Thomas Davis v. Dynamic Offshore Resource

Filing

PUBLISHED OPINION FILED. [16-40059 Affirmed ] Judge: EHJ , Judge: EBC , Judge: JWE Mandate pull date is 06/02/2017; mooting motion to file appellee's supp brief filed by Appellee Dynamic Offshore Resources, L.L.C. [8491043-2] [16-40059]

Case: 16-40059

Document: 00513990232

Page: 1

Date Filed: 05/12/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40059

United States Court of Appeals
Fifth Circuit

FILED
May 12, 2017

THOMAS DAVIS,

Lyle W. Cayce
Clerk

Plaintiff - Appellant
v.
DYNAMIC OFFSHORE RESOURCES, L.L.C.,
Defendant - Appellee

Appeal from the United States District Court
for the Southern District of Texas
Before JONES, CLEMENT, and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Dynamic Offshore Resources LLC (“Dynamic”) owns and operates
offshore platforms in the Gulf of Mexico. Thomas Davis, a crane mechanic
employed by Gulf Crane Services, was allegedly injured during a personnelbasket transfer to Dynamic’s 86A platform. No Dynamic employees were
present at the 86A platform. Independent contractors employed the lead
operator, the crane operator, and all other workers on the platform. Davis
brought suit against Dynamic for negligence and gross negligence. The district
court granted summary judgment to Dynamic, holding that it was not
vicariously liable for the alleged negligence of its independent contractors.

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Davis appeals the district court’s grant of summary judgment to Dynamic. We
AFFIRM.
I
On March 26, 2013, a Gulf Crane employee told Davis that a winch on a
crane on Dynamic’s 86B platform had not passed inspection and needed to be
replaced. A new winch was located at the 86A platform. When Davis arrived
by boat at the 86A platform, an equipment transfer basket lowered the winch
into the boat. Another worker was lowered into the boat via personnel-basket
transfer and informed Davis that they were going to change the winch at the
86B platform.
Davis decided to delay replacing the winch because of safety concerns
related to wind. Davis’s “stop work authority” authorized him to stop work “at
all times.” He needed to inform Dynamic’s foreman, who was on another
platform, of his decision to delay the work. Instead of contacting the foreman
by radio from the boat, Davis asked the crane operator to transport him to the
86A platform via personnel basket so he could call the foreman privately from
the phone located on the platform.
As Davis was being lifted, the personnel basket suddenly dropped six to
eight feet. Davis testified at his deposition that the drop occurred because the
crane operator swung the personnel basket into the wind when he should have
swung it with the wind. After the drop, the crane operator continued the
transfer until Davis was on the 86A platform. Davis testified that he
immediately “felt pain in [his] shoulder, [his] back, [his] knees” after the drop.
II
This court reviews de novo an order granting summary judgment,
“applying the same standard as the district court.” Vela v. City of Houston, 276
F.3d 659, 666 (5th Cir. 2001). Summary judgment is appropriate “if the movant
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shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Fed. R. Civ. P. 56(a).
III
“It is well established that a principal is not liable for the activities of
an independent contractor committed in the course of performing its duties
under the contract.” Bartholomew v. CNG Producing Co., 832 F.2d 326, 329
(5th Cir. 1987). Louisiana law recognizes two exceptions to this general rule:
(1) “a principal may not escape liability arising out of ultrahazardous activities
which are contracted out to an independent contractor”; and (2) “a principal is
liable for the acts of an independent contractor if he exercises operational
control over those acts or expressly or impliedly authorizes an unsafe practice.”
Id. There are two issues on appeal: (1) whether personnel-basket transfers are
ultrahazardous activity; and (2) whether Dynamic authorized an unsafe
working condition.
First, personnel-basket transfers are not ultrahazardous activity
because they “require substandard conduct to cause injury.” Ainsworth v. Shell
Offshore, Inc., 829 F.2d 548, 550 (5th Cir. 1987). Evidence that the transfer
was made in high winds is irrelevant to whether personnel-basket transfers
are ultrahazardous. “Whether an activity qualifies as ultrahazardous under
the Louisiana doctrine is a question of law.” Hawkins v. Evans Cooperage Co.,
766 F.2d 904, 907 (5th Cir. 1985). Louisiana law considers only whether an
activity is per se ultrahazardous, not whether an activity in specific conditions
is ultrahazardous. See, e.g., id.; O’Neal v. Int’l Paper Co., 715 F.2d 199, 201–02
(5th Cir. 1983). Davis’s counsel conceded at oral argument that a personnel
basket transfer is not “in and of itself” ultrahazardous. We agree. See, e.g.,
Newman v. KMJ Servs., Inc., No. 04-2518, 2006 WL 3469563, at *2 (E.D. La.
Nov.

30,

2006)

(holding

that

personnel-basket

ultrahazardous).
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transfers

are

not

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Second, we hold that Dynamic did not authorize an unsafe working
condition. If “work is done in an unsafe manner, the [principal] will be liable if
he has expressly or impliedly authorized the particular manner which will
render the work unsafe, and not otherwise.” Ewell v. Petro Processors of La.,
Inc., 364 So.2d 604, 606–07 (La. App. 1st Cir. 1978) (emphasis added). Davis
presented evidence that, on the day of the accident, Dynamic’s foreman ordered
Davis to replace the crane winch on Dynamic’s 86B platform. But Davis does
not present any evidence that Dynamic ordered him to make a personnelbasket transfer to the 86A platform in high winds. To the contrary, it is
undisputed that Davis requested a personnel-basket transfer to the 86A
platform. Davis admitted at his deposition that he could have exercised his
stop work authority if he “felt it too unsafe to do that transition from the
platform to the boat to the 86A [platform].” Dynamic was “entitled to rely on
the expertise of its independent contractor” in operating the personnel-basket
transfers. Hawkins, 766 F.2d at 908. Dynamic did not have the duty to
supervise to ensure that its “independent contractor performs its obligations
in a reasonably safe manner.” Id. Even accepting Davis’s evidence as true and
viewing it in the light most favorable to him, Dynamic did not authorize—
either expressly or impliedly—an unsafe working condition that caused injury
to Davis.
IV
We AFFIRM the judgment of the district court.

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