* District Judge of the Southern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91–3617.

Lonnie DONAGHEY, et al., Plaintiffs,

v.

OCEAN DRILLING & EXPLORATION COMPANY, et al., Defendants.

CONOCO, INC., Old Odeco, Inc., and Odeco Drilling Service, Inc.,

Third–Party–Plaintiffs–Appellants,

v.

VARCO INTERNATIONAL, INC., Third–Party–Defendant–Appellee.

Oct. 13, 1992.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY * *, District Judge.

ILIO M. GARZA, Circuit Judge:

After Lonnie Donaghey was injured wh ile working aboard the D/B OCEAN TITAN,

Donaghey and his wife brought suit agai nst Old Odeco, Inc., the owner of the OCEAN TITAN,

Odeco Drilling Services, Inc., Donaghey's employer (co llectively ODECO), and Conoco, Inc.

(Conoco), the party for whom Odeco was working at the time of the accident, asserting that

ODECO's and Conoco's negligence caused Donaghey's injuries. Subsequently, ODECO and Conoco,

alleging that Varco's negligence caused Donaghey's injuries, filed third party complaints against Varco

Int ernational, Inc., Varco BJ Oil Tools, and Varco BJ Drilling Systems (collectively Varco), t he

manufacturer and seller of the Varco top drive system. The Donagheys then amended their complaint

to name Varco as a defendant. Varco moved for summary judgment, contending that its actions were

not a legal cause of Donaghey's accident and that the gross negligence of Odeco was the cause of the

accident. The district court granted Varco's motion for summary judgment. ODECO and Conoco

appeal. Finding that the district court improperly granted summary judgment, we reverse andremand.

I

Donaghey worked as a driller for ODECO aboard the OCEAN TITAN, an offshore drilling

vessel, which was on location for Conoco in the Gulf of Mexico. During drilling operations, George

Pittman, the ODECO Senior Toolpusher, determined that a safety valve on the Varco-manufactured

top drive needed to be changed. In order to change the valve, the ODECO crew attempted to break

the upper main shaft connection, also manufactured by Varco. The crew discovered that the

connection was frozen, and tried initially to break the connection with a set of DB tongs which had

a rated capacity of 65,000 pounds. Because these attempts were unsuccessful, the crew removed the

DB tongs and then procured ODECO's SDD tongs—which are larger than the DB tongs and have

a working capacity of up to 100,000 pounds. The SDD tongs, however, did not have the correct size

jaws and did not fit around the frozen connection. The crew removed the SDD tongs, and Pittman

ordered the DB tongs back on the con nection. The DB tongs were pulled in excess of their rated

capacity and failed during one of the attem pts to break the frozen connection. Donaghey was struck

and injured by a piece of the tongs.

Donaghey and his wife brought suit against ODECO, Conoco, and Varco, and ODECO and

Conoco filed claims against Varco. Subsequently, Varco moved for summary judgment, arguing that

it was not negligent but, t hat , in any event, any alleged negligence was not a legal cause of

Donaghey's accident and, therefore, it was entitled to judgment as a matter of law. The Donagheys

opposed Varco's motion for summary judgment on the grounds that there was a fact question whether

the Varco-manufactured top drive caused Donaghey's accident. Responding to Varco's summary

judgment motion, ODECO and Conoco argued that the connection had become frozen due to Varco's

negligence and, even assuming that ODECO and/or Conoco were negligent and the tongs broke

because they were used in excess of their rated capacity, it was foreseeable that attempts would be

made to free the connection.1 The district court stated:

This Court agrees that whatever the reason the valve in question stuck, the

decision by Odeco to knowingly exceed the rated capacity of the tongs, rather

[than] shut down operations until the proper jaw could be located for the SDD

tongs, was the legal cause of the accident.... [E]ven if Varco was negligent,

Odeco's negligence was the superseding cause of the accident."

Record on Appeal, vol. 3, at 748, Donaghey v. Ocean Drilling & Exploration Co., No.

91–3617 (5th Cir. filed July 24, 1991) ["Record on Appeal"]. The district court found no factual issues with respect to Varco's liabilit y and granted Varco's

motion for summary judgment. 1 ODECO and Conoco settled with the Donagheys and, thereafter,

ODECO and Conoco moved the district court to reconsider its order granting Varco's motion for

summary judgment. Citing N unley v. M/V DAUNTLESS COLOCOTRONIS, 727 F.2d 455 (5th Cir.)

(en banc), cert. denied, 469 U.S. 832, 105 S.Ct. 120, 83 L.Ed.2d 63 (1984), ODECO and Conoco

argued that the doctrine of superseding negligence does not apply under the gene ral maritime law

and, therefore, the district court erred in holding that Odeco's negligence was a superseding cause of

the accident. The district court denied ODECO's and Co no co's motion to reconsider, with the

explanation:

Upon review, the Court may have spoken unartfully in stating that "Odeco's negligence was

the superseding cause of the accident.' What is clear is that the Court intended to find, and

does find, that there were no factual issues in dispute and that t he negligence of Odeco in

deliberately choosing to exceed the rated capacity of the tongs in attempting to unstick the

frozen connection is the legal cause of the accident and that any negligence of Varco was not the legal cause of plaintiff's injury.

Record on Appeal, vol. 3, at 672.

ODECO and Conoco appeal, contending that a fact quest io n exists whether Varco's

negligence is a legal cause of Do naghey's injuries, and they also contend that the doctrine of

comparative fault should be applied to determine the effects of Varco's negligence. Varco contends

that the district court correctly found no genuine issue as to any material fact, and also seeks

damages, alleging that ODECO and Conoco have brought a frivolous appeal.II

A

In an appeal from a grant of summary judgment standard, we review the record de novo. S ee

International Shortstop, Inc. v. Rally's, 939 F.2d 1257, 1263 (5th Cir.1991), cert. denied,

––– U.S.

–––– , 112 S.Ct . 936, 117 L.Ed.2d 107 (1992). Summary judgment is proper if the movant

demonstrates the absence of genuine issues of material fact. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Such a showing entitles the

movant to summary judgment as a matter of law. S ee Fed.R.Civ.P. 56(c). The movant accomplishes

this by informing the court of the basis for its motion, and by ident ifying portions of the record which

highlight the absence o f genuine factual issues. S ee generally id. If the movant is successful, the

nonmovant must then direct the court's attenti on to evidence in the record sufficient to establish that

there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986). The nonmovant cannot satisfy this burden merely by denying t he

allegations in the opponents pleadings but can do so by tendering depositions, affidavits, and other

competent evidence to buttress its claim. S ee Rally's, 939 F.2d at 1263; s ee also Fed.R.Civ.P. 56(e).

Summary judgment is appropriate if the nonmovant fails to set forth specific facts to show that there

is a genuine issue for trial. See Topalian v. Ehrmann, 954 F.2d 1125, 1132, (5th Cir.1992) citing

Marsh v. Austin–Fort Worth Coca–Cola Bottling Co., 744 F.2d 1077, 1079 (5th Cir.1984).

B

ODECO and Conoco contend that the district court erred in ruling that, as a matter of law,

Varco's negligence was not a legal cause of the accident which resulted in Donaghey's injuries, and

they also contend that, because the doctrine of superseding negligence does not apply in maritime

cases, the doctrine of comparative negligence should be applied.

Under the general marit ime law, a party's negligence is actionable only if it is a "legal cause'

of the plaint iff's injuries. S ee Chavez v. Noble Drilling Corp., 56 7 F.2d 287, 289 (5th Cir.1978).2 Varco also referred to, but never produced, the deposition testimony of Denny Ducker. On

appeal, Varco states that both Ducker and Pittman admitted that the tong broke because it was

pulled in excess of its rated capacity. Varco contends that it filed the deposition of Ducker in the

record but that it is not contained in the record on appeal. In an appeal from a summary

judgment, this court considers only those evidentiary materials that were before the district court.

See Topalian v. Ehrman, 954 F.2d 1125, 1131–32 & n. 10 (5th Cir.1992), petition for cert. filed,

60 U.S.L.W. 3860 (U.S. June 4, 1992) (No. 91–1973). There is nothing to suggest that the

deposition testimony of Ducker was ever filed in the district court or that the district court

reviewed it, and therefore we do not consider it.

3 The Donagheys' Memorandum in Support of Opposition to Varco's Motion for Summary

Judgment consisted in its entirety of the following:

This case involves an injury which occurred involving Lonnie Donaghey.

Lonnie Donaghey was a driller employed by Odeco. He was severely injured when

a portion of a tong broke during a procedure attempting to break a connection.

Varco manufactured the top drive. The main connection was connected to

the top drive. It is alleged that the top drive was defective in that it was

overtorqued. It is also alleged that the manufacturer, Varco, recommended the

wrong type pipe "dope'. It is alleged that this contributed to the accident.

Copies of letters obtained from Odeco indicate that this may have been the

problem which caused the accident. Based upon this, there is an issue of fact

which should be submitted to the jury. "[L]egal cause is something more than "but for' causation, and the negligence must be a "substantial

factor' in the injury." T

homas v. Express Boat Co., 759 F.2d 44 4, 448 (5th Ci r.1985) (ci tati ons

omitted). The term "substantial factor' means more than "but for the negligence, the harm would not

have resulted." S

pinks v. Chevron Oil Co., 507 F.2d 216, 223 (5th Cir.1975); see also Chisholm

v. Sabine Tow ing & Transp. Co., 679 F.2d 60, 63 (5th Cir.1982).

In its motion for summary judgment, Varco argued that, even if it was negligent, this alleged

negligence was not a legal cause of the accident. Instead, according to Varco, the legal cause of the

accident was the gross negligence of the Odeco Senior Toolpusher—that is, according to Varco, the

accident occurred because the Odeco Senior Toolpusher chose to exceed the rated capacity of the

tongs. To support its argument, Varco proffered the deposition testimony of Pittman. 2

The Donagheys, in opposing Varco's summary judgment motion, argued that there was a fact

question whether the allegedly defective Varco-manufactured top drive caused Donaghey's accident. 3Record on Appeal, vol. 3, at 860–61. We note that the admissibility of evidence on a

motion for summary judgment is subject to the same standards and rules that govern

admissibility of evidence at trial. See Lavespere v. Niagara Mach. & Tool Works, Inc.,

910 F.2d 167, 175–76 (5th Cir.1990). None of the parties objected to or challenged the

admissibility of the Donagheys' proffer of the letters and an investigation report

accompanying their memorandum and, accordingly, we find that any objections to them

are waived. See McCloud River R.R. Co. v. Sabine River Forest Prods., Inc., 735 F.2d

879, 882 (5th Cir.1984) (party waived its objection where it failed to make a timely

objection in district court); Auto Drive–Aw ay Co. of Hialeah v. Interstate Commerce

Comm'n, 360 F.2d 446, 448–49 (5th Cir.1966) (in the absence of a timely objection or

motion to strike, defects in summary judgment evidence ordinarily are waived).

Additionally, the Donagheys' "Statement of Material Facts Pursuant to Rule 2.10 of the

Eastern District" stated:

(1) The Varco top drive was overtorqued.

(2) The pipe dope used as recommended by Varco contained zinc compound.

(3) Zinc compound is improper and this contributed to the over-torquing of the

top drive.

(4) The over-torquing of the top drive contributed to this accident.

Record on Appeal, vol. 3, at 889.

4 Specifically, ODECO and Conoco stated that "the connection which was frozen had become

frozen due to the negligence of Varco in recommending improper pipe dope and/or in improperly

constructing the connection." Record on Appeal, vol. 3, at 791–92.

5 ODECO and Conoco did not submit any summary judgment evidence to controvert the

evidence proffered by Varco in its summary judgment motion. ODECO's and Conoco's

Opposition to Motion for Summary Judgment was accompanied by a Reply to [Varco's]

Statement of Uncontested Material Facts. ODECO and Conoco also opposed Varco's sum mary judgment motion on the grounds that the

connection became frozen due to the negligence of Varco. 4 ODECO and Conoco then continued,

[o]nce the connection became frozen, it was certainly fo reseeable that attempts would be

made to free the connection. Assuming for the sake of argument that Odeco and/or Conoco

were negligent (which is denied) and the tongs which broke because they were used in excess

of their rated capacity, that eventuality was certainly a foreseeable result once the connection

became frozen and those on board the rig were faced with having to break it."

Record on Appeal, vol. 3, at 4. 5

We find that Varco, the movant, failed to establish (1) the absence of factual issues regarding

the question whether its actions constitute a legal cause of Donaghey's injuries or (2) as a matter of6 See supra note 2.

7 For example, the conclusion in the investigation report states:

Seizure of the HWDP and top drive connection resulted from inadequate

galling protection from the thread dope employed on these connections. The

occurrence of seizure only on new shoulders and threads further supports this

conclusion.

Stress calculated from application of the torsional, tensile, and hydrostatic

forces during attempted freeing of the stuck drill do not appear adequate to

overcome the connection preload imposed by normal makeup torque. The

calculated stresses are less than one-half the yield strength of API specified

minimum mechanical requirements and approximately one-third the reported actual

yield strength of the top drive tools.

Record on Appeal, vol. 3, at 877. law that the negligence of ODECO and Conoco constitutes a superseding cause of Donaghey's

injuries.

(1)

Contrary to ODECO's and Conoco's assertions, Varco never admitted it was negligent, but

rather it stated in its summary judgment motion that, "[e]ven if the connection was overtorqued as

a result of the negligence of Varco (which is denied by Varco), the accident occurred not because of

the overtorqued connection but because the Odeco Senior Toolpusher knowingly chose to exceed

the rated capacity of the tongs." Record on Appeal, vol. 2, at 386. Varco proffered the deposition

testimony of Pittman to show that, at Pittman's instruction, the tongs were pulled in excess of their

rated capacity and the tongs broke because they were "stressed out".

We find that Pittman's deposition testimony—the only summary judgment evidence submitted

by Varco 6 —may support the conclusion that the negligence of ODECO and Conoco contributed to

the accident which led to Donaghey's injuries. However, we find that this evidence is insufficient to

establish, as a matter of law, that Varco's actions were not a legal cause of Do naghey's injuries.

Second, we find that the letters and the copy of the investigation report which indicate that Varco's

actions contributed to the accident 7 create a fact question with respect to Varco's liabilit y. Third, the8 For example, these documents establish that, after the accident, it was discovered that the

threads to the Varco-manufactured piece of equipment was outside API specifications, and that

drilling mud had seeped into the connection and contaminated the pipe dope therein. A sample of

the pipe dope removed from the connection contained essentially no lead components, but zinc.

9 ODECO and Conoco cite Nunley v. M/V DAUNTLESS COLOCOTRONIS, 727 F.2d 455 (5th

Cir.) (en banc), cert. denied, 469 U.S. 832, 105 S.Ct. 120, 83 L.Ed.2d 63 (1984), to support thei r argument that the doctrine of superseding negligence does not apply in maritime cases. record also creates a fact question as to causation because it indicates that the events that led to

Donaghey's injuries were placed into motion only after the Varco-manufactured connection froze, and

the ODECO crew attempted to break it. 8 Accordingly, we hold that a fact question exists whether

Varco's actions constitute a legal cause of the accident and th e district court erred i n granti ng

su mmary judgment on the grounds that, as a matter of law, "any negligence of Varco was not the

legal cause of plaintiff's injury."

(2)

We also find that Varco failed to establish as a matter of law that ODECO's negligence

constitutes a superseding cause of Donaghey's injuries. 9

In United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251

(1975), the Supreme Court abolished the doctrine of mutual fault-equal contribution and announced

the rule that damages in marit ime cases should be apportioned according to comparative fault. The

Supreme Court held that "when two or more parties have contributed by their fault to cause property

damage in a marit ime collision or stranding, liabilit y fo r such damage is to be allocated among the

parties proportionately to the comparative degree of their fault." Id. at 411, 95 S.Ct. at 1715–16.

This court had occasion to examine the teachings of Reliable Transfer in connection with the

doctrine of superseding negligence in Nunley v. M/V DAUNTLESS COLOCOTRONIS, 727 F.2d 455

(5th Cir.) (en banc), cert. denied, 469 U.S. 832, 105 S.Ct. 120, 83 L.Ed.2d 63 (1984). Nunley —a

case invo lving the Wreck Act, 33 U.S.C. § 409—was an appeal of six consolidated admiralty cases,10 As the court noted:

The basis for this argument is that the Wreck Act obligates the owner of a sunken

vessel and, in some circumstances the United States, to mark or remove the wreck,

and, since the upriver defendants (the actual sinkers of the vessel) have no similar

obligation, they have no liability arising out of the DAUNTLESS's allegedly

striking of the COMBI.

Nunley, 727 F.2d at 457–58. arising out of the collision of the M/V DAUNTLESS COLOCOTRONIS with a sunken wreck. In

1977, the DAUNTLESS collided with a barge (the COMBI), which, following its 1974 sinking, had

remained unmarked. Defending the lawsuit, the individuals who were allegedly responsible for the

sinking of the COMBI (the upriver defendants) filed a motion for judgment on the pleadings,

contending that, even if they had caused the COMBI's sinking, they could not be held l iable for

damages resulting from the 1977 collision. 10 In evaluating the contentions of the upriver defendants,

the court held that the alleged negligence of subsequent tortfeasors could not, as a matter of law, be

regarded as a superseding cause exonerating them (the init ial tortfeasors) from liabilit y for damages

which primarily resulted from their negligence. N unley, 727 F.2d at 462. This court, c iting United

States v. Reliable Transfer Co., 421 U.S. 397, 411, 95 S.Ct. 1708, 1715–16, 44 L.Ed.2d 251 (1975),

explained that the " causal initial negligence of the upriver defendants that contributed to the later

accident should make them liable for their apportioned share of the loss." Id.

Refusing to hold that, in all cases and as a matter of law, "the failure to mark, whether or not

negligent, constitutes a superseding caus e, co mpletely absolving the party whose fault, however

egregious, caused the sinking," the court framed the problem as one of " "whether the defendant is

to be held liable for an injury to which he has in fact made a substantial contribution, when it is

brought about by a later cause of independent origin, for which he is not responsible.' " Id. at 464,

citing P ROSSER

, L AW OF T ORTS , 4th ed. 270. The court, then, set forth the factors to be examined

to determine whether an intervening force supersedes prior negligence. I d. at 464, q uoting11 The factors include:

(a) the fact that its intervention brings about harm different in kind from

that which would otherwise have resulted from the actor's negligence;

(b) the fact that its operation or the consequences thereof appear after the

event to be extraordinary rather than normal in view of the circumstances existing

at the time of its operation;

(c) the fact that the intervening force is operating independently of any

situation created by the actor's negligence, or, on the other hand, is or is not a

normal result of such a situation;

(d) the fact that the operation of the intervening force is due to a third

person's act or to his failure to act;

(e) the fact that the intervening force is due to an act of a third person

which is wrongful toward the other and as such subjects the third person to liability

to him;

(f) the degree of culpability of a wrongful act of a third person which sets

the intervening force in motion.

Nunley, 727 F.2d at 464, quoting R ESTATEMENT (S ECOND ) OF T ORTS , § 442. R ESTATEMENT (S ECOND ) OF T ORTS § 442. 11 The court emphasized that:

The fact that an intervening act of a third person is negligent in itself or is done in a negligent

manner does not make it a superseding cause of harm to another which the actor's negligent

conduct is a substantial factor in bringing about, if

(a) the actor at the time of his negligent conduct should have realized that a third

person might so act, or

(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

(c) the intervening act is a normal consequence of a situation created by the actor's

conduct and the manner in which it is done is not extraordinarily negligent.

Nunley, 727 F.2d at 464–65, quoting R ESTATEMENT (S ECOND ) OF T ORTS § 447.

In sum, then, contrary to t he position advanced by ODECO and Conoco, N unley did not

abolish the doctrine of superseding negligence in marit ime cases and the doctrine retains its vitality.

See Nunley v. M/V DAUNTLESS COLOCOTRONIS, 727 F.2d 455 (5th Cir.) (en banc), cert. denied,

469 U.S. 832, 105 S.Ct. 120, 83 L.Ed.2d 63 (1984). In L one Star Indus., Inc. v. Mays Tow ing, Inc.,12 Lone Star noted this court's decision in Nunley, 727 F.2d at 455, and the Ninth Circuit's

decision of Protectus Alpha Navigation Co. v. North Pac. Grain Grow ers, 767 F.2d 1379, 1384

(9th Cir.1985) (court discussed superseding cause in dicta).

13 The Eleventh Circuit has rejected the application of superseding cause in maritime cases.

Under a "proportional fault' system, no justification exists for applying the

doctrines of intervening negligence and last clear chance.... Unless it can truly be

said that one party's negligence did not in any way contributed to the loss,

complete apportionment between the negligent parties, based on their respective

degrees of fault is the proper method for calculating and awarding damages in

maritime cases.... The doctrines of intervening negligence and last clear chance

should not be used to circumvent this "proportional fault' concept.

Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069, 1075 (11th Cir.1985) (citations

omitted). 927 F.2d 1453 (8th Cir.1991), the Eighth Circuit applied the doctrine of superseding negligence in

a marit ime case to relieve the prior actor of liabilit y. I d. at 1458. Before applying the doctrine of

superseding negligence, the Eighth Circuit examined the viabilit y of the doctrine and concluded that

it still applies in maritime cases. Id. at 1459. In so concluding, the Lone Star court noted that two

other circuits "seem to presume that superseding cause still applies." I d. 12 The court then expressly

rejected the Eleventh Circuit decision of Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069 (11th

Cir.1985), "[t]o the extent that Hercules holds that liabilit y for negligence which is a cause in fact of

injury—no matter how remote—cannot be cut off," 1 3 reasoning that is not compelled by Reliable

Transfer. The court also observed that there is no inconsistency between the doctrines o f

comparative fault and superseding cause. Id. at 1459.

We find that the negligence of ODECO and Conoco does not, as a matter of law, supersede

Varco's negligence. The summary judgment evidence reflects that, due to the frozen connection, the

ODECO crew applied progressively higher levels of force in an attempt to free the connection. While

the summary judgment evidence shows that Pittman knowingly exceeded the rated capacity of the

DB tongs—which broke and injured Donaghey—we fin d that the actions of the ODECO crew in

attempting to free the connection could not be regarded as highly extraordinary. We also find that

the actions of the ODECO crew was a normal consequence of the situation created by Varco and the14 This holding is also dispositive of Varco's request to impose sanctions on ODECO and

Conoco pursuant to Rule 38 of the Federal Rules of Appellate Procedure. Finding ODECO's and

Conoco's appeals are not frivolous, see Coghlan v. Starkey, 852 F.2d 806, 810–11 (5th Cir.1988),

we deny Varco's request for sanctions. manner in which the ODECO crew acted was not extraordinarily negligent. See Nunley, 727 F.2d

at 464–65, quoting R ESTATEMENT (S ECOND ) OF T ORTS § 447. Accordingly, we find that Varco failed

to establish as a matter of law that the actions of ODECO and Conoco constitute a superseding cause

of the accident under Nunley. We, therefore, hold that the district court erred in granting summary

judgment in Varco's favor. 14

III

For the foregoing reasons, we REVERSE and REMAND for trial.