Wendy Thibodeaux v. State of La., Dotd

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-893

WENDY THIBODEAUX

VERSUS

STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 25,156 “A”
HONORABLE KATHY A. JOHNSON, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Jimmie C. Peters, Judges.

AFFIRMED IN PART AND REVERSED IN PART.

Peters, J., concurs in the result.

James D. “Buddy” Caldwell
Attorney General
Henry S. Provosty
Lena D. Giangrosso
Provosty & Gankendorff, L.L.C.
Special Assistant Attorneys General
650 Poydras Street, Suite 2700
New Orleans, LA 70130
(504) 410-2795
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, through the Department of Transportation and
Development

John F. Blackwell
Attorney at Law
P. O. Box 10051
New Iberia, LA 70562-0051
(337) 367-8517
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, through the Department of Transportation and
Development

W. Mark McKee
Attorney at Law
P. O. Box 1628
Columbia, LA 71418
(318) 649-2622
COUNSEL FOR PLAINTIFF/APPELLEE:
Wendy Thibodeaux

SAUNDERS, Judge.

This is a Jones Act case wherein the Plaintiff, Wendy Thibodeaux, sued

Defendant, the State of Louisiana, Department of Transportation and Development,

for damages arising from a personal injury she sustained while cleaning up oil on a

state-owned ferry boat. The trial court denied Defendant’s motion for summary

judgment and granted Plaintiff’s motion for partial summary judgment. For the

reasons discussed herein, we affirm as to the former and reverse as to the latter.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Wendy Thibodeaux (hereinafter “Ms. Thibodeaux”), was

employed as a deckhand on the W.F. Cooper, a ferry boat (hereinafter “the vessel”)

owned by Defendant, the State of Louisiana, Department of Transportation and

Development (hereinafter “the State”). On August 1, 2007, she slipped and

sustained injuries while cleaning the vessel’s engine room. She timely filed suit

against the State, alleging that she was a seaman under the Jones Act and maritime

law and that she sustained personal injuries while in the course and scope of her

State employment.

The State filed a motion for summary judgment on the issue of causation,

arguing that Ms. Thibodeaux’s own negligence was the sole cause of her injury.

For the purpose of that motion, the State assumed that the vessel had a leakage

resulting in oil on the engine room floor and walls and that Ms. Thibodeaux was

instructed to clean up the oil. The State specified that it accepted those facts only

for the purpose of its motion, and the facts were “not stipulated for use at trial or

any other purpose.” The trial court denied the State’s motion for summary

judgment.

Ms. Thibodeaux then filed a motion for partial summary judgment on the

issue of liability, arguing that the vessel was unseaworthy and the State was

negligent in failing to repair it. The trial court granted Ms. Thibodeaux’s motion,

finding in favor of Ms. Thibodeaux as to the State’s Jones Act negligence and as to

the issue of unseaworthiness. The trial court stated in its reasons for judgment

from the bench that its primary considerations were the deposition of the vessel’s

captain, Captain Joe Brooks, the fact that the vessel was “an older vessel,” and the

captain’s testimony that it leaked oil and was the only vessel of its kind in the state.

The State appeals as to both motions. For the reasons discussed herein, we

affirm the trial court’s denial of the State’s motion for summary judgment, and we

reverse the trial court’s grant of partial summary judgment on the issue of liability.

ASSIGNMENTS OF ERROR

On appeal, the State submits the following issues:

1. Whether the Trial Court was correct in denying the State’s Motion
for Summary Judgment.

2. Whether any genuine issue of material fact remains as to the
negligence of Wendy Thibodeaux.

3. Whether the Trial Court was correct in granting Ms. Thibodeaux’s
Motion for Partial Summary Judgment.

4. Whether any genuine issue of material fact remains as to the
alleged Jones Act negligence of the State.

5. Whether any genuine issue of material fact remains as to the
alleged unseaworthiness of the M/V W.F. Cooper.

6. Whether the Trial court applied the correct definition of
seaworthiness in making a determination as to the status of the
vessel.

7. Whether the Trial Court applied the correct standard of proof.

8. Whether the Trial Court correctly assigned costs to the State in this
matter.

LAW AND ANALYSIS

This court reviews summary judgments de novo. Thibodeaux v. Lafayette

Gen. Surgical Hosp., LLC, 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. A
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motion for summary judgment “shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to material fact, and that

mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

The burden of proof for a summary judgment motion lies on the movant.

However, where the movant will not bear the burden of proof at trial, the movant’s

burden on the motion is only to establish an absence of factual support for one or

more elements essential to the adverse party’s claim. La.Code Civ.P. art.

966(C)(2). Thereafter, if the adverse party fails to produce factual support

sufficient to establish that he will be able to meet his evidentiary burden of proof at

trial, no genuine issue of material fact exists. Id.

For purposes of summary judgment, “the judge’s role is not to evaluate the

weight of the evidence or to determine the truth of the matter, but instead to

determine whether there is a genuine issue of triable fact. All doubts should be

resolved in the non-moving party’s favor.” Luther v. IOM Co. LLC, 13-353, p. 5

(La. 10/15/13), __ So.3d __, __.

In addition, La.Code Civ.P. art. 966(E)(2), in effect at the time of the hearing

on these motions, provided that:

Only evidence admitted for purposes of the motion for summary
judgment shall be considered by the court in its ruling on the motion.

Causation
The State seeks summary judgment on the grounds that Ms. Thibodeaux

would be unable to prove causation because, while cleaning the oil with soap and

water, she herself created the condition which caused her injury. Causation is a

necessary element of a negligence claim under the Jones Act, in which:

The seaman bears the evidentiary burden of proving that a breach of
the duty owed by the employer was a cause of his injuries. However, a

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seaman need only present “slight evidence” that his employer’s
negligence caused his injuries in order to reach the jury or to be
sustained upon appellate review. The employer can introduce
evidence of the seaman’s own negligence to reduce damages through
application of pure comparative fault principles.

Foster v. Destin Trading Corp., 96-803, pp. 4-5 (La. 5/30/97), 700 So.2d 199, 208

(internal citation omitted).

Using this standard, we find that Ms. Thibodeaux has presented sufficient

evidence to preclude summary judgment as to the causation element of her claim.

In a transcript attached to her opposition to the State’s summary judgment motion,

Ms. Thibodeaux testified that she had not yet mopped the portion of the floor on

which she slipped. She further testified that she was cleaning according to

operational instructions. In contrast, the State alleges she created the condition of

soapy water mixed with oil through her own act of mopping. Therefore, there

exists a genuine issue of material fact as to causation. Accordingly, we affirm the

trial court’s denial of the State’s motion for summary judgment.

Liability

Ms. Thibodeaux argues that she is entitled to partial summary judgment on

the issue of liability based on the State’s Jones Act negligence and the vessel’s

unseaworthiness. As factual support, she submits that the vessel had an engine oil

leakage, a water leakage from the propeller shaft, and poor flooring conditions.

She asserts that the State’s acceptance in its own summary judgment motion that

there was a leakage, constitutes an agreement on the facts that demonstrate Jones

Act negligence and unseaworthiness – specifically that a leakage existed on the

vessel.

Negligence under the Jones Act may include “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.” Id. at
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208. Unseaworthiness is a distinct concept from negligence. Usner v. Luckenbach

Overseas Corp., 400 U.S. 494, 91 S. Ct. 514 (1971). The State’s duty regarding

seaworthiness is “only to furnish a vessel and appurtenances reasonably fit for their

intended use. The standard is not perfection, but reasonable fitness[.]” Mitchell v.

Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933 (1960).

In its own motion for summary judgment, as discussed above, the State

argued a lack of causation. The State assumed there was a leakage for the

purposes of that argument. The State specified that that factual assumption was

“not stipulated for use at trial or any other purpose,” but solely for the purpose of

the State’s own motion. In its memorandum in support of its motion for summary

judgment, the State submitted:

Defendant, for purposes of this summary judgment only, has accepted
the plaintiff’s claims that the F.W. Cooper had experienced leakage
around the packing in the engine room on the 31st of July, 2007; that
this leakage caused water in the engine room to not rise up carrying
oil with it which coated the surfaces that the oil touched including the
walls and the floors of the engine room. Defendant also accepts for
purposes of this motion only that on the 1st of August, 2007, the
plaintiff’s supervisor Joe Brooks instructed her to clean the oil from
the walls and floors of the engine room of the F.W. Cooper and that
around 10:30 p.m., the plaintiff began to wash down the walls and
floors of the engine room with soap and that around 11:00 p.m. she
slipped in the engine room and injured her back.

(Emphasis added.)

Ms. Thibodeaux argues that the State has failed to contest the existence of

the leakage after admitting it to be true in the State’s motion. While the State

acknowledged in its opposition to summary judgment that there was oil on the

engine floor, the State disputed that it was negligent and that the vessel was in an

unseaworthy condition. In support of its opposition, the State attached an affidavit

and report from Captain Tim Anselmi finding that the vessel was in serviceable

condition and “in good order and clean without any slip/fall risks.” This evidence

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is sufficient to create a dispute as to a genuine issue of material fact and, therefore,

precludes summary judgment.

Whether the State is liable for Ms. Thibodeaux’s injury must depend on the

factfinder’s conclusions regarding the existence of a leakage and whether the

vessel was seaworthy. Taken together, Ms. Thibodeaux’s motion and the State’s

opposition clearly show that the parties dispute material facts tending to prove or

disprove liability. Ms. Thibodeaux supports her motion and the State supports its

opposition with permissible evidence under La.Code Civ.P. arts. 966 and 967.

It is clear that in granting partial summary judgment on the issue of liability

in favor of Ms. Thibodeaux, the trial court either impermissibly weighed disputed

factual evidence or considered the existence of the leakage to be an undisputed fact

for the purposes of Ms. Thibodeaux’s motion. As noted above, La.Code Civ.P. art.

966(E)(2) provides that “[o]nly evidence admitted for purposes of the motion for

summary judgment shall be considered by the court in its ruling on the motion.”

Because the State accepted the fact that there was a leakage only for the purposes

of its own separate motion for summary judgment, the trial court was permitted to

consider this an undisputed fact solely in considering the State’s motion. The

existence of a leakage does not qualify as an undisputed fact for the purposes of

Ms. Thibodeaux’s motion. Accordingly, we find that the trial court erred in

granting summary judgment in favor of Ms. Thibodeaux on the issue of liability.

Ms. Thibodeaux argues in brief that “[t]he State acknowledged there was oil

on the floor and even agreed to that position after Joe Brooks’ testimony was

revisited. Captain Joe Brooks’ testimony of oil on the floor and the engine

condition is enough for Liability alone on unseaworthiness.” We disagree. The

presence of oil does not satisfy the legal standard for demonstrating Jones Act

negligence as set forth above. The possibility that Ms. Thibodeaux caused the
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dangerous condition, as argued by the State, presents the issue of whether Ms.

Thibodeaux was responsible, in whole or in part, for her injuries. Therefore,

summary judgment is inappropriate.

CONCLUSION

Because the State assumed there was a leakage only for the purposes of their

own motion for summary judgment, not for that of the Plaintiff, we reverse the trial

court’s grant of partial summary judgment on the issue of liability. The costs of

this appeal are assessed equally between Plaintiff/Appellee, Wendy Thibodeaux,

and Defendant/Appellant, State of Louisiana, through the Department of

Transportation and Development.

AFFIRMED IN PART AND REVERSED IN PART.

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