Opinion
CIV. NO. 97-3170 SECTION "N".
April 4, 2000
ORDER AND REASONS
Before the Court is defendant Oryx Energy Company's ("Oryx") Motion for Summary Judgment. For the following reasons, defendant's Motion is GRANTED.
BACKGROUND
This dispute arises out of alleged injuries to plaintiff Herman Fields as a result of an accident on or about February 26, 1997. Fields was employed by Pool Company ("Pool") as a roughneck/deckhand. On November 19, 1996, Pool entered into an independent contractor relationship with Oryx under an agreement to provide drilling services. On the date in question Pool employees were working aboard platform Rig No. 10, assembled on the Neptune Spar, a floating platform located 100 miles of the coast of Alabama on the Outer Continental Shelf ("OCS"). The Neptune Spar is owned by defendant Oryx. Plaintiff alleges that he sustained injuries while assisting in removing a rotary bushing that became jammed in the rig, when the bushing pulley slipped out and struck Fields in the face.
Plaintiff's original state court petition incorrectly named Pool Company as Pool Offshore, Inc.
Plaintiff filed suit in state court alleging claims of unseaworthiness and negligence against Pool and Oryx on August 27, 1997. On October 8, 1997, plaintiff's petition was removed to this Court. Plaintiff filed subsequently a Motion to Remand, which this Court denied on December 5, 1997. Pool then filed a Motion for Summary Judgment, which this Court granted on February 2, 1998. After obtaining a Rule 54(b) judgment, plaintiff appealed this Court's dismissal of defendant Pool. On July 27, 1999, the Fifth Circuit Court of Appeals affirmed this Court's ruling. On February 22, 2000, the Supreme Court denied plaintiffs petition for a writ of certiorari. Now before the Court is a Motion for Summary Judgment by the sole remaining defendant, Oryx.
STANDARD OF REVIEW
Summary Judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To oppose a motion for summary judgment, the non-movant must set forth specific facts to establish a genuine issue of material fact, and cannot merely rest on allegations and denials. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2552. Factual controversies are to be resolved in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
LAW AND ANALYSIS
Oryx moves this Court to enter summary judgment in its favor on the ground that Oryx was neither negligent in causing plaintiffs accident, nor responsible for the negligence of any other party, including defendant Pool, Oryx's independent contractor. Neither party disputes that the incident in question took place aboard the Neptune Spar while located on the OCS off the Alabama coast. Because Alabama tort law is not inconsistent with federal law, under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1333, et seq., Alabama substantive law governs the claims before this Court. See id.; see also Garde Directional Drilling v. United States Turnkey Exploration Co. 98 F.3d 860, 864-66 (5th Cir. 1996).
Oryx asserts that the issue central to a determination of summary judgment is "whether a premises owner owes a duty to an independent contractor to protect him and his employees from harm arising out of the workplace." Under Alabama law, a premises owner is not liable for the torts committed by an independent contractor. See Thompson v. City of Bayou La Batre, 399 So.2d 292, 294 (Ala. 1981). Nor does a premises owner owe a general duty of care to employees of independent contractors with respect to work done under a contract. See Ramirez v. Alabama Power Co., 898 F. Supp. 1537, 1542 (M.D. Ala. 1995), aff'd, 86 F.3d 1170 (11th Cir. 1996). The premises owner simply has the duty to provide reasonably safe premises when the employees begin work.See id.; Barron v. Construction One, 515 So.2d 1351, 1353 (Ala. 1987). Only if the premises owner retains or reserves the right to control the performance of work by the independent contractor, does the owner become liable to the employees. See Ramirez, 898 F. Supp. at 1542; Pate v. United States Steel Corp., 393 So.2d 992, 994 (Ala. 1981); Thompson, 399 So.2d at 294; Hughes v. Hughes, 367 So.2d 1384 (Ala. 1979). Where the premises owner neither owns the equipment used to perform the work, controls the equipment, nor has knowledge of the way in which equipment is used, it is not liable to the employees of an independent contractor. See Ramirez, 898 F. Supp. at 1538; Barron, 515 So.2d at 1353. Alabama courts look to two types of evidence to determine whether a premises owner controls the work performed by an independent contractor: (1) contractual terms; and (2) conduct of the premises owner. See Ramirez, 898 F. Supp. at 1542; Tittle v. Alabama Power Co., 570 So.2d 601, 603 (Ala; 1990); Proctor Gamble Co. v. Staples, 551 So.2d 949, 953 (Ala. 1989); Pugh v. Butler Tel. Co., 512 So.2d 1317 (Ala. 1987).
Here, Oryx points the Court to several provisions of the contractual agreement between Pool and Oryx under which Pool agreed to perform drilling services aboard Oryx's Neptune Spar. The contract grants Pool complete authority over its operations aboard the platform, stating that Pool shall be "solely responsible for the operation of the Drilling Unit, including without limitation, supervising moving operations, positioning on drilling locations . . . as well as such operations on board the Drilling Unit as may be necessary or desirable for the safety of the Drilling Unit." Domestic Daywork Drilling Contract (the "Contract") dated November 19, 1996, § 7(c) entitled "Operations of Drilling Unit." The Contract also states expressly that Pool is an independent contractor. See id., § 10 entitled "Independent Contractor." Overall, the Contract indicates no reservation of rights by Oryx over Pool's performance of drilling activities. Rather, it states, "[t]he entire performance, operations, management and control of the Drilling Unit and other items of [Pool's] Equipment shall be under the exclusive control and command of [Pool]." See id. Thus, the agreement between the parties provides that Pool was solely responsible for drilling operations. There is no indication that Oryx retained the right to control or command the work activities of Pool employees aboard the Neptune Spar. Under the standard set forth in Proctor Gamble, requiring plaintiff to prove "that the defendant exercised control over the job site and control over the manner in which the work was to be done, and prove either that the work was intrinsically dangerous or that the defendant had undertaken to provide safety on the jobsite," the Court finds that defendant Oryx cannot be held liable as a matter of law. 551 So.2d at 953 (citations omitted). The contract terms simply do not evidence a relationship between the parties other than that of premises owner and independent contractor.
The Court also considers the conduct of Oryx. Here, Oryx asserts that it was solely Pool's duty to perform all drilling work, and thus because Oryx did not retain or exercise control over such work, it is not liable under negligence theory. In support of this contention, Oryx offers affidavit testimony of Jody Bordelon, Pools' toolpusher, who testifies that no Oryx personnel participated in the decision-making process to remove the bushing involved in Fields' accident, and that all equipment involved in the accident was owned and operated by Pool. Further, Bordelon testifies that the platform, owned by Oryx, played no part in causing or contributing to plaintiff's accident, other than being the location at which the accident occurred. Finally, Bordelon testifies that there were no Oryx employees on the rig floor or involved in the operations taking place on the rig floor at the time of plaintiff's accident. Based on this testimony, Oryx argues that there are no issues of material fact as to whether Oryx retained or exercised control over the work and employees involved in plaintiff's accident.
Oryx also submitted an additional affidavit by Kevin Owens, another Pool employee who was present on the platform on the date of plaintiffs injury, which presents testimony identical to that of Bordelon.
In opposition, Fields does not contest that Pool was an independent contractor in relation to Oryx. In fact, plaintiff admits that Pool operated the drilling rig attached to the Neptune Spar. Instead, plaintiff asserts that there exists a genuine issue of material fact as to whether Oryx negligently failed to warn plaintiff of the absence of a stabilizer on the Neptune Spar. Plaintiff claims that Oryx owed a duty to disclose such a hidden danger, as the absence of a stabilizer contributed to the accident by increasing tension on the jammed rotary and causing unusual rotation of the platform. In support, plaintiff cites the Ramirez decision, wherein the court noted that where "the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor and if he does not do this, of course, he is liable for resultant injury." 898 F. Supp. at 1547 (quotations and citations omitted); see also Glenn v. United States Steel Corp., 423 So.2d 152, 154 (Ala. 1982). Plaintiff argues that Oryx failed to produce any evidence to contradict Fields' testimony on the stabilizer issue (including his interrogatory response which stated that the newly designed platform was supposed to have a stabilizer to reduce the effect of sea and wind), and thus failed to show that: (I) Pool was aware that Oryx failed to install the stabilizer which could have minimized the movement of the Neptune Spar; and thus (2) the Neptune Spar itself played no role in causing Fields' injuries. In support of his opposition, Fields submits an affidavit stating that "the movement of the Neptune Spar contributed to the jammed rotary bushing hitting him in the face," and that he was not informed that such movement could place additional stress on a jammed rotary.
In reply, Oryx argues that the evidence before the Court satisfies Oryx's burden of proof that it is entitled to summary judgment. Oryx contends that the affidavit testimony of Pool employees indisputably proves that the Neptune Spar itself played no part in plaintiffs injuries. Oryx characterizes plaintiff's argument as an unsupportable allegation of a self-serving nature. The Court agrees that Fields fails to present any evidence in support of the argument that the Neptune Spar had a "missing" or "defective" stabilizer. His conclusory allegations are simply insufficient to meet his burden on summary judgment. Plaintiff also fails to offer evidence in support of the allegation that the Neptune Spar moved horizontally and/or vertically under the wind and sea conditions and that this placed additional stress on the jammed rotary. Fields could have presented sea logs, drawings of the platform design and/or expert testimony relating to the stabilizer issue. Reliance on supposition, however, is not enough, especially in light of affidavit testimony to the contrary — that the Neptune Spar played no role in plaintiff's accident. Moreover, it is likely that any employee who worked with rotary bushing would know of the consequences that can occur upon platform movement under sea and wind conditions.
Finally, Oryx anticipates that Fields will argue that the presence of Larry Franklin, Oryx's "company man" aboard the platform at the time of injury gives rise to a genuine issue of fact as to whether Oryx should be held responsible for the actions of Pool aboard the platform. Nonetheless, Oryx asserts that Franklin's affidavit reveals that he was not involved in any way in the decision to remove bushing. In addition, Oryx asserts that Franklin had no supervision or control over Pool employees. Oryx argues that Franklin's affidavit provides additional evidence in support of the assertion that there are no issues of material fact as to whether Oryx retained or exercised control over Pool's work and employees.
The Court notes that Fields does allege that Franklin, Oryx's "company man," was present on the rig floor before, during, and after his accident. Mere presence, however, is insufficient to establish the extent of control required to establish liability, as presence is not equivalent to supervision or even knowledge or participation in drilling activities. Moreover, Fields' interrogatory response indicates that he was instructed by a Pool employee to attempt to release the jammed rotary, and also that the Pool employee placed pressure on the bushing as Fields attempted to unloosen the rotary. Such statements, in addition to the facts that plaintiff did not take orders from any Oryx employee, and worked with equipment supplied and operated by Pool employees, lead the Court to conclude that no issue of material fact exists as to whether Oryx retained or exercised control over Pool's work operations. While the evidence presents a dispute over whether Franklin, Oryx's "company man," was present on the rig floor at the time of plaintiffs accident, the evidence simply does not show that Franklin exercised or reserved operational control over Pool or Fields during the activities that caused plaintiffs injuries. It is uncontested that Franklin was not involved in the bushing removal operation in any way. Further, there is no evidence of instruction, supervision, or equipment provision by Oryx to indicate that Oryx's participation on drilling activities involved anything more than ownership of the premises on which such activities were performed. Thus, the Court finds that there is insufficient evidence of control by Oryx or retention of the right to control the manner of work performed by Pool employees. In the absence of such evidence, summary judgment in favor of Oryx is appropriate.
Accordingly,
IT IS ORDERED that defendant's Motion is GRANTED.
New Orleans, Louisiana, this 3 day of April, 2000.