Opinion
No: 99-3904
October 13, 2000
ORDER AND REASONS
Before the Court is the Motion for Summary Judgment (Rec. Doc. 20) filed by defendant Burlington Resources Oil and Gas Company ("Burlington"). Plaintiffs oppose the motion. The motion, set for hearing on September 27, 2000, is before the Court on briefs without oral argument. Also pending is Burlington's Motion to Strike the report of plaintiffs' expert, William R. Felkner (Rec. Doc. 31), which is before the court on briefs on an expedited basis. As discussed more fully below, because plaintiffs have failed to show that Burlington owed Jay Thomas a duty of care, the Court finds the Motion for Summary Judgment should be granted and the Motion to Strike should be denied as moot.
BACKGROUND
The facts of the case are simple and mostly undisputed. Plaintiff Jay Thomas, an employee of Boco of Louisiana, Inc. ("Boco"), was injured while he and another Boco employee moved an oil drum down a flight of stairs by hand. The injury occurred aboard one of Burlington's offshore oil production platforms that Boco, as an independent contractor, had contracted to sandblast and paint. The moving of the barrel was directed by Boco foreman David Page, and at all times pertinent to the dispute, Thomas was acting under the direct supervision of Page.
Even though Thomas initially claimed in his answers to interrogatories of April 27, 2000, that "defendant's representative directed plaintiff and others to move the drum by hand, " he subsequently made it abundantly clear in his sworn deposition taken on July 5, 2000, that he was "ordered by David Page to move the barrels . . ." and that Mr. Page was the only one there giving work orders. Plaintiff's Depo., 85:20-23; see also id. at 80:3-5, 10-16; 85:4-16.
Jay Thomas filed suit in this Court against Burlington based on a claim of negligence under the Outer Contimental Shelf Lands Act, 43 U.S.C. 1331 ("OCSLA") . Burlington then filed the instant Motion for Summary Judgment, arguing it owed no duty of care to Thomas. In his opposition to the motion, Thomas introduced the affidavit of an expert witness, which Burlington then moved to strike.
ANALYSIS
Pursuant to § 1333(2)(A) of OCSLA, Thomas's negligence claim is governed by the law of the state adjacent to that portion of the seabed where he was injured — in this case, Louisiana. Louisiana has adopted a "duty-risk analysis" to be applied in determining whether liability exists under the facts of a particular case. Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813 (La. 1993). Under the duty-risk analysis, the plaintiff must prove: 1) the conduct in question was a cause in fact of the harm; 2) defendant owed a duty of care to plaintiff; 3) that duty was breached; and 4) the risk of harm was within the scope of protection afforded by the duty breached. Id. Further, whether a duty is owed by the defendant to the plaintiff is a question of law. Id. As a result, Thomas's claim will only survive a motion for summary judgment if, as a matter of law, he can prove Burlington owed him a duty of care.
It is well-established that a principal is not liable for the negligent acts of an independent contractor in the course of performing contractual obligations. Ainsworth v. Shell Offshore. Inc., 829 F.2d 548, 549 (5th Cir. 1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1593 (1988) . There are two exceptions to this rule. Liability may be imposed upon a principal for the acts of the independent contractor if the activity performed by the independent contractor is ultrahazardous, or if the principal exercises operational control over the independent contractor's performance. Id. at 549-50.
In this case, the parties do not contest that Boco was performing the painting and blasting work as an independent contractor. Nor has it been suggested that the work was ultrahazardous. Further, the undisputed facts of this case indicate that no Burlington representative issued the "how to" instructions to Boco workers necessary to support a finding that Burlington exerted operational control. See Grammar v. Patterson Services, Inc., 860 F.2d 639, 645 (5th Cir. 1988), cert. denied, 491 U.S. 906, 109 S.Ct. 3190 (1989) . To the contrary, Page, the Boco foreman, was left to accomplish the painting and sandblasting of the platform in any way he chose, and he ordered Thomas to move the barrel down the stairs by hand. While Burlington's company man was present at the safety meeting on the morning of plaintiff's injury, and witnessed the discussion concerning moving the barrels, he did not participate in the discussion or any decisions relative to moving the barrels.
See supra, note 1.
Thomas argues that Burlington had knowledge of Boco's unsafe work practice through the regular attendance of a Burlington representative at Boco's safety meetings and thus had a duty to intervene, relying on Dupre v. Chevron U.S.A., Inc., 109 F.3d 230 (5th Cir. 1997) . It is true that an "owner or operator of a facility has the duty of exercising reasonable care for the safety of person on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm." Dupre, 20 F.3d at 157 (internal quotations omitted). However, this duty does not extend so far as to require the owner or operator to intervene in and correct the work practices selected by an independent contractor.Ainsworth, 829 F.2d at 551; Kent v. Gulf States Utilities, 418 So.2d 493, 500 (La. 1982) . Rather, in determining whether a principal owes a duty to employees of independent contractors, courts consider whether the hazard was created by the principal or the independent contractor. In cases like the one at bar, in which the principal did not create the danger, the principal has no liability.
See Verrett v. Louisiana World Exposition, Inc., 503 So.2d 203 (La.App. 4th Cir.), writ denied, 506 So.2d 1229 (La. 1987); Robertson v. Arco Oil Gas Co., 948 F.2d 132 (5th Cir. 1991); Zepherin v. Conoco Oil Co., 884 F.2d 212 (5th Cir. 1989). Cf. Smith v. Chevron U.S.A.. Inc., 1999 WL 615174 (Aug. 12, 1999, E.D. La.) (denying summary judgment to principal because plaintiff was not injured due to a hazard created by the contractor).
In sum, because Boco created the hazard which injured plaintiff, Burlington owed no duty of care to plaintiff. Because Burlington owed no duty of care to plaintiff, it cannot be liable to plaintiff in negligence, and is therefore entitled to summary judgment. Accordingly,
IT IS ORDERED that Burlington's Motion for Summary Judgment (Rec. Doc. 20) should be and hereby is GRANTED, and plaintiff's suit is DISMISSED with prejudice; IT IS FURTHER ORDERED that Burlington's Motion to Strike the Report of plaintiffs' expert, William R. Felkner (Rec. Doc. 31) should be and is hereby DENIED as moot.