### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40913

CARL THERON TERRY, Individu a l l y a n d a s Representative of the Estate of Nenita Casela Terry, Deceased, Plaintiff,

v. BP AMOCO CHEMICAL COMPANY, ET AL,
Defendants.

____________________________________ STEVEN ANDREWS, Plaintiff–Appellant,
v. BP PRODUCTS NORTH AMERICA, INCORPORATED, Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. 3:07-CV-389

Before OWEN and HAYNES, Circuit Judges, and LEMELLE, *District Judge. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 27, 2014 Ly l e W . Cay ce Clerk

* D is trict Jud ge of

the Eas tern D is trict of Louis iana, s itting by d es ignation. Case: 12-40913 Document: 00512679581 Page: 1 Date Filed: 06/27/2014No. 12-40913

PER CURIAM: ** Steven Andrews seeks re v iew of the district c ourt’s grant of summary judgment in favor of B P Products North America, Inc. ( BP). Andrews a sserted negligence and premise liability c laims arising out of injuries sustained when he fell and then was stepped upon in a parking lot while running immediately after an explosion at BP’s Texas City refinery (the Refinery). We affirm. I Andrews was employed by a contractor, Zachary Constructi o n , as a carpenter’s helper. Zachary Construction was engaged by BP to perform tasks at the R efinery o n a work-order basis relating to “maintenance assets” including tools, equipment, and vehicles. Andrews had w orked at the R efinery the day of the explosion. After the end of his shift, he and his cousin had j u s t passed through a turnstile, e xiting o nto a BP parking lot. They stopped to talk to one of his cousin’s former coworkers. It was then th a t a portion of the Refinery’s Resid Hydrotreater Unit (RHU) exploded. When the RHU exploded, Andrews a nd his cousin reported hearing a loud noise and seeing a cloud of black smoke form over the plant. A security guard

ran toward them from the security guard “shack” s houting that “the plant just blew up. Y’all get out of here.” As Andrews turned t o evacuate, he tripped and fell, and an unidentified person collided with him a n d stepped o n his back. Andrews was helped to his feet by his cousin, a nd the two fled across the street. Andrews alleges that his back was i njured i n the incident, preventing him from working, requiring significant medical treatment, and causing him a nxiety and depression.

* * Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4. 2 Case: 12-40913 Document: 00512679581 Page: 2 Date Filed: 06/27/2014No. 12-40913

Andrews and BP appear to agree that the explosion was caused, at least in part, by a faulty component improperly installed in t he RHU by another contractor, JV Industrial Comp a n i e s, Ltd. (JV Industrial). JV Industrial purportedly replaced an alloy steel e lbow i n a h igh-pressure, high-temperature hydrogen line with a carbon steel elbow five months before the explosion. The carbon s t e e l e l b ow r uptured after three months of u se. Hydrogen gas escaped and ignited, and a fireball erupted in the unit. Andrews and other plaintiffs s ubsequently f iled suit against BP i n Texas state court seeking damages for various personal injuries and property damage arising from the explosion. The p laintiffs collectively assert e d c l a i ms of negligence (including premises liability), gross negligence, and i n t entional infliction of emotional distress. BP removed the s u it to the District Court for the Southern District o f Texas w here it was consolidated with other suits related to the explosion. Over t ime, the majority of claims were settled or dismissed, but Andrews’s claims persisted without significant activity for almost five years. In respo n s e to an o rder from the district court requiring Andrews to “specify the precise legal theory for h is claim,” An d r ews f iled a Supplemental Complaint. Andrews again asserted that his injuries occurred as a r esult of the explosion and ensuing evacuation from th e Refinery, and he e numerated fifteen

s eparate allegations of n egligent conduct by BP including failure to p r o p e r l y design, maintain, and oversee the RHU, and failure to prepare for and execute

a safe evacuation. The district court subsequently ordered Andrews to produce certain medical and employment r e cords and to “[i]dentify (a) the person who

s t epped on his back and (b) the specific defect th at caused him to fall.” I n response, Andrews stated that he could not identify the person who stepped on h i m or any d efect in the p arking lot. He a rgued that his a llegations did n o t encompass or rely on any d efect in the parking l o t, and he r easserted that he “tripped as he turned to run from the explosion.” Andrews’s theory of the case

3 Case: 12-40913 Document: 00512679581 Page: 3 Date Filed: 06/27/2014No. 12-40913

was that the defect in the RHU caused an explosion and e vacuation that was the proximate cause of his injuries, or a t the very least a concurrent proximate

cause. BP moved for summ a r y j u d gment, arguing that Andrews’s c laims were barred as a m atter of law by Chapter 9 5 o f the Texas Civil Practice and Remedies Code, which pertains to the liability of property o wners for the acts of independent contractors. The district court denied that motion but invited BP to move for summary judgment on the a lternate ground that Andrews had failed to identify “the specific d e f ect in the walk or person who stepped on h im.” BP filed a second m otion for summary judgment, which th e court granted. Andrews appealed. II W e review a grant of summary judgment de novo, applying the s a m e standard as the district court. 1 Summary judgment is appropriate i f “there is no genuine dispute as t o any material fact and the m ovant is entitled to judgment

as a matter of law.” 2 We review the evidence in the light most favorable to the nonmovant including all r easo n able inferences. 3 An issue is “material” if it would affect the o utcome of the case and is “genuine” if the evidence is sufficient for a reasonable factfinder to return a verdict for the n onmoving p arty. 4 “When

a defendant moves for summary judgment and ident i f i e s a lack of evidence to support the plaintiff’s claim on an issue for which the plaintiff would b e a r the burden of proof at trial, then the defendant is entitled to summa r y j u d g ment

1 Tri ni ty U

ni v ersa l Ins. Co. v . Em p ’rs M ut. Ca s. Co. , 592 F. 3d 687, 690 ( 5th C ir. 2010)

.
2 F E D

. R. C IV

. P. 56( a)

.
3 Tri ni ty Uni v ersa l I

ns. Co. , 592 F .3d at 691.

4 Levy G a rdens Pa rtners 2007, L

. P

. v . Com m onw ea l th L and Ti tle Ins. Co. , 706 F. 3d 622, 628 ( 5th C ir. 2013)

. 4 Case: 12-40913 Document: 00512679581 Page: 4 Date Filed: 06/27/2014No. 12-40913

unless the plaintiff i s able to p roduce ‘summary judgment evidence sufficient to sustain a finding in plaintiff’s favor o n th at issue.’” 5 “In such a situation, there

can be ‘ no g enuine issue as to any material fact,’ since a complete f ailure of proof

concer n i n g an essential element of the nonmoving party’s c a se necessarily renders all other facts immaterial.” 6 III BP’s s econd mo t i o n f or summary judgment, which the district court granted, is not a model of clarity. At the outset, the m otion s tates that it “seeks dismissal of all of Andrews’ claims based on his inability to i d e n t i f y ( 1) the
person he alleges s tepped on his back and (2) the specific defect that he alleges caused him to fall

. Without such evidence, Andrews cannot establish the essential elements of his claims against BP Products.” T his i ndicates that the focus of the motion is on th e condition of the parking lo t a n d Andrews’s fall. However, the m otion subsequently asserted the grounds for summary judgment

more broadly. T he motion set forth the e lements of a n egligence claim, arguing that there was no evidence that BP “did something or failed to d o something a reasonably prudent person would have done under the same or simi l ar circumstances which proximately caused An d r e w s’ i njuries.” The motion also set forth the elements of a p remises liability claim, arguing that t h e r e w a s no evidence to support four of the six elements identified. Andrews did not view BP’s motion a s limited to the condition o f, or events transpiring in, BP’s parking lot. In the first paragraph of his response to BP’s second motion for s ummary judgment, Andrew s d i s a greed with the district court’s attempt to direct the focus of the litigation to the parking lot, stating that i n response to a court order, he had f iled a supplemental compl a i n t “ a n d

5 Ja m es v . Sta te Fa rm M ut. A uto. Ins

. Co ., 743 F. 3d 65, 68 ( 5th C ir. 2014) ( c i tation om itted )

.

6 Celotex Corp

. v . C

a trett , 477 U

. S. 317, 322- 23 ( 1986)

.

5 Case: 12-40913 Document: 00512679581 Page: 5 Date Filed: 06/27/2014No. 12-40913

identified the failures r espon s ib le for the plant explosion as the negligent activity, and the improper placement of piping as the premises defect in question in this case.” Andrews’s response to BP’s second motion for summary judgment also s tated on the first page that “Plaintiff’s pleadings have never asserted that the person or thing that he fell over was a premises defect. Plaintiff has never asserted that the person who instructed the evacuees was negligent.” I n the argument section of Andrews’s r esponse, h e made clear that th e only basis for his claims was BP’s responsibility for the explosion at its plant:

This case concerns an explosion. Plaintiff’s theory of the case is that the f

all and injury were proximately caused by the explosion on July 28, 2 005 and the c haos that e n sued. Plaintiff h as never claimed this case is about the person that step p e d on P laintiff’s b a c k

. Plaintiff has never claimed th is is a premise liability case asserting a defect in the parking l o t w h e r e Plaintiff fell. This is a c a s e about the explosion, the omissions o f th e Defendant responsible for the explosion, and the defect in the piping , a n d h o w that negligence was the proximate cause of Plaintiff’s f all during th e evacuation. Plaintiff has outlined the e v i d e n ce on each claim and further briefed the issue of proximate cause and concurring cause.
An d r e w s ’ s response then details his arguments as to w hy BP s hould b e found l i able for negligence and why Andrews should prevail on a p remises liability claim. The factual a ssertions in Andrews’s response underpinning both theori e s of liability are essentially the s a me. Based on the second, although sketchy, motion for summary judgment and Andrews’s fulsome response to that motion, it i s fair t o say that issue w as joined on whether there was evidence that BP was responsible for the explosion. BP a sserted i n i t s m o tion for summary judgment that there was no evidence raising a triable issue of fact on the elements of either the negligence

or premises liability c laim. Andrews’s response to that motion is replete with allegations of acts or omissions an d c o n c l u s ory assertions of negligence. It is, however, l acking i n any a dmissible evidence to support those allegations and

6 Case: 12-40913 Document: 00512679581 Page: 6 Date Filed: 06/27/2014No. 12-40913

assertions. With respect t o the negligence claim, the response to the summary judgment motion asserts:

I n this c ase, Defendant was a h andler of a da n g e r o u s commodity, specifically hydrogen. Exhibit B. Defendant’s f acility was the site o f an e xplos i o n a n d f ire after “a piping elbow catastrophically” failed. Exhibit C. Defendant fa i l e d to p roperly handl e the d angerous commodity, by failing to ensure the system was properly r econstructed. Exhibit C and D. The piping exploded at the flange due to a High Temperature Hydrogen Attack (HTHA). Exhibit D at 1. Incidents involving H THA have o ccurred since th e 1940’s. Exhibit D at 4. The topic of HTHA has been the subject of writings since at least 1 985. Exhibit D at 8. In fact, the American Petroleum institute issued a recommended p ractice, concerning “Steels for Hydrogen Service at Elevated T emperatures and Pressures in Petroleum Refineries and Petrochemical Plants” in March of 2004, a year before t h e contractor performed reconstruction of the u n it piping. Exhibit D at 8

. Defendant failed to inspect the system and make sure the contract p roperly reconstructed the s ystem after maintenance. Exhibit D at 6. Defendant failed to design the system so t h at incompatible parts could n ot be interchanged during r econstruction. Exhibit D at 6. Defendant failed to require positive m a t erial identification during maintenance to prevent improper reconstruction. Exhibit C and D at 6. Defendant failed to alert the maintenance c o ntractor that th e two pieces of the pipe could not be interchanged. Exhibit C and D at 7. Defendant “should have required positive materials verification o f these pipe elbows.” Exhibit C. If Defendant h ad done so, the accident would n ot have occurred. Exhibit C. It is a b reach of the high degre e o f c are required o f Defendant to fail t o ensure proper reconstruction of the unit piping.
The r esponse to the motion for summary judgment regarding th e issue of premises liability is virtually identical. Exhibits C and D are the only evidence that Andrews identified as raising

a material issue o f fact as to BP’s responsibility for the explosion. Those exhibits

are a Safety Bulletin issued b y the United States Chemical S afety and Hazard Investigation B oard (CSB) and a CSB press release discussing th e bulletin. The statute creating the CSB, however, prohibits Andrews fro m using those 7 Case: 12-40913 Document: 00512679581 Page: 7 Date Filed: 06/27/2014No. 12-40913

documents as evidence in this case. 7 A dditiona l l y , both CSB documents also likely constitute inadmissible hearsay u nder the F ederal Rules of E vidence. 8 Because Andrews did not identify any admissible evidence that B P breached a legal duty of care owed to Andrews, BP was entitled to summary judgment. * * * The judgment of the district court is AFFIRMED.

7 Se e 42 U. S. C. § 7412( r) (6) (G ) ( “N o part of the conclus ions , find ings , or recom m end ations of the Board relating to any accid ental releas e or the inves tigation thereof s hall be ad m itted as evid ence or us ed in any action or s uit f or d am ages aris ing o u t o f any m atter m entioned in s uch rep ort. ”)

.

8 See F E D

. R. E VI D

. 801- 02. 8 Case: 12-40913 Document: 00512679581 Page: 8 Date Filed: 06/27/2014