before he fell through it the question before this court is is the longshoreman's duty to find a hole that may or may not be there and may or may not be marked greater than the duty of the vessel owner who made the hole in the first place knew the hole was there and knew it presented a hazard to you that holds in and of themselves are inherently dangerous this is recognized by the fact that osha our congress has an act of laws requiring that they be m covered no she doesn't apply to this case but that's important to note because polls are not easily seen the background on this case miss for the clue or j j work for sure they were scrapyard kind of had a funny relationship where he was a a jack of all trades for the owner he was involved in an automobile accident not related to this a few years ago before the accident he was put back to work and they gave him this title of independent contractor at the deposition of mr cat and his boss it was clear he had been persuaded by his counsel perhaps to call mr the floor and inspector came out later in his testimony that mr fuller was not an inspector the inspector for this type of project would have been rigged foreman that was mr smith who was walking next door to mr floor at the time of the fall that's important because of the the city your duties and the arguments that missile of floor should have been out there looking for these holes while he was up there on the ri mr floor goes back to work he is doing odd jobs around the the scrap yard mr smith who is the rigging foreman goes up to this rig when it's first pulled into the yard and he encounters an oil problem in fact he been warned by manson that there might be no problem up there he calls over the radio and mis floor just in response to hearing this on the radio goes up and sees if you can help out both men's attention is directed to the oil issue that which is potentially very hazard scrapping crew to the welders in the cutters are going to be up there that's the focus of their attention and rightfully so so as they're walking along this pipe form there are these holes that have been cut in the floor of the platform to allow for the rigging to be chained to the the four pilings that held up this particular platform and if i didn't say so before the course now familiar this is a platform sitting on top of a board so they're up there there their attention is addressed to the all issue there's a pipe which they testified about seven feet above jay jay's six foot frame there's a skid that they're walking around and there's this hole which all the testimony indicates is about of his biggest two legal pages put together maybe slightly larger than that mr cat and something directly in his line of sight and above his head but has the potential oil issue in it and he steps through this hole and evolves the testimony from smith is that he never saw the hole before and that the whole could not be seen from four feet five feet or eight feet away and smith volunteered on my examination it looks like a solid floor so later there some testimony that smith in hindsight says well you could see it when you were on top of it and i would have stepped in it because i would have watch where put my feet well that is what the trial court seized upon that testimony not the testimony that they didn't expect polls to be up there that if there were going to be holes up there they would be marked or covered not that they were focusing on all issues not that you you couldn't see the hole from four six or eight feet away not that it looked like solid floor not that it was only the size of two legal pages put together but the fact that smith says i wouldn't step in it because i would have put watch where my a put my feet which of course is purely speculative it had its pure speculation and while it might have some value to the court later in trial as to what was going on up there it's they they it was a hazardous condition which we argue it was and that they failed to warn morse and mist of floor about his presence in the war yes that's what you have contract that allows for the the rig to be transported there and then for them to begin cutting it up and there's some terms of payment but there's no official sign over control and and the the way it gets fuzzy is the fact that manson is out there to begin with they have their inspector their inspector inserts himself into the process of scrapping by telling them hey you've got this all issue up there so these men go up there to address that very potentially dangerous situation but manson doesn't tell them the simplest thing are around is hey we cut holes and we didn't markham which we know is commonly done do you get to go back to the district court if there's a fact issue an open an obvious or do you have to show something more than that to go back to the district court i think if if i think if it's if this court filings that it was not open and obvious that we should be able to go back to the district will find a fact issue on an open obviously new guy to magically get to go back to the district court there's not  just because it is even if it was openness obvious if he had if mr the floor had the obligation to find this hole that he wasn't the inspector for that he was inspecting for something else th those are the two things that you need correct and you think you have  think even manson would agree that there is a duty to warn if it is not open in obvious that i think their counsel is going to stand up here and say if this was an open and this was open and obvious and therefore we did not have to warn about it if it was an open and obvious thing yeah we had to warn about it because it's an obvious dangerous hazardous condition i think everyone would agree a hole in a platform sixty feet in the air is a dangerous condition and  the testimony even from their own witnesses has established that we mark these holes for our people but when we return in the rig over someone else we don't necessarily care so much and  despite how horse any of may be in a lot of cases that that cannot be proper it cannot be proper to have a vessel owner delegate a very obvious duty a very simple duty to put some plastic tape around a cord through it or at least tell somebody hey we cut these holes up there and we did markham now that the situation where that vessel was and what they were there to do  company that was hired to go out there and fix it up and they'd had all kind of things wrong with it nor kind of dangerous conditions going on and the thing that the plaintiff in that case was actually working on was something that they had directed them to fix and because of the defect he was injured no i don't think you have a duty to warn in those situations but that's not what we have here morris mr the floor is contract is going to be cutting up this  has the rig is in bad shape that's why it's being decommissioned it that's understandable they're going to be you know sharp edges on it in staircases that might be missing or wrong or too or a hand rail down on one side those are things that you might expect and be prepared for but they have to be able to to do their job safely and they have to if something like this is hidden from them then they have to be warned about it and that i think that's what we have was it is your argument that it's hidden because of the way that it's set up it looks like it's the floor or is it hidden actually hidden in some way we never got a direct answer on that from the witnesses about whether it was hidden behind a skater not so but mr smith's testimony was it looked like solid floor  some sort of optical illusion or something because the way it's placed in the the disagree and scheme of things and i don't know if you are as ever walked on a platform before but it does play tricks on your eyes it's very difficult  to see where there's floor and where there's not floor and i want to mention before i run out it's a standard that would require the plaintiff who is competent by all measures and mr smith competent by all measures to watch every where they put their foot while they're working it is simply not practical that is not what city requires him to do it has to be reasonable that is not reasonable men working on a rig whose attention is going to be drawn to other things they're not going to watch every step they take and i'm just dismissed testimony it was only one or two steps that mr floor took while looking up before you fell through this  hole i'll save the rest of my remarks thank you thank you you're on is a mike bagot from the law firm of wearing a baguette rare in new orleans representing the at the late manson gulf would you preferred walking down the street or coming to houston all right actually i walked down the street from my hotel and it was very very pleasant and not nearly as monkey as home but i will say i was a little surprised that there's eastern district of louisiana appeal ended up for here in houston just lucky i as judge or evenly indicated this is not a working platform this is a rock and not only that it's a part of iraq this is a half of a platform that was known as a twenty three a platform it was purchased by by manson from an oil company then the arrangement was it was sold to mars mars was going to scrap it and cut it up and sell the scrap pieces the other thing that seems to be odd here is that appellant's council seems to suggest that these two individuals mr smith and missal of floor were babes in the woods they are not mr the floor himself as the record will indicate had at least twenty years of experience in this very type of work i didn't hear him say anything about babes in the woods i thought he said they were reasonably competent at their job well but that he saying that we the way i'm reading his argument he seems to suggest that it was negligent on our part to go on and have a hole in those in this platform and that we should have protected these men from this hole even though cynthia howlett kirk ski and the other cases that are applicable to this type of worker says that the are not the primary obligation to protect them undisputed that our client knew of the hole but it's also undisputed your honor and i have to correct counsel on those that morris was away or that platform or sections of platforms like this not all the time but from time to time would have holes in them and that they knew that they had to look for those holes and inspect for him even if they got a statement from whoever delivered the platform to him that there were or were not hosts the testimony by mars personnel was we couldn't rely on that and we had to inspect it undersells that this wasn't the inspection for that well i don't think so because what happened was is that you had the initial report was made by mr clinton claymont i think is the way they would pronounce in louisiana clement was a on behalf of mars he made sure that the vessel had the barge had arrived with the section of platform on board that the that the cargo manifest was correct and that none of noah manson's equipment was left on board he left he was no longer there but before he left he did tell them that there may be an oil problem now mr smith who is the supervisor from mars went out there and he has to conduct an investigation so he or an inspection i should say to make sure well first he is going up for the oil but he also has to conduct a pre work investigation if the testimony isn't necessarily well the clear testimony is that apparently missed a love for her that there was an oil problem on board and so he goes onto the platform and presumably to help mr smith with this oil with this oil problem interestingly mr fuller goes up a different way from mr smith he goes up a walkway that comes the barge is made up to a dock the walkway comes up from the dock side and goes to a raised platform we believe forty to fifty feet above the barge deck as you go up in the platform and there are photographs in the record on appeal you can see holes cut in the grading of that deck you can see that from the dock you can mr smith was approximately eight feet behind mr le floor who is a big man and they were walking ran a piece of equipment missile of four was in front of so he did not see between him and the hole so he didn't see the hole before missler floor fell through it but the fact of the matter is is that he said that i did see it as soon as he fell through it a distance then it and just to say hey hey tim on direct at first and then i had him on cross or and during my question inc i actually presented him with the photographs they're part of the record on appeal and i asked him specifically does issue though the condition of the barge or the barge section scuse me platform section at the time and he says it did and i said could you see it from eight feet away yes and then he said in this is very important on questioning by i believe mr say pay would you have fallen through the hole yourself and this is something that the court the district court latched on judge barr b a a mr smith said no i would not have gone through the whole because i watch where i put my feet now the standard the standard in this type of case set out in how it from the u s supreme court is that we must turn the barge over to a company such as mars or  would floor in such a condition that an expert an experienced stevedore mindful of the dangers he should reasonably expect to encounter will by the exercise of reasonable care be able to conduct his operations in reasonable safety and i want to suggest to you a contract comparison on the one side we have mr smith and on the other side we have missile of four missile the floor the testimony by mr smith was mr the floor was observing the pipe which was some distance above the deck i'm going to suggest to you perhaps eight feet above the deck he was looking at the dac as he's walking around it and mr smith says i watch where i put my feet i suggest to you that the expert an experienced stevedore would act in exactly and precisely the way that mr smith act not in the way that mr floor acted and that while it is unfortunate that mr le floor took that step and fell and died as a result of that what the law tells us is that if this is was out there there's a pushback in calling him an inspector anyone inspecting for structural stability trying to help out on or how does that fit in with the standards that we're talking about you're on  floor was actually inspecting at the time but i could not get him to do to admit much except on one of my questions bear with me a minute as i look for the exact language in one question he admitted and i'm quoting from page eleven of my brief and this was the this was the year we did the statement of uncontested material facts and the point of had to respond and responded minute to this to this requests if he noticed a hazard such as a whole will floor was to report it to mars so that steps could be taken to make the area safe and or minimize any risk before mars personnel were dispatched to cut the structure up for scrap now he admitted that he may not at mit that his title was inspector and holds to the fact that he was an independent contractor but i think if the court looks at this admission it indicates he was to look for holes and in fact i want to direct the court's attention to the testimony of mr smith who was the co worker and this is quoted at page ten of my brief at footnote thirty five he says smith knew and expected well for to know that there would be hose in the grading or at least to inspect for them and then it goes on and this is footnote thirty six smith also said that it was very rare in the industry for someone to advise mars about holes in the grading that's why we go up and look for it and look at us and we look at ourselves are you i mean so i have emphasized that so much i'm trying to see where in the case fall if he were not an inspector or if we say there's a fact question there how your obligation to warn of hazards would change and he was on there on this property in some capacity and let's say is uncertain what his duties were and i accept from your viewpoint is not i'm certain let's just as fact question is your obligation to him on the law we're talking about different if he's not inspecting well i have two arguments on appeal you're on it the second one is based on the west versus u breach of an independent employment obligation and so if he is not an inspector and had no duty to inspect and point out hazards then i probably lose that argument even though it was not contested by the point if on appeal but the question of open obvious is a question that cuts through whether he's an inspector or not because he is still fiat he is still proceeding under a sandia claim against my client and the sandia claim extends to him just as it would to mars so whether you name him an inspector or an independent contractor or something else the fact that it's an open obvious condition would allow this court to grant that and you know that really the question and i want to raise this issue i think of race in the brief but the the point i want to point i want to make to the court is said whether i interrupt myself with another thought before i lose this sure if he saw the hole or not but it appeared to him that he took a step and misstep two or whatever but he went through the whole now  did see the whole although admittedly post accident and smith also testifies he's not sure if the man so saw the hole or not ok but smith also testified that you cannot see it until you're on top of it it looks like solid floor he has multiple yes you could eat got him on cross but he says other testimony and we have to take he can create a fact issue on his own testimony he can be so all over the map chair honor and the only thing i can tell you is that the district court looked at the whole record and considered all the evidence that was before it keep in mind this is a limitation of liability action it's only going to be tried to judge barbie and so he looked at all the evidence in the case and the entire record and he did that and he drew the inference is he is allowed to draw and i might also add haven't judge bobby a to grant a defendant's motion for summary judgment is not very it doesn't happen very often but i think it not only because of his ruling in this case but you have anything else to give me other than what you presented today this was being asked of mr st pay and judge bobby a said meet and miss the same pay said i have nothing else to add to your honor or do you think that is going to be different evidence a deuced from any of these witnesses when this matter was tried and he said no so the court the trial court who would be the tri fact and the decider of fact looked at the entire record and made the call and what's the case that says we don't use the normal summary judgment standard in that case  to you just one one to two sentences if a decision is to be reached by the court and there are no issues of witness credibility the court may conclude on the basis of the affidavits depositions and stipulations before that there are no genuine issues of material fact even though the decision may depend on inferences to be drawn from what has been incontrovertibly proved but the problem with that is the first clause of that where you said there's no issues of credibility if the one witnesses testify in three different ways then there is shoes of credibility as to whether he saying the right thing at the beginning of his deposition or you stay on the right thing on his cr eak that only way you you have to you have to put together his credibility we are going to decide that there and it's not that there are consistent well he's looking keep in mind your honor he's looking not only at the testimony of the witnesses but at the photographic evidence and he's completely he's bringing all that into a way but it doesn't say you can ignore our other evidence it has to all be consistent in order for you to did it doesn't really says when the judge as trier of fact is in such a position as he thought he was he ought to draw his inferences without resort to the expense of trial so i guess your honor my thought is i think the court judge bar b a was correct in his ruling i think the overwhelming evidence in the record supports this the summary judgment that he granted and i do believe that if the case is remanded are going to be back here in another year but with the same result although perhaps different facts not different facts but on a different every densher standard different review stand yeah but i think i think the court got it right  and your client didn't cover the whole because it wasn't their practice to do it no it was there were three three reasons why they didn't this happen offshore and ok what happened is that they're eyes on the deck they were deeply corroded you have pictures of those in the record those couldn't be used they had to cut the holes adjacent to the legs to bring the crane line to bring the lines down from the crane under the deck around the leg and back up and secure it to the crane sling and they were not going to have any other people up there they did not know if you know precisely how the person or group they sold it was going to cut it up and they you know those people normally would take care of their own employees i do admit though you're on it that there is testimony that when a customer specifically requests the customer do recall the testimony that that man morris knew that they would receive platforms from time to time that would not have covered holes and they had to look for ok so this is not a hole that's caused by a rock or some kind of want to pick it up with the last question regarding the holes jeff smith testified that holes for you rigging are usually covered or marked and that was that i'm sorry i don't have the record specifically about these rigging holes in other words these platforms might have holes in them for many different reasons and in this particular platform had for example conduits running up to vessels and those those holes had oddly enough been marked by manson because they had to because while their people were up there they had to mark up those holes they didn't mark was the holes that they cut and what jeff smith was testifying to was that in his experience holes that are cut for this rigging procedure are usually either covered back up or they're marked and his custom he says that a two or three different places in his deposition testimony and mr said it would be great if everyone would mark and cover the holes although they acknowledge that sometimes they're not ok also looking at is a standard in which people working on a vessel that's it and disrepair is going to be demolished need to be careful and what you're talking about is how at times certain warning measures are used but we still come back seems to me to be the ultimate standard of if it's open and obvious to someone exercising reasonable care considering the circumstances which is a a derelict vessel structure then you're not going to have a lot of building i'm not saying how that fits to these facts but sees me talk about sometimes a cover time times and nazis we sometimes what is required is not the limit of what people are willing to do but what we need to figure out what is the legal obligation here and so why is there a legal obligation to mark up when i mark a hole to warn in some way of a hole and a structure of that's being torn apart because there is a duty there's an obligation to warn of or mark all holes i think that's what the law and other open obvious we've already dealt with that you saying this is an open  under the standard we're talk about on the scenario but they do have an obligation to notify of hazards that are not open and obvious correct ok i want to address next year issue the question you had about whether he was an inspector or not where why it would make a difference was really my question i'm going to the factual have to go through that again but why if he's at a specter is he subject to one standard and if he's not an inspector he's perhaps has more protection well i think what manson is trying to argue is that if he's up there and he is tasked with the obligation of actually looking for holes then somehow he should they shouldn't be liable because that's his job and that's the senior test but i would argue that that's not true if you have a hole that's not open and obvious even if the person is tasked with looking for it it's they still have a duty to mark something that's not open and obvious and it's kind of silly but the example is if you took a needle and threw it out on this floor instead missed some big go pick up the needle and i can't see it until i'm actually standing on top of it and it's driving through the bottom of my foot then that needle is not open and obvious you know even though i know it's there and you sent me to go look for it and find it but i did want to point out some deposition testimony which is not quoted in my preclude which i ran across or read and it came in the context of mr baggett asking jeff smith about whether j j should have known there were holes up there in his experience and just about that which you  do because of his experience offshore and smith answered jeje experience offshore with j t experience in a different aspect of the field offshore we were getting into i explained to the court at the hearing that they needed to listen to these witnesses mr caton was not truthful when he said something you knew it was a lie and mr smith was trying to be truthful but he was also trying to walk the plank or walk to toe the line that his his lawyers had asked him to and that's something that you only get from live testimony thank you