Irvin v. United States Military Sealift Command ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 6, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30657
Summary Calendar
DONALD IRVIN,
Plaintiff-Appellant,
versus
UNITED STATES MILITARY SEALIFT COMMAND;
AMERICAN OVERSEAS MARINE CORPORATION,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CV-2634-C
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Donald Irvin appeals the summary judgment dismissal of
his Longshore and Harbor Worker’s Compensation Act (LHWCA) and
Public Vessels Act (PVA) claims. Affording his arguments de novo
review, we affirm. E.g., Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 912 (5th Cir. 1992).
We reject Irvin’s contention that summary judgment was
improper because genuine issues of material fact exist regarding
*
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that this opinion should not be published and is not precedent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.
No. 03-30657
-2-
whether the grease was an “open and obvious” hazard and,
therefore, whether the United States Military Sealift Command
(“United States”) breached its “turnover duty.” In general,
the defendant has not breached its turnover duty if the injury-
causing defect was “open and obvious and one that the
longshoreman should have seen.” See Pimental v. LTD Canadian
Pac. Bulk, 965 F.2d 13, 16 (5th Cir. 1992). It is indisputable
from Irvin’s own testimony that the grease was distinguishable
from the hatch cover/ledge, despite the fact that both were
varying shades of grey. Moreover, although Irvin testified that
he did not see any grease on the hatch cover or ledge, he also
conceded that when he stepped onto the ledge, he was not looking
where he was going. Consequently, he has not shown that a
genuine issue of material fact exists regarding whether the
defect was “open and obvious.”
Irvin’s argument that the United States breached its “active
control duty” fails to assign error to the district court’s
determination that even if the requisite area was under the
requisite control of the vessel owner, as a matter of law the
vessel owner did not breach its active control duty because it
exercised due care by providing Irvin with a safe, alternate
path via the portable steps. He therefore waived its review.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Finally, the United States had no duty to intervene.
See Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156,
No. 03-30657
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175-76 (1981). Even if it is assumed arguendo that the vessel’s
crew had actual knowledge that grease was emanating from the
vessel’s crane, Handlin Marine, Inc.’s, employees had routinely
removed the grease themselves without incident; consequently, it
cannot be said that the vessel owner had actual knowledge that
the defect posed an unreasonable risk of harm or that it could
not rely on Handlin Marine’s employees to remedy the defect.
See Greenwood v. Societe Francaise De, 111 F.3d 1239, 1248
(5th Cir. 1997).
AFFIRMED.