(CN) - The 5th Circuit affirmed dismissal of emotional distress claims advanced by a welder who saw his best friend and co-worker fall to his death from a drilling rig.
Tragedy struck the Hercules Offshore drilling rig while Francis Barker Jr. and Thomas Broussard were dismantling an oil pan for Frank's Casing on the Outer Continental Shelf in the Gulf of Mexico on Jan. 28, 2008.
The men lost their footing after Broussard cut the straps that held the pan in place, sending it 100 feet to the ocean below. They had grabbed hold of a beam, but Broussard eventually lost his grip and fell into the water, hitting another beam on the way down.
Though Barker came out of the incident without any physical injuries, he said watching his friend die from the fall had such a traumatic impact on him that he later suffered a disabling heart attack and cerebral stroke.
Barker sued Hall-Houston Exploration, two of its subsidiaries and the rig owner with which it contracted, Hercules Offshore in Galveston County, but the case was removed to the Southern District of Texas.
U.S. District Judge Melinda Harmon granted the defendants summary judgment there in February 2012.
A divided appellate panel in New Orleans found Friday that removal had been proper under the Outer Continental Shelf Lands Act, and that the defendants were not liable.
"Because we have not decided whether Texas or maritime law applies to this dispute, we can only affirm the district court's grant of summary judgment if there is no genuine issue of material fact under either theory," according to the ruling written by Judge Edith Brown Clement and joined by Judge Catharina Haynes
"We find that there is none," Clement added.
In a 12-page dissent, Judge Patrick Higginbotham said maritime law does apply.
"Under the zone of danger theory, summary judgment in favor of the defendants was not proper," Higginbotham wrote. "Contrary to the conclusion reached by the majority opinion, the evidence before the district court on summary judgment created a genuine issue of material fact as to whether Barker was threatened imminently with physical impact. Barker testified that he was standing a mere two feet from the hole when the pan fell, and that he feared he was going to fall into the hole himself. Looking at the accident, we must ask what a reasonable trier of fact might conclude. With that cast of sight, this was a man standing two feet from certain death with no protective harness, stunned at witnessing his friend cling to a beam then fall to his death. An involuntary reach out and he, too, would have died. This is the stuff of a live trial, not a paper review. He was at least arguably within the zone of danger, and the final determination of that issue should have been left with the jury."
Higginbotham said he would have revived and remanded Barker's case.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.