny the

motion.

SUMMARY JUDGMENT

We next consider Teleflex’s assertion that the trial court erred in granting

Trahan’s motion for partial summary judgment with regard to the navigability of

English Bayou.

We review summary judgments de novo, asking the same questions the
trial court previously asked in determining whether summary judgment
is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05); 893 So.2d
773. This inquiry seeks to determine whether any genuine issue of
material fact exists and whether the mover is entitled to judgment as a
matter of law. La.Code Civ.P. art. 966(B). “[F]acts are material if they
potentially insure or preclude recovery, affect a litigant's ultimate
success, or determine the outcome of a legal dispute.” Smith v. Our
Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730,
751, quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3
Cir.1991), writs denied, 596 So.2d 211 (La.1992). If issues regarding
subjective facts are present, such as intent, knowledge, motive, malice,
or good faith, a summary judgment determination is usually not
appropriate. Murphy's Lease & Welding Serv., Inc. v. Bayou
Concessions Salvage, Inc., 00-978 (La.App. 3 Cir. 3/8/01), 780 So.2d
1284, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195. Credibility
determinations are also inappropriate in summary judgment procedure.
Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. “[T]he trier of

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fact who has the opportunity to hear all the evidence and to observe the
witnesses" should make such determinations. Belgard v. Am.
Freightways, Inc., 99-1067, p. 5 (La.App. 3 Cir. 12/29/99), 755 So.2d
982, 986, writ denied, 00-293 (La.3/31/00), 756 So.2d 1147.

Myles v. Consolidated Companies, Inc., 05-192, p. 4 (La.App. 3 Cir. 6/1/05), 906

So.2d 677, 680.

The hearing on the motion for partial summary judgment was held at the same

time as the hearing on the exception of lack of subject matter jurisdiction. At the end

of that hearing, the trial court ruled both on the exception and on the motion for

partial summary judgment. We note that the testimony adduced at the hearing cannot

be used in reviewing the motion for summary judgment:

Oral testimony should not be received or considered in deciding a
motion for summary judgment. Wattigny v. Lambert, 453 So.2d 1272
(La.App. 3 Cir.1984), appeal after remand, 490 So.2d 1115 (La.App.
3 Cir.), writ denied, 493 So.2d 1221 (La.1986); Urban Management
Corp. v. Burns, 427 So.2d 1310 (La.App. 2 Cir.1983).

Lewis v. Rodriguez, 95-1035, p. 5 (La.App. 3 Cir. 3/20/96), 671 So.2d 1062, 1064-65.

Navigability is a question of fact and must be proven. Naquin, 768 at fn. 4.

Therefore, we will examine “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits” to determine whether any

question remains in this case as to the navigability of English Bayou. La.Code Civ.P.

art. 966.

Trahan supported his motion with a number of documents. Attached to a

memorandum in support of the motion was an excerpt from the deposition of George

Castille, III, the Defendant’s expert. The excerpt included Castille’s testimony that

English Bayou is navigable under some definitions, that he saw evidence of

commercial pull-boat logging on the bayou, and that pull boat barges are from forty

to fifty feet in length. It further includes his testimony that a small barge could float

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on English Bayou, that some types of commercial fishing can be done in a twenty-

foot boat, and that a ferry operated on English Bayou until 1924 when the first bridge

was built. Also attached to a supporting memorandum was the affidavit of D. Walter

Jessen, a registered land surveyor who made measurements of English Bayou. He

noted that the clearance of the Highway 171 bridge is from sixteen to twenty feet

depending on the water level of the bayou. He further noted that aerial photos show

scars from pull boat barges which pulled logs from points east of the bridge into the

bayou to float to mills downstream.

The affidavit of Nola Mae Ross, also attached to Trahan’s memorandum,

contains her sworn statement that she is an author and historian specializing in the

history of southwest Louisiana and Calcasieu Parish. She stated that Native

Americans used English Bayou to conduct trade, that in 1819 Jean Lafitte made trips

up the Calcasieu River and into English Bayou to the home of Arsene LeBleu, that

a ferry existed which took people and livestock across the bayou and that Old Spanish

Trail crossed the bayou near the LeBleu property. She further opined that equipment

needed for building pumping stations for irrigation in 1902 and 1905 would have

been transported by boat up the bayou. She stated that the bayou was used to

transport rafts of logs, sometimes measuring more than a mile long, downstream to

saw mills in Lake Charles.

Trahan also submitted an affidavit and a supplemental affidavit by E. D. Perry,

a seventy-seven year-old commercial fisherman, in support of the motion for partial

summary judgment. He stated that he fishes commercially on the bayou, with lines

in the bayou east of the Highway 171 bridge, and sells the fish both from his home

and to fish markets. He stated that he mostly owned twelve- to sixteen-foot fishing

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boats but once operated a twenty foot boat. Additionally, Mr. Perry stated that he had

once helped push a twenty-three by eighty foot barge up the bayou to the Goodman

Road area. He saw pull boat logging on the bayou as a boy. According to Mr. Perry,

the Bass-Harliss Lumber Mill once had a mill near the mouth of English Bayou and

could “crib” logs and float them on the bayou while waiting to saw them. Tugs

would push or pull the logs, which were attached to each other, from the mouth of the

bayou up to the first two bays, a little west of the old highway bridge.

The affidavit of William G. Castle, Jr. also supported the motion. Mr. Castle

attested that his family owned property between English Bayou and Old Town Bay.

His family cut timber and floated it down English Bayou to the Calcasieu River and

on to lumber mills in Lake Charles. He stated that he has seen large, mostly

recreational, cabin cruisers on English Bayou as well as barges of commercial size.

He attested that he has personal knowledge of the bayou and opined that it is capable

of sustaining commerce.

The existence of commercial logging was reasserted by the affidavit of Chad

Theilen, who stated that he is familiar with pull boat operations, has seen pull boat

cuts on English Bayou, and once built cabinets for the Castle family from cypress

“sinker” logs pulled out of the bayou.

The affidavit of Bradford Mayo, President of Mayo Land Title Co., affirmed

that a search was made of the title records in the Calcasieu Parish Clerk of Court’s

Office which found no claim by a private person or corporation to the beds or bottoms

of English Bayou.

Also attached to the memorandum was a copy of the Calcasieu Parish Police

Jury Office Emergency Operations Plan which identifies English Bayou as one of

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“other” waterways which are navigable. Additionally, in support of his motion,

Trahan attached a number of Coast Guard Bulletins for mariners containing warnings

with regard to the navigability of English Bayou during the building of the Highway

171 bridge, as well as other documents regarding bridge construction.

In support of its opposition to Trahan’s motion, Teleflex attached the affidavit

of Castille. Castille attested that he has engaged in navigability and water bottoms

research for twenty years and has performed navigability investigations for State

agencies and private citizens. He affirmed that he conducted a search of historical

documents related to the history of Lake Charles and found no reference to any

commercial activity on English Bayou. He opined that in the late nineteenth century

the bayou was smaller near the accident site than the present channel. He stated that

his examination of aerial photos show evidence of pull boat logging downstream, or

west, of the Highway 171 bridge but that he saw no evidence of pull boat logging in

the vicinity or east of the Highway 171 bridge. Castille’s affidavit shows that his

reconnaissance of the bridge showed that the channel varied in width from four

hundred to seventy-five feet and in depth from five to nine feet east of the bridge and

from ten to fifteen feet west of the bridge. He attested that he observed no

commercial use of the bayou, that it is not used for importing or interstate commerce,

and that English Bayou is a terminal water body that does not serve as a connection

between other navigable waterways. He compared the Highway 171 bridge over

English Bayou to its bridge over the east fork of the Calcasieu River. He found that

the east fork bridge has a clearance of forty feet as compared to a twenty foot

clearance for the English Bayou bridge, that it has wooden fenders flanking a much

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wider navigation passage, and that, unlike the bridge over the east fork, the English

Bayou bridge is constructed as if no commercial traffic is expected.

Although, the documents submitted in support of Teleflex’s opposition to the

motion for summary judgment call into question whether English Bayou is currently

being used for commerce, they do not contradict the evidence submitted by Trahan

which shows that the bayou is susceptible to being used as a highway for commerce.

After examining the pleadings, depositions, and affidavits, we find it has been

established that English Bayou is “susceptible of being used in [its] natural and

ordinary condition as [a] highway[ ] for commerce, over which trade and travel are

or may be conducted in the customary modes of trade and travel on the water.”

Naquin, 768 So.2d at fn. 4. Accordingly, under the facts of this case, we find that no

question of fact remains as to the navigability of English Bayou. Therefore, the trial

court correctly granted Trahan’s motion for partial summary judgment.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to the Defendant-Appellant, Teleflex, Inc.

AFFIRMED.

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