* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-31017

Summary Calendar

 

LYNN CURTIS

Plaintiff - Intervenor Defendant - Appellant

v.

EXXON CORPORATION

Defendant - Intervenor Defendant - Appellee

v.

CIGNA INSURANCE COMPANY

Intervenor Plaintiff - Appellant

______________________________________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(94-CV-2745-B)

______________________________________________________

September 29, 1997

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Lynn Curtis and Cigna Insurance Company appeal the district

court’s grant of judgment as a matter of law in favor of Exxon

Corporation. We conclude that the district court correctly

determined that Exxon could not be held strictly liable for the
2

death of George Curtis because the opening through which he fell

did not, as a matter of law, pose an unreasonable risk of harm. 

The judgment of the district court is affirmed.

I. BACKGROUND

This case arises out of a fatal injury sustained by George

Curtis (“Curtis”) on November 19, 1993, while he was performing

work at the Baton Rouge refinery of Exxon Company, U.S.A.

(“Exxon”). Curtis was employed by Mansfield Industrial Coatings

of Louisiana, Inc. (“Mansfield”), which had contracted with Exxon

to perform a number of projects at the refinery. Curtis was part

of a Mansfield crew engaged in sanding and painting “field welds”

resulting from the installation of new pipes at the refinery

dock. At all times pertinent to this action Exxon was the owner

of the dock and the pipeline appurtenances where Curtis was

working.

The refinery dock is a steel and concrete pier-type

structure approximately fifty feet wide and 2,750 feet long which

extends over the Mississippi River. It consists of four levels

of pipeband that transfer crude from vessels to shore tanks and

product from shore tanks to vessels. These pipebands are at the

10-foot, 18-foot, 28-foot, and 38-foot levels. Each pipeband has

openings that allow vertical pipe risers to reach higher pipeband

levels. These openings vary in width. On the 28-foot level,

near the area where Curtis was working at the time of the
3

accident, an opening thirty-nine inches wide divides the pipeband

into an east side and a west side. Walkways cross the width of

the pipeband approximately every 150 feet.

On the morning of November 19, 1993, Curtis apparently had

sanded and was preparing to paint a “field weld” on a riser

located at the thirty-nine-inch opening of the 28-foot level. 

Although Curtis was working on the east side of the opening, he

apparently had stored his paint on the walkway running along the

west side of that level. While attempting to cross over the

opening, Curtis fell to the 18-foot level below. Members of a

welding crew working on that level found Curtis unconscious

immediately after the fall. Curtis received prompt medical

attention, but died the following day in the hospital as a result

of severe head injuries.

Curtis’s widow, Lynn Curtis, filed suit against Exxon in the

19th Judicial District Court for East Baton Rouge Parish,

Louisiana, on November 22, 1994. Exxon timely removed to federal

district court on the basis of diversity jurisdiction. Lynn

Curtis sought damages under theories of negligence and liability

without fault. Cigna Insurance Company (“Cigna”) intervened for

medical, funeral, and compensation benefits paid to Lynn Curtis. 

A jury found that Exxon was not liable in negligence, but was

liable without fault for being in custody of a defective opening

in the pipeband which presented an unreasonable risk of harm. 

The jury attributed fault of 30% to Exxon, 45% to Mansfield, and
4

25% to George Curtis. The jury found that Lynn Curtis had

suffered damages in the amount of approximately $250,000.

After the jury returned its verdict, the parties submitted

briefs on Exxon’s motion, made at the close of plaintiff’s

evidence and renewed upon conclusion of trial, for judgment as a

matter of law. The district court granted Exxon’s motion and

entered judgment dismissing plaintiff’s strict liability claim

with prejudice. The court also entered judgment on the jury

verdict on plaintiff’s negligence claim.

Lynn Curtis and Cigna raise two issues on appeal. First,

they contend that the district court erred in ruling that the

opening through which Curtis fell did not, as a matter of law,

pose an unreasonable risk of harm. Second, they contend that the

district court erred in requesting the jury to quantify the fault

of the employer, Mansfield, along with that of Curtis and Exxon. 

The latter argument rests on the proposition that the 1996

amendment to article 2324 of the Louisiana Civil Code, which

arguably permits quantification of employer fault, is not to be

applied retroactively. Because we conclude that the district

court properly dismissed the strict liability claim, we do not

reach this second issue.

II. DISCUSSION

Rule 50 of the Federal Rules of Civil Procedure provides, in

part:
1 Article 2317 of the Louisiana Civil Code provides, in

relevant part:

5

If during a trial by jury a party has been fully heard

on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for

that party on that issue, the court may determine the

issue against that party and may grant a motion for

judgment as a matter of law against that party with

respect to a claim or defense that cannot under the

controlling law be maintained or defeated without a

favorable finding on that issue.

FED. R. CIV. P. 50(a)(1). The district court may rule on a motion

for judgment as a matter of law either before or after submission

of the case to the jury. FED. R. CIV. P. 50(b).

We review the grant of judgment as a matter of law de novo. 

Texas Farm Bureau v. United States, 53 F.3d 120, 123 (5th Cir.

1995). A motion for judgment as a matter of law should be

granted by the district court if, after considering all the

evidence in the light and with all reasonable inferences most

favorable to the party opposed to the motion, the facts and

inferences point so strongly and overwhelmingly in favor of one

party that the court concludes that reasonable people could not

arrive at a verdict to the contrary. Id.; see also Conkling v.

Turner, 18 F.3d 1285, 1300 (5th Cir. 1994).

The contested issue in this appeal is whether the thirtynine-inch opening through which George Curtis fell posed an

“unreasonable risk of harm” as required under Louisiana law to

prevail on a theory of strict liability. See Oster v. Dep’t of

Transp. & Dev., 582 So. 2d 1285, 1288 (La. 1991).1 Absent an
We are responsible, not only for the damage occasioned

by our own act, but for that which is caused by the act

of persons for whom we are answerable, or of the things

which we have in our custody.

LA. CIV. CODE. ANN. art. 2317 (West 1997).

To prevail on a theory of strict liability under article

2317, a plaintiff must show that 1) the thing which caused the

damage was in the custody of the defendant; 2) the thing

contained a “defect” (i.e., it had a condition that created an

unreasonable risk of harm to the plaintiff); and 3) the

“defective” condition of the thing caused the plaintiff’s

injuries. Oster, 582 So. 2d at 1288. The issues of custody and

causation are not contested in this appeal.

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unreasonable risk of harm, the defendant possesses no duty. Id.

The unreasonable risk of harm criterion “entails a myriad of

considerations and cannot be applied mechanically.” Id. This

criterion requires the court

to balance the likelihood and magnitude of harm against

the utility of the thing . . . . In addition to the

likelihood and magnitude of the risk and the utility of

the thing, the [court] should consider a broad range of

social, economic, and moral factors including the cost

to the defendant of avoiding the risk and the social

utility of the plaintiff’s conduct at the time of the

accident.

Id. at 1289. The court must consider all of the circumstances

surrounding the particular accident under review. Id.

One factor to be considered in determining whether a

condition is unreasonably dangerous is the degree to which a

potential victim may observe the danger. Phipps v. Amtrak, 666

So. 2d 341, 343 (La. Ct. App. 1995). “When a dangerous condition

is patently obvious and easily avoidable, it can hardly be

considered to present a condition creating an unreasonable risk
7

of harm.” Id.; see also Desormeaux v. Audubon Ins. Co., 611 So.

2d 818, 821 (La. Ct. App. 1992) (“An owner is not liable [in

negligence or strict liability] for injury which results from a

condition which should have been observed by the plaintiff in the

exercise of reasonable care or which was obvious.”). In

Desormeaux, for instance, the court held that a building owner

was not strictly liable for injury to a roof repairman who

slipped on a damp ceiling joist:

He was a skilled repairman and was fully aware of the

obvious condition in the roof and attic. The dangers

of the work area were obvious. [Plaintiff] took no

measures to reduce the dangerous work area, e.g. [sic]

adding more light and making a walkway over the joists. 

He clearly voluntarily chose to empty the washtub in an

unsafe manner, lost his footing and fell. This was the

cause-in-fact of the accident.

Desormeaux, 611 So. 2d at 821.

The evidence in this case establishes that the thirty-nineinch opening through which Curtis fell exists to permit the use

of vertical risers between levels of pipe and to accommodate the

structural supports for the dock itself. The opening accordingly

has significant utility. To determine whether the opening

presented an unreasonable risk of harm, we must consider the

manner in which the property was intended to be used. Oster, 582

So. 2d at 1289. Significantly, the opening exists in an area not

subject to general traffic but utilized by maintenance and

construction personnel. To facilitate work on the pipebands,

walkways have been constructed along the length of the dock and
2 The fact that the accident did in fact occur is not proof

that the thing in question presents an unreasonable risk of harm. 

Gray v. Economy Fire & Cas. Ins. Co., 682 So. 2d 966, 971 (La.

Ct. App. 1996).

8

at approximately 150-foot intervals across the width of the dock

on each level. The evidence indicates that workers might

nevertheless be required to traverse the pipes themselves,

although it also indicates that the use of scaffolds or pick

boards under such circumstances is common and that these

materials are easily available upon request by a contractor. 

Further, workers are required to wear life preservers and safety

lanyards while working on the pipebands, and Curtis had been

provided with both. The opening was in no way obstructed from

plain view and Curtis or any other worker who needed to cross it

could have used a nearby walkway or a temporary cross-over. 

Considering all of the circumstances, we agree with the district

court that the likelihood of the type of accident that occurred

here is minimal.2 The opening does not present an unreasonable

risk of harm and the district court properly granted Exxon’s

motion for judgment as a matter of law.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.