Judge chamber with gavel

Shipyard Defendant Granted Partial Summary Judgment on Plaintiff’s Non-Employee Exposure Claims

United States District Court for the Eastern District of Louisiana

From 1972 to 1975, plaintiff Frank P. Ragusa Jr. operated a cherry picker at Avondale Shipyards as an employee of Huntington Ingalls, Inc. He then worked at Avondale for a second stint in the late 1980s as a Pauline Management (JP & Sons) employee. The plaintiff received a mesothelioma diagnosis and filed suit in July 2021, alleging asbestos exposure from the friction materials present inside the cranes he operated in 1989.

Avondale Shipyards moved for summary judgment as to the plaintiff’s claims regarding strict liability for his 1989 asbestos exposure. Avondale contended it could not be held strictly liable as a premises owner under Louisiana Civil Code 2322. According to the code, “The owner of a building is answerable for the damages occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.” In addition, Article 2317 provided strict liability for items in a building owner’s custody. To establish strict liability, a plaintiff must prove that “(1) the thing which caused the damage was in the care, custody and control of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm; and (3) the injuries were caused by this defect.” Ragusa v. Louisiana Guar. Ins. Ass’n, 2023 U.S. Dist. LEXIS 48227 at *4; citing Migliori v. Willows Apartments, 727 So.2d 1258, 1260 (La. App. 4 Cir. 1999). Crucially, a non-owner defendant is still determined to have custody over something “if they exercise direction and control of the thing or derive some benefit from it.”  Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 565 (5th Cir. 2003).

Moreover, “[i]n strict liability determination, ‘defect’ is an imperfection or deficiency which inheres with relative permanence in a thing as one of its qualities.” Haydel v. Hercules Transport Inc., 94-0016, 654 So.2d 408, 415 (La. App. 1 Cir. 1995). As such, a temporary condition does not constitute a defect.

Avondale argued that it could not be held liable under Article 2322 because none of the asbestos allegedly causing the plaintiff’s exposure came from its buildings. Subsequently, the plaintiff could not establish that Avondale had the right of supervision, direction, and control, or the right to benefit from the asbestos-containing products. However, the plaintiff attempted to establish that Avondale directed his crane work instead of his employer J.P. & Sons. Nevertheless, the court was unpersuaded. It determined there was no contention that Avondale specifically required J.P. & Sons to utilize asbestos in their cranes, and granted summary judgment as to the plaintiff’s strict liability claims.

Avondale also argued it could not be held vicariously liable for the plaintiff’s exposure because it had not been his employer and thus was protected by the independent contractor defense. This defense states, “A principal is generally not liable for the offenses committed by an independent contractor while performing its contractual duties.” Sandbom v. BASF Wynadotte, 674 So.2d 349, 353 (La. App. 1st Cir. 1996). However, the court recognized that the independent contractor defense is an affirmative defense. Avondale was unable to meet its burden of proof in establishing this defense because it was unable to produce sufficient evidence to establish J.P. & Son as an independent contractor. As a result, the court denied Avondale’s motion for summary judgment as to vicarious liability.

The plaintiff also alleged direct liability against Avondale as a premises owner. Avondale reiterated it was not responsible for any of the asbestos to which plaintiff had exposure during his employment. The court determined it was undisputed that the source of any exposure was J.P. & Son’s cranes. Thus, regardless of the level at which Avondale directed the operation of said cranes, there was still no evidence that it directed the use of asbestos within them. Accordingly, the court granted Avondale’s motion for summary judgment concerning direct liability.

Finally, the plaintiff asserted intentional tort and punitive damages claims against Avondale for his non-employee 1989 exposure. The court found the plaintiff had to prove that Avondale either consciously desired that he contract mesothelioma or knew that this result was substantially certain to follow from its conduct. It held it was not sufficient for the plaintiff “to show that Avondale had knowledge that its practices were dangerous and created a high probability that someone would eventually be injured.” As such, the plaintiff could proffer no evidence that Avondale intended for him to contract mesothelioma and, thus, granted Avondale’s motion as to intentional torts.

Read the full decision here.