Rhodes v. Genesis Marine, LLC of Delaware et al, No. 2:2018cv00746 - Document 110 (E.D. La. 2019)

Court Description: ORDER AND REASONS denying 43 Motion for Summary Judgment. Signed by Judge Susie Morgan on 7/15/2019. (sbs)
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Rhodes v. Genesis Marine, LLC of Delaware et al Doc. 110 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A KEVIN J . RH OD ES, Plain tiff CIVIL ACTION VERSU S N O. 18 -74 6 GEN ESIS MARIN E, LLC OF D ELAW ARE, ET AL., D e fe n d an ts SECTION : “E” ( 2 ) ORD ER AN D REAS ON S Before the Court is a m otion for sum m ary judgm ent filed by Defendant Genesis Marine, LLC of Delaware (“Genesis”). 1 Plaintiff Kevin Rhodes opposes the m otion. 2 Defendant Bollinger Shipyards, LLC (“Bollinger”) also opposes the m otion. 3 Genesis filed a reply. 4 For the reasons that follow, the m otion for sum m ary judgm ent is D EN IED . BACKGROU N D 5 This is a m aritim e personal-injury case. Plaintiff Kevin Rhodes alleges he was injured on J une 23, 20 17 while working as a m arine electrician for his em ployer, Com plete Marine Services, LLP (“Com plete Marine”), aboard the Genesis Barge 1110 3, which was owned by Defendant Genesis. 6 At the tim e of the alleged incident, the Genesis Barge 1110 3 was undergoing repairs perform ed by Defendant Bollinger at Bollinger’s dry dock facility in Am elia, Louisiana. 7 As part of the repair work, Genesis contracted with Com plete Marine to install electrical system s related to a new ballast water treatm ent system . 8 1 R. Doc. 43. R. Doc. 52. 3 R. Doc. 51. 4 R. Doc. 57. 5 The facts herein are stated as alleged by Plaintiff. R. Doc. 1. 6 R. Doc. 1. at ¶ III. 7 Id. 8 Id. 2 1 Dockets.Justia.com Because the ballast water treatm ent system was to be installed below the deck of the barge, to perform his work Plaintiff had to access the bilge and descend a ladder to access the lower level of the barge. 9 “In order to access and descend the ladder, Plaintiff had to rem ove a grated opening to enter the bilge of the barge. The opening consisted of a cut-off piece of the grating.”10 To go through the opening, Plaintiff had to place the piece of grating that had been cut off (hereinafter the “hatch cover”) on the deck near the hatch opening. 11 Plaintiff could then descend the ladder. Once he cleared the entrance, he had to replace the hatch cover back over the access hole. 12 On the date of the incident, as Plaintiff attem pted to replace the hatch cover, “it got snagged on welding lead cables that were laid out across the walkway by em ployees of Defen dant.”13 Plaintiff pushed him self back from the ladder to avoid being struck by the hatch cover. 14 Plaintiff fell off the ladder, sustaining various bodily injuries. 15 Plaintiff subsequently filed this lawsuit alleging negligence causes of action against Genesis and Bollinger. Genesis has m oved for sum m ary judgm ent on the claim s brought by Plaintiff against Genesis. 16 Genesis argues Plaintiff is entitled to recover from Genesis only if Plaintiff can prove Genesis breached at least one of the three duties Genesis owed Plaintiff as the vessel owner/ operator under Scindia Steam N av. Co., Ltd. v. De Los Santos 17: (1) the turn over duty, (2) the active control duty, or (3) the duty to intervene. 18 Genesis 9 Id. Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 R. Doc. 43. 17 451 U.S. 156 (1981). 18 R. Doc. 43-1 at 7. 10 2 argues there are no m aterial facts in dispute and it is entitled to judgm ent as a m atter of law that it did not breach any of these duties owed to Plaintiff. 19 Bollinger opposes this m otion and argues Genesis is not entitled to sum m ary judgm ent because there are m aterial facts in dispute as to whether Genesis breached either or both of the first two Scindia duties owed to Plaintiff. 20 Plaintiff opposes this m otion and argues Genesis is not entitled to sum m ary judgm ent because there are m aterial facts in dispute as to whether Genesis breached any, som e, or all of three of the Scindia duties owed to Plaintiff. 21 SU MMARY J U D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”22 “An issue is m aterial if its resolution could affect the outcom e of the action.”23 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing the eviden ce.”24 All reasonable inferen ces are drawn in favor of the non-m oving party. 25 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 26 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion, and identifying those portions of 19 See id. at 7-13. R. Doc. 51. 21 R. Doc. 52. 22 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 23 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 24 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 25 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 26 Hibernia N at. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citin g Am oco Prod. Co. v. Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 20 3 [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.” To satisfy Rule 56’s burden of production, the m oving party m ust do one of two things: “the m oving party m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “the m oving party m ay dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .” If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 27 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to establish an essential elem ent of the non-m ovant’s claim . 28 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 29 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”30 “[U]nsubstantiated 27 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Bren nan, J ., dissentin g). 29 See id. at 332. 30 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 28 4 assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”31 Rule 56 allows a party to m ove for sum m ary judgm ent on all or part of a claim or defen se. 32 Partial sum m ary judgm ent serves the purpose of “rooting out, narrowing, and focusing the issues for trial.”33 LAW AN D AN ALYSIS Generally, “the prim ary responsibility for the safety of the longshorem en rests upon the stevedore.”34 “Once stevedoring operations have begun, the owner has no duty to supervise or inspect the work and m ust only take care to prevent unreasonable hazards.”35 All parties agree 36 the United States Suprem e Court’s decision in Scindia Steam N avigation Co. v. De Los Santos, outlines the three narrow duties a vessel owner owes to a longshorem an once stevedoring operations com m ence: (1) the turnover duty; (2) the active control duty; and (3) the duty to intervene. 37 I. Tu rn o ve r D u ty The turnover duty establishes the owner’s obligation at the start of the stevedore’s activities. The turnover duty requires the owner to exercise “ordinary care under the 31 Ragas v. Tenn. Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quotin g Skotak v. Tenn eco Resins, Inc., 953 F.2d 90 9, 915– 16 & n.7 (5th Cir. 1992)). 32 F ED . R. CIV. P. 56. 33 See Calpetco 1981 v . Marshall Exploration, Inc., 989 F.2d 140 8, 1415 (5th Cir. 1993). 34 Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir. 1990 ). 35 Landry v . G.C. Constructors, 514 F. App’x 432, 435 (5th Cir. 20 13) (quotin g Lev ene v . Pintail Enters., 943 F.2d 528, 533 (5th Cir.1991)). 36 R. Doc. 43-1 at 6-7; R. Doc. 51 at 3-4; R. Doc. 52 at ¶¶ 9-10 . 37 See How lett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98-99 (1994); Scindia Steam N av. Co. v. De Los Santos, 451 U.S. 156, 166-79 (1981); Kirksey v . Tonghai Mar., 535 F.3d 38 8, 391 (5th Cir. 20 0 8). 5 circum stances to have the ship and its equipm ent 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.”38 At the turnover point, the owner also m ust warn the stevedore of hidden dangers that could not be discovered by the exercise of ordinary care. 39 The owner thus has no obligation to warn the stevedore of dangers “which are either: (1) open and obvious or (2) dangers a reasonably com petent stevedore should anticipate encountering.”40 However, the “open and obvious” exception does not apply if the stevedore’s “only alternatives to facing the hazard are unduly im practicable or tim econsum ing or would force him to leave the job.”41 Genesis argues “[P]laintiff provided no evidence of any kind whatsoever to establish the hatch cover was either a latent or hidden danger” and, although Plaintiff argues the hatch cover was defective because it was unhinged, Plaintiff “provided no eviden ce to dem onstrate the cover needed a hinge or that without a hinge, it was a latent or hidden danger.”42 Genesis further argues the uncontested testim ony confirm s: “There was nothing unusual about the barge’s ladder or hatch cover, and this accident would not have occurred had it not been for Bollinger’s welding leads.”43 Genesis argues the fact nothing was “unusual” is undisputed because Plaintiff “adm itted . . . that the hatch cover at issue was not unusual.”44 In support of its argum ent, Genesis cites to Plaintiff’s deposition wherein Plaintiff testified: Q: Nothing unusual about the grating? 38 Scindia, 451 U.S. at 167. Id.; Kirksey , 535 F.3d at 392; Leven e, 943 F.2d at 533; Theriot v. Bay Drilling Corp., 783 F.2d 527, 535 (5th Cir.1986). 40 Kirksey , 535 F.3d at 392. 41 Moore v. M/ V AN GELA, 353 F.3d 376, 381 (5th Cir. 20 0 3) (citing Scindia, 451 U.S. at 167; Pim ental v. Ltd Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir. 1992)). 42 R. Doc. 57 at 1-2. 43 R. Doc. 43-4 at 2. 44 R. Doc. 43-1 at 10 . 39 6 ... A: No, sir. 45 Genesis cites as support for the fact that the accident “would not have occurred had it not been for Bollinger’s welding leads” Plaintiff’s deposition wherein Plaintiff testified, in relevant part: Q: Okay. Well, was there anything else that it could have gotten caught on in that area? ... A: Nothing to m y knowledge behin d m e, no. Q: Right. And nobody told you after the accident that they knocked the grating them selves? A: No. No, nobody -- At the m om ent while I was going down, there was no one in m y area at the tim e. ... Q: . . . It wasn’t a situation where you actually lost control of it and that’s why it fell, right? A: No, sir. Q: I m ean, this accident would not have occurred if it wasn’t for those welding leads, right? ... A: From what I see, yes, it wouldn’t have occurred. 46 It is Genesis’s burden to provide affirm ative eviden ce that negates the existence of an y hidden danger. It is questionable whether this testim ony is sufficient to do that. 45 46 R. Doc. 43-2 at 18 2:24-183:9. R. Doc. 43-2 at 162:23-165:17. 7 In any event, Bollinger and Plaintiff do not agree it is an undisputed fact that there was no hidden danger. 47 Plaintiff argues the quoted testim ony of the Plaintiff is not com plete with respect to the unusual nature of the hatch cover. Plaintiff also testified: on other barges Plaintiff has worked on, hinged covers are easier to put back into place, barriers are placed around the access hole so the hatch cover is not repeatedly rem oved and replaced, and hatch covers are round, unlike the one at issue. 48 In support of his argum ent, Plaintiff also cites his deposition wherein: (1) Plaintiff agreed “a hatch cover is m ore easy to work if it’s hinged” because “if it’s hinged, it can just flop back into place”49 ; (2) Plaintiff testified that “norm ally on other vessels when you open up an access hole, Bollinger, as well, provides a barrier that you can put over the access hole and leave the cover off, and that way you don't you have to continually replace [it]”50 ; and (3) Plaintiff testified that on other barges Plaintiff “picked up ABS-approved covers off of hatch holes” that were “round.”51 Genesis sim ilarly argues that any hidden danger that existed was open and obvious to Plaintiff. Genesis argues the following fact is undisputed: “Bollin ger’s welding leads, which were strewn everywhere across the deck, and the unhinged hatch cover were both known to him prior to this accident such that these alleged dangers were open and obvious to him .”52 In support of its position, Genesis cites Plaintiff’s deposition wherein Plaintiff testified: Q: . . . [H]ow m any welding leads were there actually spread out?” 47 R. Doc. 51-2 at 2. R. Doc. 52-1 at 2. 49 R. Doc. 52-3 at 125:13-25. 50 Id. at 149:18-150 :1. 51 Id. at 178:14-21. 52 R. Doc. 43-4 at 2. 48 8 A: Sir, I would be guessing. I can’t say. It’s a lot of hot work going on on both sides, so I can’t tell you. ... Q: But they were spread out everywhere in this area? A: Correct. Correct. Q: And I know you testified earlier that, you know, this work had been ongoing, but, I m ean, you noticed these as soon as you walked into that room , right? A: Correct. 53 Genesis also cites as support Plaintiff’s testimony that: Q: Is it fair to say before this accident, right before you opened the grating cover and set it off to the side, you were aware that that grating wasn’t hinged; is that right? A: That’s correct. ... Q: So even at that m om ent just before your accident, you were aware that that hatch cover wasn’t hinged? A: That’s correct. Q: That was obvious to you? A: That’s correct. 54 Bollinger and Plaintiff object to Genesis’s characterization of Plaintiff’s testim ony. 55 Bollinger argues “Plaintiff never testified that ‘Bollinger’s welding leads (which) were strewn everywhere across the deck.”56 Plaintiff argues “[t]his statem ent of fact m ischaracterizes Plaintiff’s deposition testim ony.”57 In support of his position, 53 R. Doc. 43-2 at 160 :10 -161:18. Id. at 18 2:1-15. 55 R. Doc. 51-2 at 2; R. Doc. 52-1 at 2. 56 R. Doc. 51-2 at 2. 57 R. Doc. 52-1 at 2. 54 9 Plaintiff cites his deposition, apparently to show he did not know the hatch cover was unhinged an d the hidden dangers were not open and obvious to him , wherein he testified: Q: Okay. When you m oved the cables or hoses away from the hatch, did you feel that after you m oved them , they constituted a hazard? A: That is not m y position. As far as if it's a hazard, that would be up to Bollinger. I can't guarantee it. It's not m e to call that shot, sir. If they have hazardous leads out, it's not m e to call that shot. 58 Bollinger and Plaintiff respond that, even if the hazard was open and obvious, a genuine dispute of m aterial fact exists as to the im practicability of Plaintiff having to avoid the hazard presented by the hatch cover. 59 Bollinger and Plaintiff argue that because there was no barrier around the hatch open ing, Plaintiff had to rem ove and replace the piece of the grating whenever he descended down the ladder into the bilge and it would be im practical for him to avoid the hazard presented by the hatch cover. 60 In support of this position, Bollinger’s opposition cites to its statem ent of uncontested m aterial fact, 61 which in turn cites Plaintiff’s testim ony and Schenkenberg’s testim ony. Plaintiff testified: Q: Okay. But to enter that part of the com partm ent where you were working and if you were on the other side of that entrance, you would have to step over into the space, and then conceivably your next step could be right where the grating hatch is; is that correct? A: Correct. Q: And because of that, was it always necessary for you to, if you opened the hatch, that is rem oved the hatch cover, to reinstall or replace the hatch, so nobody who’s walking in through that entrance would step into the hole? A: Correct. Q: Okay. So every tim e that you had to go down into that, to use that hatch to get to the bilge, you would first have to pick up the section of grating that was cut to size to fit the hatch opening, and what would you do with it? 58 R. Doc. 52-3 at 143:12-19. R. Doc. 51 at 5-6; R. Doc. 52 at ¶¶ 13-14. 60 See id. 61 R. Doc. 51-2 at 6 (citing to 51-1 at p. 5). 59 10 A: I would have to place it to the side. Like pull it up with both hands, I would pull it up, put it down on the side, get on the ladder, and then pass m y hand underneath like holding a pizza, an d then m aneuver it back on top of m y head. 62 ... Q: All right. On prior days, when you went through the hatch, when you had to enter the hatch an d you had to rem ove the hatch cover, why did you always have to replace it? A: Because when we first started it, we asked the forem an to let us put the barrier, and he told us no, we couldn’t, because we were too close to the door access, as you can see, so he didn’t want us to leave it off. He told us that we couldn’t leave it off. 63 Schenkenberg likewise testified: Q: To get to the area where Mr. Rhodes was going is there an y other way to get there? A: No. 64 ... Q: . . . From the balance water treatm ent system com ponents that are in the bilge to the control panels, it was absolutely necessary for the CMS guys, that’s Rhodes and this guy Chris Em ail to -A: Um -hum Q: -- work down below the grading deck in the bilge area, right? A: Yes. 65 The Court finds there are m aterial facts in dispute with respect to whether Genesis violated the turn over duty and whether the open and obvious exception does not apply because safer alternatives were unduly im practicable or tim e consum ing. The m otion for sum m ary judgm ent filed by Gen esis is denied with respect to this issue. 62 R. Doc. 51-3 at 94:7-95:14. Id. at 122:19-123:8 . 64 R. Doc. 51-5 at 42:2-3. 65 Id. at 72:16-73:10 . 63 11 II. Active Co n tro l D u ty A vessel owner m ay be liable under Scindia's active control duty if it actively involves itself in cargo operations or fails to protect contractors from hazards in areas under the active control of the vessel.”66 To determ ine whether a vessel owner retains active control, courts in the Fifth Circuit “generally consider ‘whether the area in question is within the contractor's work area, whether the work area has been turned over to the contractor, and whether the vessel owner controls the m ethods and operative details of the stevedore's work.’”67 Although not dispositive, the “com plete absence” of vessel em ployees m ay be “evidence of . . . a lack of vessel control.”68 The parties dispute whether Genesis controlled the m ethods and operative details of Plaintiff’s work and, as a result, had active control over the area. Genesis argues the following fact is undisputed: “Genesis personnel, along with Genesis’s ‘com pany m an’ and project m anager, Robert Schenkenberg, did not participate in either Bollinger’s or Com plete Marine’s operations.”69 In support of this position, Genesis cites to the declaration of Robert Schenkenberg, Genesis’s contracted project m anager. Schenkenberg declared: Genesis crewm em bers and I did not participate in Bollinger’s or Com pelete Marine’s operations. In fact, Genesis’s crewm em bers had no involvem ent at all in their operations, nor did I as I was only the project m anager tasked with reporting the progress of the Bollinger’s and Com plete Marine’s work to Genesis. I did not see Genesis’s crewm em bers go near Bollinger’s and Com plete Marine’s operations in the area of Rhodes’s alleged accident, and they typically rem ained in the control room on the m ain deck of barge 1110 3 near m idship.”70 66 Fontenot v. McCalls Boat Rentals, Inc., 227 F. App’x 397, 40 3 (5th Cir. 20 0 7). Hudson v. Schlum berger Tech. Corp., 452 F. App’x 528, 535 (5th Cir. 20 11) (quoting Fontenot v. United States, 89 F.3d 20 5, 20 8 (5th Cir. 1996)). 68 Manson Gulf, L.L.C v . Modern Am erican Recy cling Service, Inc., 878 F.3d 130 , 135 (5th Cir. 20 17) (citing Fontenot, 89 F.3d at 20 8; Burchett v. Cargill, Inc., 48 F.3d 173, 179 (5th Cir. 1995)). 69 R. Doc. 43-4. 70 R. Doc. 43-3 at ¶ 5. 67 12 Bollinger and Plaintiff argue there is eviden ce that Genesis was in active control of the area. 71 In support of his position that Genesis was involved in the operations and, as a result, controlled the area, Plaintiff cites his deposition wherein he testified: Q: Okay. And during those days, did you constantly try to keep aware of your surroundings, m ake sure there was no hazard on the floor or overhead or anything like that that could cause injury to you and/ or Kris? A: Right. Robert m ade it clear to us to keep our cables strapped up at the end of our day when we would leave, that everythin g needs to be out of the way. Q: Okay. And during the day, if you saw a hazard, could you call Robert and say, "Look, we got to rem edy this" or "fix this" or "m ove these welding cables," anything like that? A: Robert I guess would be the one to do that. 72 Plaintiff also cites the deposition of T.C. Hardee, Genesis’s vessel m anager, to show that Genesis Marine hired Robert Schenkenberg to serve as a project m anager and oversee the operations taking place aboard the Genesis Barge 1110 3 and therefore “Genesis Marine m aintained active control of the work being perform ed.”73 Hardee testified: Q: Okay. And who was tasked with overseeing that project? A: For Genesis? Q: Correct. A: Robert Schenkenberg. Q: Okay. And it's your understanding that Robert Schenkenberg would oversee Genesis Marine's interest through this dry docking project, correct? A: Correct. 74 71 R. Doc. 51-2 at 3; R. Doc. 52-1 at 2-3. R. Doc. 52-3 at 76:23-77:12. 73 R. Doc. 52 at ¶¶ 18-19. 74 R. Doc. 52-4 at 10 :8 -11:5. 72 13 Genesis also says its em ployees were not present at the tim e of the accident and as a result Genesis could not have been in control of the area. Genesis argues the following is undisputed: “Only Bollinger personnel were working in the area of plaintiff’s accident, and, therefore, Bollinger (and not Genesis) had active control of the barge.”75 In support of its position, Genesis cites Plaintiff’s deposition wherein Plaintiff testified: Q: Okay. Did you ever com plain to Robert about all these cables laying in these areas that you have shown? A: I asked the forem an, the Bollinger forem an if we could have left the hatch off and put a barrier, because they do do have barriers in that yard they used in the past, and I asked him can we put a barrier there, and he said no, because we’re too close to the access and it would bother the works going back and forth. And I can understand his argum ent, but, you know, we asked for the barrier to be put there. Q: It’s Genesis’ vessel. Did you ever ask Genesis why there wasn’t a barrier there? A: I don’t think Genesis had any control over any of the work. I can’t guarantee that, but I don’t know what Genesis’ part was on that barge at the tim e. 76 Plaintiff also testified: Q: All right. Earlier, I think you testified Bollinger was in control of this area? ... A: Bollinger had hot work going on, correct. Q: Bollinger was the entity with the personnel that was com pleting the operations in the area with you, right? ... A: That’s correct. Q: Were there any Gen esis personnel working in this area? A: I would see them at tim es com e down there, but I'm not sure what they would have been doing, and then I would see them on top of the barge, as well. I'm not quite sure what Genesis was doing. 75 76 R. Doc. 43-4 at 2. R. Doc. 43-2 at 10 4:23-10 5:15. 14 ... Q: Were there any Gen esis personnel com pleting operations in this area? ... A: In m y area that we were working, no. Q: And no one from Genesis was actually present when your accident occurred, right? A: Not down there, no. 77 It is Genesis’s burden to subm it affirm ative eviden ce that n egates that Genesis em ployees were in the work area, and as a result, that Genesis lacked control of the work area. The cited testim ony does not accom plish that fact. Plaintiff’s asking a Bollinger forem an, rather than Genesis personnel, about the barrier does not necessarily establish that Genesis had no em ployees present in the work area. Further, there is testim ony that Plaintiff saw Genesis em ployees working in his work area from tim e to tim e. Sim ilarly, Genesis argues the following is undisputed: (1) “Genesis’s crewm em bers rem ain ed in the barge control room located on a com pletely differen t deck level and did not go near the area where Bollinger and plaintiff were working”; and (2) “[n]o Genesis personnel were present at the tim e of plaintiff’s accident.”78 Genesis cites in support Plaintiff’s deposition wherein he testified: Q: And no one from Genesis was actually present when your accident occurred, right? A: Not down there, no. 79 77 Id. at 183:10 -184:22. R. Doc. 43-4 at 3. 79 R. Doc. 43-2 at 44-45. 78 15 Plaintiff argues the statem ent by Genesis that no Genesis em ployees were present is “unsupported by evidence put forth by Genesis Marine.”80 Bollinger and Plaintiff state in their respective responses to Genesis’s statem ent of uncontested m aterial facts that they do not know whether Genesis personnel were present at the tim e of Plaintiff’s incident. 81 Bollinger and Plaintiff argue that Genesis hired Schenkenberg to be its project m anager on the barge and that Plaintiff’s testim ony establishes Schenkenberg was present in Plaintiff’s work area throughout the course of the project. 82 In its reply, Genesis argues it “did not have any em ployees working in the area of plaintiff’s incident” because Schenkenberg “was not a Genesis em ployee” but rather “a project m anager em ployed by, and received his paycheck directly from , Staton Marine Services, Inc.”83 Genesis attached to its reply the m aster service agreem ent 84 between Genesis an d Staton Marine Services, Inc. (“Staton”), labeling Staton as an “in dependent contractor.”85 The status of Schenkenberg, and whether his presen ce am ounted to the presen ce of Genesis, rem ains in dispute. Even assum ing no Genesis em ployee was in the work area, this does not conclusively establish there is no genuine dispute of m aterial fact as to whether Gen esis breached its active control duty. The absence of vessel em ployees in a work area is not alone dispositive on this question. 86 The Court finds that m aterial facts are in dispute as to whether Genesis m aintained active control of the area where Plaintiff’s accident occurred. The m otion for sum m ary 80 R. Doc. 52-1 at 3. Doc. 51-2 at 3; R. Doc. 51-2 at 3. 82 R. Doc. 51 at 7-8; R. Doc. 52 at ¶¶ 18-19. 83 R. Doc. 57 at 2-3. 84 R. Doc. 57-3. 85 Id. at 4. 86 See Fontenot, 89 F.3d at 20 8. 81 R. 16 judgm ent filed by Gen esis is denied with respect to whether Genesis m aintained active control of the area. III. D u ty to In te rve n e The duty to intervene provides that a vessel owner m ay be liable if it fails to intervene when (1) it has actual knowledge of an unreasonably dangerous condition that has developed during the course of the stevedoring operations and (2) it knows that the stevedore, in the exercise of obviously im provident judgm ent, intends to continue working in the face of the danger and cannot be relied upon to protect its workers. 87 “There is a distinction between knowledge of a condition and knowledge of the dangerousness of that condition.”88 “Knowledge that a condition or even a defect exists, does not im ply knowledge that the condition is dangerous.”89 A vessel owner is generally perm itted to rely on the stevedore’s expert judgm ent as to the safety of its working conditions 90 and “is en titled to rely on the stevedore’s judgm ent that the condition, though dangerous, was safe enough.”91 Genesis and Plaintiff 92 dispute whether Genesis had knowledge of the hazard presented by the hatch cover. Genesis argues the following facts are undisputed: “Plaintiff did not com plain to anyone at Genesis about the welding leads and did not ask anyone at 87 Fontenot, 227 F. App'x at 40 2-0 3; see also Clay , 74 F.Supp.2d at 673. Id. 89 Casaceli v. Martech Intern . Inc., 774 F.2d 1322, 1330 (5th Cir. 1985); see Fonten ot, 227 F. App’x 397 at *6 (finding no duty to intervene when vessel owner did not know or believe that a trash bag blockin g a walkway created an unreasonable risk of harm , regardless of whether vessel owner was aware of the obstruction); W oods v. Sam m isa Co., 837 F.2d 8 42, 8 53 (5th Cir. 1989) (finding no duty to intervene when vessel owners were aware that a condition existed but were unaware that the condition posed an unreasonable risk of harm ); Pledger v. Phil Guilbreau Offshore, Inc., 8 8 F. App’x 690 , 692 (5th Cir. 20 0 4) (finding no duty to interven e when neither stevedore n or shipown er thought the algae on the deck created an unreasonable risk of harm ); see also Futo v. Ly kes Bros. Steam ship Co., 742 F.2d 20 9 (5th Cir. 198 4). 90 Greenw ood v Societe Fran caise De, 111 F.3d 1239, 1249 (5th Cir. 1997). 91 Randolph, 896 F.2d at 971 (citing H elaire v. Mobil Oil Co., 70 9 F.2d 10 31, 10 39 n 12 (5th Cir. 1983); Scindia, 451 U.S. at 180 ). 92 Bollinger only argues Genesis breached its first and second Scindia duties. R. Doc. 51. 88 17 Genesis for help in doing his job”93 and “[n]either Genesis nor Robert Schenkenberg were ever m ade aware of the presence of any welding leads.”94 In support of its position, Genesis cites Plaintiff’s deposition wherein Plaintiff testified: Q: And no one from Genesis was actually present when your accident occurred, right? A: Not down there, no. ... Q: You couldn’t see anybody else from Genesis in the area? A: Not that I could see, no. ... Q: All right. You don’t have any knowledge about whether or not anyone at Genesis knew whether the welding leads were draped over the grating, do you? A: I can’t answer that, sir. I have no knowledge. Q: You never com plained to anybody at Genesis about the welding leads? A: No. Q: You never reported to anyone at Genesis that there were these welding leads that Bollinger left there? ... A: I think Robert m ight have told them at tim es in m y area. Q: Did you ever tell anybody at Genesis that there were welding leads in the area? A: I never did. Q: All right. You said you think Robert knew that, right? A: I seen Robert cam e down there and had discussions before with the Bollinger people about housekeeping. 93 94 R. Doc. 43-4 at 3. Id. 18 Q: “Housekeeping.” But you don’t know whether or not Robert actually had knowledge that the welding leads were draped over the grating? A: I would have to say he did, because he was down there the sam e day that I did get hurt and he could see it. Q: Did he ever tell you that he knew that? A: No. I’m just saying that— Q: You’re just saying you saw him in the area, so, therefore, you’re assum ing that he saw what he saw? A: Correct. He’s seeing what I’m seeing I’m sure. 95 Plaintiff also testified: Q: Okay. Do you know of any reason why he wouldn’t be able to observe the hoses that we see in the photograph that your co-worker took? A: No, I can’t answer for him , but I m ean, he’s seeing the sam e thing I’m seeing. 96 Genesis also cites as support the declaration of Schenkenberg. Schenkenberg declared: I never observed Bollinger’s welding leads before Rhodes’s alleged accident, nor did anyone from Com plete Marine or Bollinger report their presence to m e. Genesis’s crewm em bers also did not report the presen ce of the welding leads, nor could they as they were not working in the area of Rhodes’s alleged accident, which was not near the barge control room where they worked. Rhodes n ever asked m y assistance in asking Bollinger to m ove the leads and never com plained to m e about the welding leads[.] 97 It is Genesis’s burden to subm it affirm ative eviden ce that Gen esis had no actual knowledge of an unreasonably dangerous condition. The cited testim ony does not accom plish this goal. Instead, the cited testim ony of Plaintiff indicates Genesis’s project m anager, Schenkenberg, m ay have been aware of the dangerous condition because Schenkenberg was present in the work area from tim e to tim e. 95 R. Doc. 43-2 at 184:24-185:7; 185:18-188 :1. Id. at 217:4-8 . 97 R. Doc. 43-3 at ¶ 7. 96 19 In any event, Plaintiff argues there are facts in dispute with respect to whether Genesis had a duty to intervene. Plaintiff argues Genesis and Schen kenberg were aware of the presence of the welding leads because “Schenkenberg, acting on behalf of Genesis Marine, would perform walk-arounds on the barge periodically throughout the day.”98 In support, Plaintiff cites his own testim ony that Schenkenberg “did walk-arounds periodically throughout the day.”99 Plaintiff argues Genesis’s knowledge of the condition m ay be inferred from the fact that Schenkenberg, Genesis’s project m anager, was aware of the hatch cover because he was in the work area periodically throughout the day and had “interven ed to m ake sure the Com plete Marine Services crew knew to properly store and put away their cables [and] [t]herefore, he should have known that the Bollinger crew would require the sam e direction and supervision.”10 0 In support, Plaintiff references his own deposition wherein he testified that Schenkenberg “did walk-arounds periodically throughout the day” and that in regards to the Com plete Marin e workers, “Robert m ade it clear to us to keep our cables strapped up at the end of our day when we would leave.”10 1 The Court finds, Genesis has failed to m eet its burden to show there is no genuine dispute as to any m aterial fact as to whether there Genesis had actual knowledge of unreasonable dangers and, as a result, had a duty to intervene. The m otion for sum m ary judgm ent filed by Genesis is denied with respect to whether Genesis had actual knowledge of the hazard. 98 R. Doc. 52-1 at 3. R. Doc. 52-3 at 10 7:18-23. 10 0 R. Doc. 52 at ¶ 21. 10 1 R. Doc. 52-3 at 9-10 , 18. 99 20 CON CLU SION For the foregoing reasons, IT IS ORD ERED that the m otion for sum m ary judgm ent filed by Gen esis 10 2 is D EN IED . N e w Orle a n s , Lo u is ian a, th is 15th d ay o f Ju ly, 2 0 19 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 10 2 R. Doc. 43. 21