Fifth Circuit Rejects Implication of Vessel Owner’s “Turnover Duty” Where Hazard Was Open and Obvious in LHWCA Case

In re Ecoserv, LLC, 2021 U.S. Dist. LEXIS 570, 2021 WL 26953 (La. App. 5 Cir.  01/04/21), Plaintiff-in-Limitation, Ecoserv, filed a Motion for Summary Judgement, seeking exoneration from liability for negligence under the Longshore and Harbor Workers’ Compensation Act (LHWCA).

Re Ecoserve – Background

Claimant, Amos Ambrose, was employed by a third-party employer, when he sustained injuries related to poor ventilation while working inside of a barge owned by Ecoserv. Mr. Ambrose subsequently brought suit against Ecoserv, asserting that Ecoserv had a duty to warn Mr. Ambrose of poor ventilation in the areas requiring repairs. Additionally, Mr. Ambrose argued that had he been warned of the dangers, he could have worn his own protective gear and minimized his risk of injury.

The Court’s Ruling

In reviewing Ecoserv’s motion, the Court held that the granting of a motion for summary judgment was based on the absence of a genuine issue of material fact. It further defined a genuine issue of material fact as a matter “where the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” With respect to the non-moving party’s burden, the Court asserted that it was not satisfied simply by doubt, but by “conclusory allegations, unsubstantiated assertions, or a scintilla of evidence.”

The Court then applied § 905(b) of the Longshore and Harbor Workers’ Compensation Act in determining Mr. Ambrose’s right to sue Ecoserv as the vessel owner, and agreed that Ecoserv did have a “turnover duty” to exercise ordinary care while turning its vessel and equipment over for stevedoring operations. This included warning the stevedore of hidden or latent dangers, but did not extend to those dangers that were open or reasonably anticipated. The exception however, provided that the longshoreman must not be forced to chose between the hazard and leaving his job.

The Court found that the structure of the vessel itself displayed an open and obvious hazard. Additionally, per Mr. Ambrose’s description of the vessel having only one hole in and out of the area in which he was performing work, he acknowledged the presence of the hazard. Mr. Ambrose’s suggestion that he would have worn his own protective gear had he been warned of the poor ventilation, further led the Court to believe that this option did not place Mr. Ambrose in the predicament of a “Hobson’s choice” of endangering himself or forfeiting work. Based on Mr. Ambrose’s knowledge, and the expectation that he too would act with reasonable care as an expert stevedore, the Court found that Ecoserv’s turnover duty was not implicated, further granting its motion for summary judgment.