Opinion
CIVIL ACTION NO. 99-1418 c/w 99-2548 SECTION "A".
April 13, 2000.
ORDER AND REASONS
These consolidated actions involve an accident on an offshore oil platform owned by defendant Amoco, on which was mounted a drilling rig owned by defendant Sundowner. In action number 99-1418 the Brunet plaintiffs [collectively "Brunet") sued Sundowner and Amoco; and in action number 99-2548 the Williams plaintiffs [collectively "Williams"] sued Amoco. Before the Court are several motions.
Defendants Amoco Production Company and BP Amoco Production Company are referred to collectively as "Amoco."
Sundowner Offshore Services, Inc.
Randy Brunet and Tammy Brunet, his wife, suing for themselves and for their children.
Vincent Williams and Peggy Williams, his wife.
Sundowner and Brunet have filed cross-motions for summary judgment. Amoco seeks summary judgment as to all claims against it. Williams opposes Amoco's motion; but Brunet does not, having voluntarily dismissed his claims against Amoco with prejudice after Amoco filed the motion for summary judgment. Amoco moves for reconsideration of the Court's granting of Brunet's motion to dismiss, seeking a judgment on the merits as to Brunet's claims. Sundowner opposes that motion for reconsideration.
For reasons explained infra, the cross-motions of Sundowner and Brunet are DENIED; and the motions of Amoco for reconsideration and for summary judgment are GRANTED.
All parties have submitted documentary evidence. In the following recitation of facts, the non-movants' evidence is accepted as true and all inferences are drawn in the non-movants' favor.
As to all the motions, the parties have submitted partial or complete transcripts of the depositions of plaintiffs Randy Brunet and Vincent Williams and of witnesses Johnny Howard, Jerry Clark and Franklin Moak. For simplicity the Court refers to the complete depositions submitted by Brunet with his motion for summary judgment. Deposition testimony is identified by the name of the deponent and the relevant page of his deposition, i.e., "Name n."
Specifically related to the Sundowner/Brunet cross-motions. Sundowner submitted the Brunets' complaint; and Brunet submitted photographs of the accident site, his own medical records, records of the Coast Guard, and the Brunets' requests for admissions directed to Sundowner and Sundowner replies thereto.
Specifically related to Amoco's notion, Amoco and the Williams each submitted the deposition of Max Binford; Amoco submitted an affidavit with the Amoco/Sundowner contract and other documents attached, its request for admissions to the Williams and their response, and a one-page judgment in the Rials' case against Amoco in Mississippi; and the Williams submitted Amoco accident reports regarding the accident and another copy of attachment "C" to the Amoco/Sundowner contract.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986).
BACKGROUND
The background facts are undisputed and will be recited briefly, without reference to sources. A detailed recitation of facts relevant to the motions will follow. All relevant facts are undisputed.Sundowner contracted to perform a workover on the Amoco platform. Sundowner's drilling rig had to be lifted onto and attached to the platform and then detached and removed when the workover was complete. Amoco's platform crane was inadequate for the lifting of the rig; so Sundowner temporarily provided its own crane for that purpose. It was during the final dismantling of Sundowner's crane that the accident at issue occurred. When the Sundowner crane's "power pack" was disconnected from the crane, it fell to the platform deck below, causing a death and injuries.
FACTS
Amoco and Sundowner executed an Offshore Workover Contract, for Sundowner's work on an Amoco platform. The contract was amended to provide that Sundowner would perform work on the same terms on a second platform, the site of the accident at issue. The contract provided that Sundowner was an independent contractor; that "AMOCO shall have no direction or control of CONTRACTOR, or its employees or agents, except in the results to be obtained;" that Amoco had the right to inspect Sundowner's operations and that it would have a representative to determine whether Sundowner was performing according to the contract.
Amoco Aff Ex.A. — Contract.
Amoco Aff. EX.B.
Contract, paragraph 4, which reads in full:
4. CONTRACTOR shall be an independent contractor with respect to all work done and services performed hereunder, and neither CONTRACTOR nor anyone used or employed by contractor shall be deemed for any purpose to be the agent, servant or representative of AMOCO in the performance of such work or services or any part thereof, or in any matter dealt with herein, and AMOCO shall have no direction or control of CONTRACTOR, or its employees or agents, except in the results to be obtained. AMOCO shall have the right to inspect in any manner it may elect such operations and shall have access to the Rig and its associated equipment at all times for the purpose of determining whether operations are being performed in accordance with the terms of this agreement. If said operations do not meet the provisions thereof or are not being performed thereto AMOCO shall so notify CONTRACTOR and CONTRACTOR, as soon as possible, shall perform the remedial operations required to comply therewith. For these purposes. AMOCO shall designate a representative, but the sole function of said representative shall be to determine whether CONTRACTOR has performed in accordance with the contract and in compliance with the specifications.
Under the contract, Sundowner was responsible for "the maintenance of strict discipline and safety;" and Sundowner was required to perform a monthly rig inspection, for which Amoco provided a suggested form, which included some safety items.
Contract, sections 8.c and 8.q and exhibit "C."
Max Binford was Amoco's representative on the platform to monitor Sundowner's performance and to coordinate the work. He provided daily reports to Amoco of the work done. Binford never gave orders to any Sundowner employee regarding the workover. Without being required to, Binford sometimes attended and made comments in safety meetings arranged by Sundowner for Sundowner personnel. Amoco was concerned about safety on the platform. A Sundowner procedure required Sundowner supervisors to give "STOP" cards to Sundowner employees working unsafely. Amoco may have required Sundowner to use the STOP cards, but Binford never filled out or signed one. Binford would not have personally stopped unsafe practices he might have seen; but had he seen any, he would have gone to a Sundowner toolpusher. Binford never had a worker removed for unsafe work practices; and never ordered Sundowner employees to engage in unsafe practices.
Binford 17-18, 76, 113-114, 136.
Binford 78.
On one occasion Binford asked a passing Sundowner roustabout for water. On another he asked the same roustabout to make sure that Sundowner work did not damage a particular wire on the platform. Williams 79-86.
Binford 29, 118-119; Howard 47, 130; Moak 69.
Binford 43-44.
Binford 46-47, 112-113.
Binford 46-47; but see Binford 123, stating that Amoco did not require the cards.
Binford 47, 115; Clark 51; Moak 24, 26.
Binford 49, 140; Clark 52; Howard 123; Moak 49. Plaintiff suggests Binford's deposition testimony was "self-serving;" and a "jury may determine based on its review of the above facts that Mr. Binford in fact played a greater role in this matter than he opined." Credibility is not an issue on these motions; and Williams has presented no evidence that Binford's role was greater than as represented in his deposition, which comports with the other depositions.
Plaintiff Vincent Williams was a Sundowner roustabout, supervised by Sundowner employees — crane operator Jerry Clark and toolpusher Johnny Howard. Plaintiff Randy Brunet was a welder employed by Cajun Cutters, a sub-contractor. He was supervised and directed by toolpusher Howard; and he received no orders or direction from Binford.
Brunet 84.
By June 2, 1998, Sundowner had completed the workover and had removed its rig from the platform. On that date, the Sundowner crane was to be dismantled and taken away. The dismantling was done by Sundowner employees, directed by Sundowner toolpusher Howard. Binford did not direct the work or workers during the dismantling. The Amoco platform crane was used during the dismantling, but was operated by Sundowner crane operator Clark. During the day of the dismantling of Sundowner's crane, two Sundowner drillers, Kevin Amos and Samuel Rials, went onto the crane and detached its boom without a problem.
Howard 36; Binford 120-121.
Howard 20.
Binford 116, 133-135: Howard 66.
Binford 80-81; Clark 16-17, 51; Williams 89-90; Howard 121-124; Moak 24-26. 28, 48-49.
Binford 39, 70-71; Clark 20, 45; Howard 124; Moak 8.
Howard 51-52.
Just before the power pack was to be disconnected from the Sundowner crane, toolpusher Howard conducted a safety meeting with crane operator Clark and with Amos and Williams, who were to do the disconnecting. Rials, who also was to work on the power pack, did not attend the meeting. At the meeting, Howard explained that the power pack should not be detached from the Sundowner crane until it was supported by the Amoco crane, because the power pack would fall over without such support. Amoco's Binford and the Sundowner supervisors (Clark, Howard and another toolpusher) thought it was common knowledge that the power pack had to be supported before it was disconnected.
Howard 38-39, 60-61; Clark 37. There is a factual dispute about Williams' attendance. He averred at his deposition he did not attend the meeting. Williams 123-124, 135-136, 264. That discrepancy is irrelevant to these motions.
Howard 38-39.
Howard 39; Clark 40, 83. The written Job Safety Analysis for the dismantling provided that the power pack had to be supported before it was disconnected; but that written procedure had already been loaded with other equipment onto a boat. Howard 43-44.
Binford 31-32; Howard 46, 60-61; Moak 21, Clark 37, 42.
After Amos, Rials and Williams climbed onto the Sundowner crane to detach the power pack, Rials and Amos said they did not know how to do the job. Williams did not know how to do it, and it was not visually obvious to him that the power pack was unbalanced and could tip over.
Clark 20; Howard 51-52, 67; Williams 72, 90; Binford 81-82.
Williams 120-123. The deposition testimony of Williams is the only proffered evidence of what occurred on the power pack.
Williams 115-117, 123-124, 133, 258.
At that point, Sundowner's Clark was in the Amoco crane, attending to a disconnected part of the Sundowner crane which was lying on the platform. Amoco's Binford and Sundowner's Howard were watching work on the parts of the crane lying on the deck. Plaintiff Brunet was under the support pedestal for the Sundowner crane, cutting the welds holding it to the platform.
Howard 67-68; Clark 45.
Binford 37-38, 89, 101, 130; Howard 130. Binford expected to advise Amoco in his daily report that all of Sundowner's equipment was off the platform. Binford 78.
Brunet 9, 12-13; Binford 63; Williams 76.
On the power pack, and without its being supported by the Amoco crane, the three men knocked out three of the four "pins" connecting the power pack to the Sundowner crane; and Amos began to hammer on the fourth. The men on the platform deck did not hear the hammering because a loud air wrench was in use nearby.
Williams 137-130, 247.
Howard 156; Moak 44.
When the fourth pin came loose, there was a noise and the power pack tilted toward its heavy end, tipped over and fell off the crane. Rials was thrown off the platform and into the water. Williams' foot caught in a railing and he was suspended over the water until he was rescued by Sundowner men in a personnel basket. Amos fell to the deck of the platform.
Williams 140; Howard 53.
Williams 145, 147.
Williams 143.
Binford and Howard heard the a noise and looked to see the power pack falling to the deck. Clark, in Amoco's crane, heard a shout and watched the power pack and Amos fall to the deck.
Howard 53; Binford 38-39.
Clark 46.
Brunet, under the Sundowner crane's pedestal, was unaware of the power pack's falling until he felt and heard it strike the deck ten to twelve feet behind him. He was not struck or physically injured. He ran away from the noise of the impact but was stopped after about six feet. He turned, looked back, saw the power pack lying on the deck and picked up his welding torch and turned it off. He saw Amos and an injured roustabout lying on the deck, saw William hanging over the edge of the platform, and learned that Rials had been thrown overboard.
Brunet 8, 71, 74, 83-84.
Brunet 9, 15.
Brunet 8, 74.
Brunet 10-11, 35-36.
Brunet 34, 86-87. He did not know the names of the men he saw.
Rials' body was never recovered. The injured men were transported to hospitals. Howard later questioned Amos as to why the connecting pins were removed before the power pack was supported by the Amoco crane. Amos replied, "I thought it would sit there."
Howard 54.
PLAINTIFFS' INJURIES
Plaintiff Williams suffered a broken leg, extensive bruising on his back, and exploratory surgery on his abdomen. After his release from the hospital, he continued to disabled by his leg and by back problems. He had trouble sleeping and realized that he had a new fear of water and heights. He has had treatment for his physical and psychological problems. Williams would like to return to work, but because of his back he can perform only light duty work. He has unsuccessful tried to find such jobs near his home.Plaintiff Brunet complained to a doctor about chest pains about a week after the accident. That doctor diagnosed Posttraumatic Stress Disorder, as did a psychiatrist Brunet began seeing. The "hardest part" of Brunet's memories of the accident is the injured men lying on the deck. His continuing and daily problems are: short attention span, memory problems, nervousness ("hypervigilence" in the medical record), lack of sleep, nightmares, a short temper and a diminished sex drive. (The diminished sex drive might be an effect of his prescribed drugs.) He twice tried to return to work at Cajun Cutters, but every time he put on his face shield he experienced flashbacks to the accident. No doctor has advised him he cannot go to work. He wants to return to work; and Cajun Cutters might put him to work in a position where he would not have to use a face shield.
Brunet 47.
Brunet 47.
Brunet 52-53.
Brunet 101.
Brunet 71-72.
Brunet 73.
Brunet 57.
Brunet 56.
Brunet 109, 112-113.
LAW
Summary judgment is required if there are no genuine issues of material fact and the movant is entitled to a judgment as a matter of law. The substantive law governing the action will identify the material facts. The accident at issue occurred over the outer continental shelf off the coast of Louisiana. This action is governed by the Outer Continental Shelf Lands Act, which adopts the law of the nearest state as federal law. That substantive law will identify the facts material to these motions. Plaintiffs' claims allege negligence and are governed by La.Civ. Code art. 2315, which provides, "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." As stated by the Louisiana supreme court:
The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element]; (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). The first element is usually a judge question, and the other four are usually jury questions unless reasonable minds could not differ.
Fowler v. Roberts, 556 So.2d 1, 4-5 (La. 1989)
DISCUSSION
Cross-motions of Sundowner and BrunetIn Sundowner's motion for summary judgment against Brunet, the main contention is that Brunet may not recover because he was not in the "zone of danger," as is alleged in his complaint. Brunet, in his motion for summary judgment against Sundowner, asserts that all the elements of negligence under article 2315 are satisfied by the facts of this accident.
Whether Brunet was in the "zone of danger" of the accident is irrelevant. In order to eliminate spurious claims for emotional distress, the zone of danger test is used in some jurisdictions to limit such recoveries to claimants who were physically threatened by the danger at issue. Louisiana courts never adopted that limiting test. In Louisiana, emotional distress claims are governed by article 2315, supra, and the standard duty-risk analysis is used to consider such claims.
Lejeune v. Rayne Branch Hospital, 556 So.2d 559, 564 (La. 1990)
Ibid.
556 So.2d at 566. In addressing the zone of danger contention, the parties have discussed several opinions of federal and state courts in Louisiana which have applied the zone of danger test to actions which arose under federal law (the Jones Act and general maritime law] and not under state law. Gaston v. Flowers Transportation, 866 F.2d 816 (CA5 1989); Plaisance v. Texaco, Inc., 966 F.2d 166 (CA5 1992); Ainsworth v. Penrod Drilling Corp., 972 So.2d 546 (CA5 1992); Gibbs v. Petroleum Helicopters, Inc. 629 So.2d 437 (La.App. 3d Cir. 1993); Anselmi v. Penrod Drilling Corp., 813 F. Supp. 436 (E.D.La. 1993). Other Louisiana cases have applied the zone of danger test to actions arising under state workers compensation law, which has its own statutory zone of danger provisions, Edwards v. Louisiana Forestry Commission, 60 So.2d 449 (La. 1952); Blake v. Fidelity Casualty company of New York, 169 So.2d 608 (La.App. 2d cir. 1964); Harris v. Sears, Roebuck Company, 485 So.2d 965 (La.App. 5th cir. 1986); and Bonin v. Bon Electrical Contractors, Inc., 567 So.2d 766 (La.App. 3d cir 1990); or to cases involving mass toxin torts, in which persona a great distance from the explosion or chemical discharge could not recover for emotional distress, Harper v. Illinois Central Gulf Railroad, 808 F.2d 1139 (CA5 1987); McDonald v. Illinois Central Gulf Railroad Company, 546 So.2d 1287 (La.App. 1st Cir. 1989); Rivera v. United Gas Pipeline Company, 697 So.2d 327 (La.App. 5th Cir. 1997); and Dumas v. Angus Chemical Company, 728 So.2d 441 (La.App. 2d Cir. 1999). Otherwise, only in Gaynor v. Seats Farm, 727 So.2d 1279 (La.App. 4th Cir. 1999), cited by Brunet, has a Louisiana appellate court addressed whether a plaintiffs recovery was limited by the zone of danger test, Plaintiff Gaynor alleged she was within zone of danger of an accident and the trial court ruled against her on that issue. After stating that the zone of danger had a "nebulous" nature under Louisiana law, and after discussing some of the Jones Act cases cited supra, the appellate court found that, in any event, the plaintiff was not within the zone of danger. The anomalous Gaynor will not support a finding that the zone of danger test is a standard element of Louisiana tort law.
It must be noted at the start of this discussion that Brunet cannot recover for his viewing of the injured men. Emotional distress damages may not be recovered for witnessing physical injury to another unless the injured person was a close member of the family of the person claiming emotional distress. Brunet was not a member of the family of any of the injured men.
Lejeune, supra, and La.C.C. art. 2315.6.
The issue is whether Brunet may recover for the emotional distress caused by the falling of the power pack near him. Anything he saw or learned after the impact is irrelevant to these motions. With that in mind, the first, second and fifth elements of the duty-risk analysis are present in this case.
The first element, duty, refers to a duty under the law, and to the standard of care expected of a "reasonable person in like circumstances." It is undisputed that a reasonable person would have ensured the power pack was supported before it was disconnected. The experienced persons present knew of that requirement; and at least one person (Amos) who actually did the work had been specifically advised of that requirement. Sundowner had a duty to disconnect the power pack in that safe manner.
Fowler, supra, 556 So.2d at 6: Joseph v. Dickerson, ___ So.2d ___, ___, 2000 WL 41250 **3 (La. Jan. 19, 2000).
It is undisputed that Sundowner personnel improperly disconnected the power pack, so Sundowner breached its duty in that regard. The second element of the duty-risk analysis, breach of duty, is satisfied.
Regarding damages, the fifth element, Brunet's allegations of his emotional and psychological condition are undisputed. Therefore, it appears that the fifth element of the duty-risk analysis is satisfied.
There are, however, factual issues as to the third and fourth elements. As to the third element, cause-in-fact, Sundowner disputes whether the accident caused Brunet's damages, and has presented evidence that before the accident Brunet had suffered emotional problems and that he had been near loud and unexpected noises on platforms without suffering emotional distress.
In Moresi v. Wildlife and Fisheries, the state supreme court discussed prior Louisiana cases in which such damages had been awarded, and observed that the situations of those cases
Moresi v. State Department of Wildlife and Fisheries, 567 So.2d 1081, 1095, 1096 (La. 1990).
One of those cases, Klein v. Medical Building Realty, was factually similar to the instant action. In Klein, the plaintiff suffered severe psychological problems after plaster fell from a ceiling in his office; and the appellate court affirmed an award of damages for emotional distress, despite the fact that the plaintiff may not have been struck by the plaster.
have in common the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim [of mental distress] is not spurious."
Moresi, supra, 567 So.2d at 1095-1096.
Whether Brunet's damages were caused by the accident on the platform, whether the claim "is not spurious," will require assessments of credibility. Such assessments are appropriate for trial, not for a summary judgment proceeding.
The fourth element of the duty-risk analysis, scope of liability or protection, "assumes that a duty exists" under the law and "questions whether the plaintiff's injury was one of the risks encompassed by the . . . law which imposed the duty." Determining this element in this action will require a determination of whether Sundowner's legal duty encompassed a requirement that Sundowner protect Brunet from emotional distress arising from the negligent dropping of the power pack. This scope of liability or protection element is usually determined by the jury, and will be reserved for the jury in this matter.
Fowler, supra, ibid.
In sum, based on the evidence presented, Brunet may be able to recover damages for emotional distress from Sundowner, but that is not certain. Therefore, the cross-motions of Sundowner and Brunet for summary judgment are denied.
Motion of Amoco for reconsideration of dismissal
Amoco moves the Court to vacate the order granting the motion of Brunet to voluntarily dismiss his claims against Amoco with prejudice. Amoco seeks a ruling on the merits of Brunet's claims in connection with it motion for summary judgment.
The Amoco/Sundowner contract contains a provision that Sundowner will defend and indemnify Amoco for any claims arising from the workover. However, under La.R.S. 9:2780(A) and Meloy v. Conoco, an oil company may recover its defense costs from a contractor pursuant to such a contractual provision only if it is found on the merits that the oil company was without fault in causing the injury at issue. Sundowner has declined to stipulate that the voluntary dismissal of Brunet's claims with prejudice is a judgment on the merits. Therefore, Amoco is concerned that unless the Court finds Brunet's claims to be without merit in this action, the merit of those claims will have to be litigated in a second action between Amoco and Sundowner regarding the cost of defense.
Meloy v. Conoco, Inc., 4817 F.2d 275 (CA5 1987).
Though Brunet has dismissed his claims against Amoco, the Court must address Amoco's summary judgment motion in connection with plaintiff Williams' claims. As will be seen infra, if Williams' claims have no merit, Brunet's identical claims against Amoco would also be meritless. Sundowner does not dispute that matter. Concern for the resources of the Court and of the parties dictates that there should be no wasteful second litigation of identical issues. Accordingly, Amoco's motion for reconsideration is granted. The Court's finding regarding plaintiff Williams' claims will be a finding on the merits as to plaintiff Brunet's claims against Amoco.
Motion of Amoco for summary judgment
Amoco contends that as the principal to the workover contract it cannot be liable to Brunet or Williams. In considering this motion, the Court assumes, without deciding (see discussion supra), that the negligence of Sundowner caused the injuries of plaintiffs.
In opposition to Amoco's motion, Williams asserts that Amoco may be liable because its representative was on the platform and reported to Amoco; Amoco required Sundowner to stop its employees who were not working safely; Binford attended safety meetings for Sundowner employees; and Binford was present when the crane was being dismantled.
Williams also asserts that Amoco personnel filled out reports "to critique the safety and performance of Sundowner employees." That is factually incorrect. Amoco did not complete the forms to which plaintiff refers. Sundowner did. The contract required Sundowner to perform monthly inspections. The report forms are an attachment to the contract as an example of the inspections required. Plaintiff also points out that Amoco employees produced accident reports after the accident and that Amoco held an investigatory meeting regarding the incident at issue. Those post-accident events are irrelevant to the issues of Amoco's negligence, if any, or to whether it retained control of Sundowner's operations.
Amoco's motion is based on well-settled principles. This lawsuit arises from work performed pursuant to a contract between a principal (Amoco) and an independent contractor (Sundowner), so Amoco may be liable for its own acts of negligence; but is not liable for the negligent acts Sundowner unless Amoco retained operational control over Sundowner's acts or expressly or impliedly authorized those acts.
Graham v. Amoco Oil Company, 21 F.3d 643, 645 (CA5 1984) and oases cited therein. Amoco would also be liable for Sundowner's acts if the suit arose from an untrahzardous activity, but drilling is not an ultrahazardous activity. Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 550 (CA5 1987).
As relevant, the contract provided that the work and the safe performance of it were Sundowner's responsibility. Amoco was interested only in the results. The evidence shows that Binford had no control of Sundowner employees or operations. He never gave orders to Sundowner employees regarding the work and no part in planning it, corrected no Sundowner employees regarding their work or safety practices, did not arrange or conduct safety meetings, did not cause any Sundowner employee to be reprimanded for safety practices, did not order any Sundowner employee to engage in unsafe practices; and was unaware of the unsafe manner in which Sundowner employees were disconnecting the power pack. Williams has presented no evidence to contradict those facts.
Amoco itself could have been negligent only if it owed a duty to plaintiffs themselves and breached that duty and plaintiffs' damages resulted from that breach. The Louisiana supreme court and the federal Fifth Circuit Court of Appeals have held that if a contract provides that the principal has no responsibility for the work of the contractor, the principal may not be liable even if the principal's representative saw unsafe practices and arguably could have prevented an accident, but did not do so. In this action, the contract provided that only Sundowner was responsible for the safety of its employees. Amoco had no duty to plaintiffs under the contract.
Crane v. Exxon Corporation, U.S.A., 613 So.2d 214, 221 (La.Ct.App, 1992).
Kent v. Gulf States Utilities Co., 418 So.2d 493, 500 (La. 1982). Graham v. Amoco Oil Company, 21 F.3d 643, 647 (CA5 1994]. Ainsworth, supra, 829 F.2d at 551.
The next issue as to Amoco's liability for its own negligence is whether Amoco assumed any duties to plaintiffs outside the contract. As to a possible extra-contractual duty to plaintiffs, there is no evidence that either Amoco or Binford assumed a duty which was breached. Binford never directly involved himself in Sundowner's work or directed Sundowner to perform its work in a particular manner because of safety concerns. Amoco had no extra-contractual duty to plaintiffs.
See Crane, supra. In Crane, the company representative assumed a duty to protect the safety of the contractor's workers by repeatedly "personally reprimanding" the contractor for safety violations, and be then breached that duty by not making sure a hole was covered.
As to its own negligence, Amoco had no duty to plaintiffs from any source. Without a duty, there could have been no breach of duty causing plaintiffs' damages. Thus, no negligence of Amoco itself could make Amoco liable to plaintiffs. Therefore, analysis of this matter turns to whether Amoco retained operational control of Sundowner's work.
As set out supra, a principal's retaining operational control of a contractor's work creates an exception to the general rule that the principal cannot be liable for the contractor's negligence.
Testing for [the] operational control exception first requires an examination of whether and to what extent the right to control work has been contractually reserved by the principal."
Coulter v. Texaco, Inc., 117 F.3d 909, 912 (CA5 1997).
A contract, such as this one, which provides that the contractor is responsible for the work and the principal is interested in only "the results obtained" does not give the principal operational control of the contractor's work so as to render the principal liable for the contractor's negligence. That is the situation herein. The Amoco/Sundowner contract did not give Amoco operational control of Sundowner's work, so next the analysis turns to any possible extra-contractual matters showing operational control.
Sword v. Gulf Oil Corporation, 251 F.2d 825, 833 (CA5 1958). Ainsworth, supra.; Duplantis v. Shell Offshore, Inc., 948 F.2d 187 (CA5 1991).
As stated in Coulter:
the fact that a principal like Texaco reserves the right to monitor its contractor's performance and stations a "company man" on the platform who observes the contractor's activities, has the right to make safety recommendations to the contractor, and is obligated to report continuing unsafe work practices or conditions to his (Texaco) superiors, does not mean that the principal controls the methods or details of the contractor's work. In short, absent an express or implied order to the contractor to engage in an unsafe work practice leading to an injury, a principal like Texaco cannot be liable under the operational control exception.
Coulter, supra, ibid. Citations omitted.
In Duplantis v. Shell, it was held that operational control by the principal was not shown when the principal's representative on a rig was concerned with safety, held safety meetings and initiated the discussions at those meetings and caused a crane operator to be removed by the contractor for unsafe practices.
Duplantis, supra.
Amoco and Binford were concerned with safety, and Binford sometimes participated in Sundowner safety meetings. But, Binford never took any personal actions related to safety and the workover. The conduct of Binford clearly falls within the level of activity which, under Coulter and Duplantis, does not show that the principal maintained operational control of the work. There is no evidence that Amoco retained contractual or extracontractual operational control of Sundowner's work.
The final jurisprudential exception to the rule that a principal may not be liable for a contractor's negligence is a situation in which the principal expressly or impliedly authorized the contractor's unsafe practices. There is no evidence that Amoco authorized any unsafe practices of Sundowner. In fact, there is no evidence of any unsafe practice by Sundowner except that which occurred during the detaching of the power pack from Sundowner's crane. Binford was not aware of that unsafe work as it was occurring, and could not have expressly or impliedly authorized it.
Plaintiff Williams has presented no evidence which would allow a jury to find that Amoco could be liable for the accident. Amoco could be liable if its negligence caused the accident, it did not; if Amoco retained operational control of the work, it did not; or if Amoco authorized the unsafe practice which caused the accident, it did not. Amoco cannot be liable to plaintiffs Brunet and Williams.
CONCLUSION
In consideration of the foregoing discussion,
IT IS ORDERED that the motion of Sundowner Offshore Services, Inc. for a summary judgment as to all claims of the Brunet plaintiffs is DENIED; the motion of the Brunet plaintiffs for summary judgment as to their claims against Sundowner Offshore Services, Inc. is DENIED; the motion of Amoco Production Company and BP Amoco Production Company for reconsideration of the dismissal of the claims of the Brunet plaintiffs is GRANTED; and the motion of Amoco Production Company and BP Amoco Production Company for summary judgment on the merits as to the claims of the Brunet plaintiffs and the Williams plaintiffs is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court is to prepare a judgment in favor of defendants, Amoco Production Company and BP Amoco Production Company, and against plaintiffs, Vincent Williams and Peggy Williams, dismissing all claims in Civil Action Number 99-2548 with prejudice.
A judgment in favor of Amoco and against the Brunet plaintiffs will be entered when all proceedings in action number 99-1418 are completed.
New Orleans, Louisiana, this 12th day of April, 2000.