IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20091

LARRY KITCHENS, 

 Plaintiff – Appellant,

v.

STOLT TANKERS B. V.; STOLT FOCUS B. V., 

 Defendants – Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-2088

Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.

PER CURIAM:*

In this case arising under the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), the district court granted summary judgment 

in favor of Defendants-Appellees and dismissed Plaintiff-Appellant’s claims in 

their entirety. We affirm.

I. FACTS & PROCEDURAL HISTORY

Plaintiff-Appellant Larry Kitchens is an experienced harbor worker and 

resident of Harris County, Texas. In 2014, Kitchens was employed as an 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 2, 2016

Lyle W. Cayce

Clerk

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Operations Supervisor for Westway Terminal (“the terminal”) in Houston, 

Texas, where he supervised various activities involving cargo operations 

between vessels and the terminal. At times, Kitchens’ duties as supervisor

required him to board vessels that were docked in the terminal. DefendantsAppellees Stolt Tankers, B.V. and Stolt Focus, B.V., (collectively, “Stolt”), own 

and operate the M/V Stolt Focus (“the Vessel”). On April 17, 2014, Stolt was

conducting cargo operations at the terminal. The record reflects that the cargo 

being unloaded by Stolt contained a liquid referred to as “fatty alcohol” or “veg 

oil.” At some point during the night, Kitchens determined that the cargo was 

being unloaded, or “pumped,” too slowly off of the Vessel. Consequently, at 

approximately 1:00 a.m., Kitchens boarded the Vessel to address the slow 

pumping rate. When he boarded the Vessel, Kitchens was accompanied by his 

co-worker, Zach Curtis, and a crewmember of the ship. According to the record, 

after boarding the Vessel, Kitchens advanced along the main deck and upstairs

to the Cargo Control Room without incident. After approximately ten minutes 

passed, Kitchens exited the control room and descended the stairs along the 

same path he had taken when he boarded the ship. According to Kitchens, 

when he stepped off of the stairs to the main deck, he took a couple of steps 

and then slipped and fell, enduring substantial injuries. He remained there 

for about a minute and then left the Vessel without assistance. Neither 

Kitchens nor any of the witnesses to the accident reported observing any type 

of foreign substance on the part of the deck where Kitchens fell. The record 

reflects that, after the accident, Kitchens failed to submit a company-mandated 

accident report and also waived his right to file a claim for compensation and 

benefits under the LHWCA. 

On May 23, 2014, Kitchens filed suit in state court against Stolt alleging 

negligence claims under the LHWCA. See 33 U.S.C. § 905(b). Stolt removed to 

federal district court pursuant to 28 U.S.C. § 1333 and moved for summary 

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judgment. The district court granted summary judgment in favor of Stolt and 

dismissed Kitchens’ claims. In its reasons for judgment, the district court 

concluded that Kitchens failed to prove that Stolt breached its “active control” 

and “turnover” duties under § 905(b) of the Act. See 33 U.S.C. § 905(b); see also 

Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 166–67 (1981). 

Kitchens filed this appeal.

II. STANDARD OF REVIEW

We conduct a de novo review of a district court’s grant or denial of 

summary judgment, applying the same standard as the district court. 

Robinson v. Orient Marine Co., 505 F.3d 364, 365 (5th Cir. 2007) (citation 

omitted). Summary judgment is appropriate if the record evidence shows that 

there is no genuine issue of material fact and that the moving party is entitled 

to judgment as a matter of law. Id. at 366; Fed. R. Civ. P. 56(a).

“Unsubstantiated assertions, improbable inferences, and unsupported 

speculation are not sufficient to defeat a motion for summary judgment.” See 

Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003) (citation omitted). 

“[R]easonable inferences are to be drawn in favor of the non-moving party.”

Robinson, 505 F.3d at 366 (citation omitted).

III. DISCUSSION

Kitchens’ sole argument on appeal is that the district court erred in 

dismissing his “active control” claim.1 See Scindia, 451 U.S. at 167. Kitchens 

contends that the Vessel’s walkway where he was injured was dimly lit and 

extremely slick. He submits that dangerous walkways of this sort are precisely 

the type of physical condition contemplated by Scindia as giving rise to a 

Section 905(b) claim. Kitchens concludes that he fell “because of accumulation 

 

1 Kitchens does not appeal the district court’s dismissal of his claim that Stolt 

breached its “turnover” duty under 33 U.S.C. § 905(b).

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of veg oil or other foreign substances on the walkway, the presence of water on 

the walkway that was not the result of dew or rain, the lack of a nonskid on 

the walkway, or some combination of these factors.”

Both parties agree that the LHWCA applies and provides Kitchens’ 

exclusive remedy against Stolt. Section 905(b) of the Act permits a covered 

maritime worker to recover damages for personal injury caused by the 

negligence of a vessel. See 33 U.S.C. § 905(b). In Scindia, the Supreme Court 

articulated the scope of a vessel’s duty under the Act, the underlying principle

being “that the primary responsibility for the safety of the longshoremen rests 

upon the stevedore.” See Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 

15 (5th Cir. 1992) (citation omitted); see also Scindia, 451 U.S. at 166–67. 

However, as this court has acknowledged, “[i]t is now well accepted that 

shipowners owe three narrow duties to longshoremen: (1) a turnover duty, (2) 

a duty to exercise reasonable care in the areas of the ship under the active 

control of the vessel, and (3) a duty to intervene.” Kirksey v. Tonghai Maritime, 

535 F.3d 388, 391 (5th Cir. 2008). 

Under the active control duty, “[t]he vessel has a duty to ‘exercise due 

care to avoid exposing longshoremen to harm from hazards they may encounter 

in areas, or from equipment, under the active control of the vessel during the 

stevedoring operation.’” Pimental, 965 F.2d at 16 (quoting Scindia, 451 U.S. 

at 167). Liability under the active control duty “is not relieved when the hazard 

is open and obvious.” Id. (citation omitted); see also Romero v. Cajun 

Stabilizing Boats, Inc., 307 F. App’x 849, 851 (5th Cir. 2009) (per curiam) 

(unpublished) (citation omitted). Neither party disputes that Stolt maintained 

exclusive control over the area of the Vessel where Kitchens’ fall occurred and,

consequently, that the active control duty exception could potentially apply

here. 

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As the district court correctly noted, liability under the active control 

duty is premised on the presence or existence of a “hazard” under the active 

control of the vessel. Pimental, 965 F.2d at 16. The record reflects that neither 

Kitchens nor any of the eye witnesses to the incident observed any type of 

foreign substance—open, obvious, or otherwise—on the area where Kitchens 

slipped, before or after the accident. Moreover, subsequent to his fall, Kitchens 

was unable to gather any direct or circumstantial evidence that there was a 

hazard on the walkway where he slipped. There was no evidence submitted 

that any of Stolt’s cargo leaked, dripped, or spilled at any time prior to the 

incident, or that any person tracked any type of slippery substance onto the 

walkway of the Vessel. Kitchens conceded that it had not rained the night of 

the incident. Only one witness to the incident observed naturally-occurring 

moisture due to humidity on the deck.2 None of the witnesses observed any

foreign substances on the deck.3 Although Kitchens points to the lack of a nonskid surface on the walkway where he fell, this court has not held that the lack 

of a non-skid surface alone is sufficient to give rise to a finding of liability under 

the active control duty exception.4 In addition, this court has not held, in the 

absence of an agreement to the contrary, that the vessel has a general duty to 

provide adequate lighting for longshoremen. See Dow v. Oldendorff Carriers 

 

2 Kitchens does not argue that the presence of naturally occurring moisture on a vessel 

is sufficient to give rise to a finding of liability under the active control duty exception.

3 The record reflects that Kitchens’ co-worker, Zach Curtis, originally signed an 

affidavit prepared by Kitchens’ attorney that there was something other than dew from 

humidity on the part of the deck where Kitchens fell. However, Curtis later recanted that 

affidavit, clarifying that he did not know if any substance was present on the deck where 

Kitchens fell. 4 Kitchens avers that the fact that he was wearing Red Wing work boots with slipresistant soles designed to maintain traction is somehow probative of the notion that the

walkway was slick and unreasonably dangerous. This statement, however, is nothing more 

than unsupported speculation and thus insufficient to defeat summary judgment. See Brown, 

337 F.3d at 541 (citation omitted).

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GMBH & Co., 387 F. App’x 504, 507 (5th Cir. 2010) (per curiam) (unpublished)

(citation omitted).

In light of his failure to produce any evidence of a hazard on the 

walkway,5 Kitchens’ conclusion that he slipped “because of accumulation of veg 

oil or other foreign substances on the walkway, the presence of water on the 

walkway that was not the result of dew or rain, the lack of a nonskid on the 

walkway, or some combination of these factors” is nothing more than

unsupported speculation and therefore insufficient to defeat a motion for 

summary judgment. See Brown, 337 F.3d at 541 (citation omitted)

(“Unsubstantiated assertions, improbable inferences, and unsupported 

speculation are not sufficient to defeat a motion for summary judgment.”).

For these reasons, we conclude that the district court did not err in 

concluding that Kitchens failed to show that there was a genuine issue of

material fact with respect to his active control claim, thereby entitling Stolt to 

summary judgment as a matter of law. Robinson, 505 F.3d at 366.

IV. CONCLUSION

For the aforementioned reasons, we affirm the district court’s summary 

judgment. 

 

5 Kitchen submits in his brief that the district court misapplied the law because it is 

well-settled in this circuit that an open and obvious hazard does not work as an absolute bar 

to a harbor worker’s active control claim. However, in light of our conclusion that Kitchens 

has failed to produce evidence of any hazard, we do not reach the issue of whether such 

hazard was open or obvious. Pimental, 965 F.2d at 16 (citing Romero, 307 F. App’x 851) (per 

curiam) (unpublished) (citation omitted). 

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