     Case: 16-20091      Document: 00513619106         Page: 1    Date Filed: 08/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                      No. 16-20091
                                                                                 Fifth Circuit

                                                                               FILED
                                                                          August 2, 2016

LARRY KITCHENS,                                                           Lyle W. Cayce
                                                                               Clerk
              Plaintiff – Appellant,

v.

STOLT TANKERS B. V.; STOLT FOCUS B. V.,

              Defendants – Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-2088


Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM:*
       In this case arising under the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), the district court granted summary judgment
in favor of Defendants-Appellees and dismissed Plaintiff-Appellant’s claims in
their entirety. We affirm.
                     I. FACTS & PROCEDURAL HISTORY
       Plaintiff-Appellant Larry Kitchens is an experienced harbor worker and
resident of Harris County, Texas. In 2014, Kitchens was employed as an


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-20091
Operations Supervisor for Westway Terminal (“the terminal”) in Houston,
Texas, where he supervised various activities involving cargo operations
between vessels and the terminal. At times, Kitchens’ duties as supervisor
required him to board vessels that were docked in the terminal. Defendants-
Appellees Stolt Tankers, B.V. and Stolt Focus, B.V., (collectively, “Stolt”), own
and operate the M/V Stolt Focus (“the Vessel”). On April 17, 2014, Stolt was
conducting cargo operations at the terminal. The record reflects that the cargo
being unloaded by Stolt contained a liquid referred to as “fatty alcohol” or “veg
oil.” At some point during the night, Kitchens determined that the cargo was
being unloaded, or “pumped,” too slowly off of the Vessel. Consequently, at
approximately 1:00 a.m., Kitchens boarded the Vessel to address the slow
pumping rate. When he boarded the Vessel, Kitchens was accompanied by his
co-worker, Zach Curtis, and a crewmember of the ship. According to the record,
after boarding the Vessel, Kitchens advanced along the main deck and upstairs
to the Cargo Control Room without incident. After approximately ten minutes
passed, Kitchens exited the control room and descended the stairs along the
same path he had taken when he boarded the ship. According to Kitchens,
when he stepped off of the stairs to the main deck, he took a couple of steps
and then slipped and fell, enduring substantial injuries. He remained there
for about a minute and then left the Vessel without assistance.         Neither
Kitchens nor any of the witnesses to the accident reported observing any type
of foreign substance on the part of the deck where Kitchens fell. The record
reflects that, after the accident, Kitchens failed to submit a company-mandated
accident report and also waived his right to file a claim for compensation and
benefits under the LHWCA.
      On May 23, 2014, Kitchens filed suit in state court against Stolt alleging
negligence claims under the LHWCA. See 33 U.S.C. § 905(b). Stolt removed to
federal district court pursuant to 28 U.S.C. § 1333 and moved for summary
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                                    No. 16-20091
judgment. The district court granted summary judgment in favor of Stolt and
dismissed Kitchens’ claims. In its reasons for judgment, the district court
concluded that Kitchens failed to prove that Stolt breached its “active control”
and “turnover” duties under § 905(b) of the Act. See 33 U.S.C. § 905(b); see also
Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 166–67 (1981).
      Kitchens filed this appeal.
                         II. STANDARD OF REVIEW
      We conduct a de novo review of a district court’s grant or denial of
summary judgment, applying the same standard as the district court.
Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir. 2007) (citation
omitted). Summary judgment is appropriate if the record evidence shows that
there is no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law. Id. at 366; Fed. R. Civ. P. 56(a).
“Unsubstantiated      assertions,   improbable     inferences,    and   unsupported
speculation are not sufficient to defeat a motion for summary judgment.” See
Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003) (citation omitted).
“[R]easonable inferences are to be drawn in favor of the non-moving party.”
Robinson, 505 F.3d at 366 (citation omitted).
                              III. DISCUSSION
      Kitchens’ sole argument on appeal is that the district court erred in
dismissing his “active control” claim. 1 See Scindia, 451 U.S. at 167. Kitchens
contends that the Vessel’s walkway where he was injured was dimly lit and
extremely slick. He submits that dangerous walkways of this sort are precisely
the type of physical condition contemplated by Scindia as giving rise to a
Section 905(b) claim. Kitchens concludes that he fell “because of accumulation



      1 Kitchens does not appeal the district court’s dismissal of his claim that Stolt
breached its “turnover” duty under 33 U.S.C. § 905(b).
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                                  No. 16-20091
of veg oil or other foreign substances on the walkway, the presence of water on
the walkway that was not the result of dew or rain, the lack of a nonskid on
the walkway, or some combination of these factors.”
        Both parties agree that the LHWCA applies and provides Kitchens’
exclusive remedy against Stolt. Section 905(b) of the Act permits a covered
maritime worker to recover damages for personal injury caused by the
negligence of a vessel. See 33 U.S.C. § 905(b). In Scindia, the Supreme Court
articulated the scope of a vessel’s duty under the Act, the underlying principle
being “that the primary responsibility for the safety of the longshoremen rests
upon the stevedore.” See Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13,
15 (5th Cir. 1992) (citation omitted); see also Scindia, 451 U.S. at 166–67.
However, as this court has acknowledged, “[i]t is now well accepted that
shipowners owe three narrow duties to longshoremen: (1) a turnover duty, (2)
a duty to exercise reasonable care in the areas of the ship under the active
control of the vessel, and (3) a duty to intervene.” Kirksey v. Tonghai Maritime,
535 F.3d 388, 391 (5th Cir. 2008).
        Under the active control duty, “[t]he vessel has a duty to ‘exercise due
care to avoid exposing longshoremen to harm from hazards they may encounter
in areas, or from equipment, under the active control of the vessel during the
stevedoring operation.’” Pimental, 965 F.2d at 16 (quoting Scindia, 451 U.S.
at 167). Liability under the active control duty “is not relieved when the hazard
is open and obvious.”      Id. (citation omitted); see also Romero v. Cajun
Stabilizing Boats, Inc., 307 F. App’x 849, 851 (5th Cir. 2009) (per curiam)
(unpublished) (citation omitted). Neither party disputes that Stolt maintained
exclusive control over the area of the Vessel where Kitchens’ fall occurred and,
consequently, that the active control duty exception could potentially apply
here.


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                                       No. 16-20091
       As the district court correctly noted, liability under the active control
duty is premised on the presence or existence of a “hazard” under the active
control of the vessel. Pimental, 965 F.2d at 16. The record reflects that neither
Kitchens nor any of the eye witnesses to the incident observed any type of
foreign substance—open, obvious, or otherwise—on the area where Kitchens
slipped, before or after the accident. Moreover, subsequent to his fall, Kitchens
was unable to gather any direct or circumstantial evidence that there was a
hazard on the walkway where he slipped. There was no evidence submitted
that any of Stolt’s cargo leaked, dripped, or spilled at any time prior to the
incident, or that any person tracked any type of slippery substance onto the
walkway of the Vessel. Kitchens conceded that it had not rained the night of
the incident. Only one witness to the incident observed naturally-occurring
moisture due to humidity on the deck. 2 None of the witnesses observed any
foreign substances on the deck. 3 Although Kitchens points to the lack of a non-
skid surface on the walkway where he fell, this court has not held that the lack
of a non-skid surface alone is sufficient to give rise to a finding of liability under
the active control duty exception. 4 In addition, this court has not held, in the
absence of an agreement to the contrary, that the vessel has a general duty to
provide adequate lighting for longshoremen. See Dow v. Oldendorff Carriers




       2  Kitchens does not argue that the presence of naturally occurring moisture on a vessel
is sufficient to give rise to a finding of liability under the active control duty exception.
        3 The record reflects that Kitchens’ co-worker, Zach Curtis, originally signed an

affidavit prepared by Kitchens’ attorney that there was something other than dew from
humidity on the part of the deck where Kitchens fell. However, Curtis later recanted that
affidavit, clarifying that he did not know if any substance was present on the deck where
Kitchens fell.
        4 Kitchens avers that the fact that he was wearing Red Wing work boots with slip-

resistant soles designed to maintain traction is somehow probative of the notion that the
walkway was slick and unreasonably dangerous. This statement, however, is nothing more
than unsupported speculation and thus insufficient to defeat summary judgment. See Brown,
337 F.3d at 541 (citation omitted).
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                                       No. 16-20091
GMBH & Co., 387 F. App’x 504, 507 (5th Cir. 2010) (per curiam) (unpublished)
(citation omitted).
       In light of his failure to produce any evidence of a hazard on the
walkway, 5 Kitchens’ conclusion that he slipped “because of accumulation of veg
oil or other foreign substances on the walkway, the presence of water on the
walkway that was not the result of dew or rain, the lack of a nonskid on the
walkway, or some combination of these factors” is nothing more than
unsupported speculation and therefore insufficient to defeat a motion for
summary judgment. See Brown, 337 F.3d at 541 (citation omitted)
(“Unsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment.”).
       For these reasons, we conclude that the district court did not err in
concluding that Kitchens failed to show that there was a genuine issue of
material fact with respect to his active control claim, thereby entitling Stolt to
summary judgment as a matter of law. Robinson, 505 F.3d at 366.
                                  IV. CONCLUSION
       For the aforementioned reasons, we affirm the district court’s summary
judgment.




       5 Kitchen submits in his brief that the district court misapplied the law because it is
well-settled in this circuit that an open and obvious hazard does not work as an absolute bar
to a harbor worker’s active control claim. However, in light of our conclusion that Kitchens
has failed to produce evidence of any hazard, we do not reach the issue of whether such
hazard was open or obvious. Pimental, 965 F.2d at 16 (citing Romero, 307 F. App’x 851) (per
curiam) (unpublished) (citation omitted).
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