Robinson et al v. Blanchard Contractors, Inc.
Filing
106
ORDER & REASONS re dft's 65 Motion for Summary Judgment: for the reasons stated, IT IS HEREBY ORDERED that Blanchard's Motion for Summary Judgment is DENIED. Signed by Judge Nannette Jolivette Brown on 12/12/2012. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARVIN ROBERTSON, SR.
CIVIL ACTION
VERSUS
NO. 11-1453
BLANCHARD CONTRACTORS, INC., et al.
SECTION: “G”(3)
ORDER AND REASONS
Before the Court is Defendant Blanchard Contractors, Inc’s (“Blanchard”) Motion for
Summary Judgment,1 in which Blanchard contends that there is no genuine issue of material fact that
Blanchard owed Plaintiff Marvin Robertson, Sr. (“Plaintiff”) a duty of care sufficient to support
Plaintiff’s negligence action and, further, contends that Plaintiff was a borrowed servant of
Blanchard at the time of Plaintiff’s alleged injury, such that Plaintiff is barred from bringing tort
claims against Blanchard. Having considered the motion, the response, the reply, the record, and
the applicable law, for the following reasons, the Court will deny the motion.
I. Background
This case arises from an alleged accident that occurred on July 17, 2010 on a fixed platform
owned by Hilcorp Energy, GOM, LLC (“Hillcorp”), which is located on the Outer Continental Shelf
adjacent to Louisiana in the Gulf of Mexico. Plaintiff was working on the platform as a scaffolding
builder. Hilcorp had engaged several companies for various tasks on the platform; one of those
companies was Blanchard, which had in turn subcontracted with Gulf South Scaffolding, Inc. (“Gulf
South”) for the construction and daily safety inspections of scaffolding aboard the platform. At all
1
Rec. Doc. 65.
1
relevant times, Plaintiff was employed by Gulf South. However, Blanchard contends that Plaintiff
was only “nominally” employed by Gulf South.2
Regarding the incident in question, Plaintiff alleges that, while walking aboard a lower deck
of scaffolding after retrieving his supervisor’s carpenter’s level, he tripped over a piece of stainless
steel tubing that had become wedged between scaffolding boards. Further, Plaintiff alleges that he
attempted to grab onto a handrail as he fell but that his hand slipped off of the railing due to the
presence of a “slippery substance.”3 According to Plaintiff, immediately prior to the accident,
Blanchard employees were on the platform above the scaffolding where Plaintiff fell and the
employees were washing pipe with detergent and water. Plaintiff contends that the water and
detergent used by the Blanchard employees caused the handrail near the scaffolding to be slippery.
Plaintiff filed suit in the 17th Judicial District Court for the Parish of Lafourche, State of
Louisiana, against Blanchard, alleging negligence for failing to warn of the tubing and failing to
maintain a safe work area.4 On the basis of federal question jurisdiction under the Outer Continental
Shelf Lands Act (“OCSLA”),5 Blanchard removed the suit to this Court.6 By his First Supplemental
and Amending Complaint of July 18, 2011, Plaintiff added additional defendants, including
defendant Instrumentation & Electrical Technologies, LLC (“I&E”), and alleged those defendants’
concurrent negligence.7 Additionally, Plaintiff’s employer, Gulf South, intervened to recover
2
Rec. Doc. 65-2 at p. 1.
3
See Rec. Doc. 65-3 at p. 11.
4
Petition for Damages, Rec. Doc. 1-1.
5
43 U.S.C. § 1333 et. seq.
6
Rec. Doc. 1.
7
Rec. Doc. 13.
2
workers’ compensation benefits paid to Plaintiff pursuant to the Longshore and Harbor Worker’s
Compensation Act (“LHWCA”).8
On February 23, 2012, co-defendant I&E filed a motion for summary judgment,9 arguing that
under Louisiana law, I&E owed no duty to Plaintiff sufficient to support Plaintiff’s negligence
action. On June 25, 2012, this Court denied I&E’s motion.10
On April 17, 2012, Blanchard filed the instant motion for summary judgment, contending
that there are no genuine issues of material fact that Blanchard did not owe Plaintiff a duty of care,
and that, even if such a duty existed, Plaintiff is barred from bringing this tort claim because he was
a borrowed servant of Blanchard.11 Plaintiff filed his response in opposition on May 1, 2012.12 On
May 11, 2012, Blanchard filed a reply with leave of Court.13
II. The Parties’ Arguments
The pending motion for summary judgment argues that there is no genuine issue of material
fact for the jury to decide, because (1) Blanchard did not owe Plaintiff a “legal duty to ensure the
safety of the scaffolding in question;”14 and (2) even if such a duty were owed, Plaintiff was the
8
Rec. Doc. 22.
9
Rec. Doc. 47.
10
Rec. Doc. 83.
11
Rec. Doc. 65.
12
Rec. Doc. 67.
13
Rec. Doc. 73.
14
Rec. Doc. 65-2 at p. 6. Blanchard incorporates by reference the arguments set forth in I&E’s motion for
summary judgment relating to the absence of a legal duty on the part of I&E to ensure the safety of the scaffolding.
See id. (citing Rec. Doc. 47-1 at pp. 6-7).
3
borrowed servant of Blanchard and is therefore “barred from bringing tort claims against Blanchard
by the exclusive remedy provision of the LHWCA.”15
A. Existence of a Legal Duty
First, Blanchard contends that there is no genuine issue of material fact that Blanchard did
not owe Plaintiff a duty of care sufficient to support Plaintiff’s negligence action, because Plaintiff
“has testified that Gulf South rather than Blanchard, was responsible for maintaining the scaffolding
in a non-hazardous state.”16 Blanchard asserts that “[t]here has been absolutely no evidence to date
that Blanchard was the source of the steel tubing over which plaintiff fell. Indeed, Robertson
testified that he never saw Blanchard working with steel tubing on the platform.”17 Blanchard
incorporates the arguments set forth in I&E’s earlier motion for summary judgment,18 wherein I&E
does not specifically address the other necessary elements of a negligence claim under Louisiana
law, instead noting that “[s]ince Robertson cannot prove that I&E owed him a legal duty, the
plaintiff cannot fulfill all of the elements of a negligence cause of action against I&E.”19 Likewise,
Blanchard argues that it owed no legal duty to ensure the safety of the scaffolding.20
Plaintiff’s response in opposition to the motion for summary judgment asserts that Blanchard
had a duty “to conduct their work activities in such a manner that they did not expose other platform
15
Rec. Doc. 65-2 at p. 17.
16
Id. at p. 6.
17
Id. at pp. 5-6 (citing Ex. A at p. 131, lns. 3-5).
18
Id. at p. 6 (citing Rec. Doc. 47-1 at pp. 6-7).
19
Id. at p. 6.
20
Id.
4
workers to an unreasonable risk of harm.”21 In fact, Plaintiff avers that “[g]enerally, there is an
almost universal legal duty on the part of a defendant in a negligence case to conform to the standard
of conduct of a reasonable person in like circumstances.”22 Plaintiff notes that by arguing that no
duty existed simply because someone else was charged with maintaining the safety of the
scaffolding, Blanchard ignores its responsibility for its own conduct pursuant to the duty imposed
on every individual by Louisiana’s general negligence statute, Louisiana Civil Code Article 2315.23
Specifically, Plaintiff argues that Blanchard “clearly had a duty to conduct their construction
activities in such a manner that they did not allow soapy water to be poured on handrails near the
scaffolding.”24 Plaintiff notes that whether Blanchard breached this duty and whether that breach
caused Plaintiff’s injuries by making him unable to break his fall are questions of fact to be resolved
at trial.25 Thus, Plaintiff contends that this Court must deny Blanchard’s motion for summary
judgment because Blanchard’s negligent actions in allowing soapy water to be poured on the
handrails near the scaffolding created an unreasonable risk in violation of Blanchard’s general duty
of care under the Louisiana Civil Code Article 2315.26
B. Borrowed Servant Status
The parties agree that Plaintiff was injured on the Outer Continental Shelf, and Section
21
Rec. Doc. 67 at p. 6.
22
Id. (citing Boykin v. Louisiana Transit Co., 96-1932 (La. 3/4/98) 707 So.2d 1225).
23
Id. at pp. 6-7.
24
Id. at p. 7.
25
Id.
26
Id. at pp. 6-7.
5
1333(b) of the OCSLA incorporates and extends the benefits of the LHWCA to employees injured
on fixed platforms on the Outer Continental Shelf.27 The parties further agree that under the
LHWCA, employees are prevented from bringing tort actions against their employers and their
recovery is limited to certain statutorily prescribed compensation benefits.28 Because a borrowing
employer enjoys the same protection as a nominal employer, a “borrowed employee” (also referred
to as “borrowed servant”) is also barred from suing the borrowing employer for anything more than
workers’ compensation benefits.29 Thus, if Plaintiff is found to be a “borrowed employee” of
Blanchard, then he will be barred from suing Blanchard in tort. Although the parties dispute
whether Plaintiff was a borrowed employee at the time of his injury, both parties agree that whether
an employee is a borrowed employee constitutes an issue of law for the Court to decide30 by
applying the nine factor test set forth by the United States Court of Appeals for the Fifth Circuit in
Ruiz v. Shell Oil Co.31 However, Plaintiff suggests that “[i]f some of the factors involve a factual
dispute those factors must be submitted to the jury, unless a sufficient number of the other factors
clearly favor summary judgment.”32
The nine factors set forth in Ruiz are: (1) whether the borrowing employer had control over
the employee; (2) whose work is being performed at the time of the injury; (3) whether there was
27
Rec. Doc. 65-2 at p. 7 (citing 43 U.S.C.A. § 1333(b)); Rec. Doc. 67 at p. 7 (citing 43 U.S.C.A.
§1333(b)).
28
See Rec. Doc. 65-2 at p. 7 (citing 33 U.S.C.A. § 933(i)); Rec. Doc. 67 at p. 7 (citing 33 U.S.C. §905(a)).
29
See Rec. Doc. 65-2 at p. 7 (citing Melancon v. Amoco Production Co., 834 F.2d 1238, 1243 (5th Cir.
1988)); Rec. Doc. 67 at p. 7 (citing West v. Kerr-McGee Corp., 765 F.2d 256 (5th Cir. 1985)).
30
Rec. Doc. 65-2 at p. 7 (citing Melancon, 834 F.2d at 1238); Rec. Doc. 67 at p. 8 (citing Capps v. N.L.
Baroid-NL Indus., Inc., 784 F.2d 615 (5th Cir. 1986)).
31
Rec. Doc. 65-2 at p. 7 (citing Ruiz, 413 F.2d 310, 310 (5th Cir. 1969)); Rec. Doc. 67 at p. 8 (citing id.).
32
Rec. Doc. 67 at p. 8.
6
an understanding or agreement between the original employer and the borrowing employer; (4)
whether the employee acquiesced in the new work situation; (5) whether the original employer
terminated its relationship with the employee; (6) whether the borrowing employer furnished the
tools and place of performance; (7) whether the new employment was over a considerable length
of time; (8) whether the borrowing employer had the right to discharge the employee; and (9)
whether the borrowing employer paid the employee.33 The parties agree that of these nine factors,
no single factor is decisive.34
1. Who Has Control Over the Employee?
Both parties explain that in “considering whether the power exists to control and direct a
servant, a careful distinction must be made between authoritative direction and control, and mere
suggestion as to details or the necessary co-operation, where the work furnished is part of a large
undertaking.”35
Blanchard contends that it had authoritative direction and control over Plaintiff and Nicholas
Alonso (“Alonso”), the only two Gulf South employees on the platform at the time of the accident,
through Blanchard’s superintendent, Randy Picard (“Picard”). In support of Blanchard’s position,
it notes that Plaintiff’s contact with Gulf South was through Picard; that Picard supervised the work
performed on the platform and gave Plaintiff and Alonso work assignments directly; that Plaintiff
33
Id. (citing 413 F.2d at 310).
34
Rec. Doc. 65-2 at p. 7 (citing Brown v. Union Oil Co. of California, 984 F.2d 674, 676 (5th Cir. 1993));
Rec. Doc. 67 at p. 8 (citing Brown, 984 F.2d 674).
35
Rec. Doc. 65-2 at p. 8 (citing Ruiz, 413 F.2d at 313 (quoting Standard Oil Co. v. Anderson, 212 U.S. 215
(1909))); Rec. Doc. 67 at p. 10.
7
turned timesheets in daily to Picard for his signature; that Plaintiff participated in a safety meeting
led by Blanchard contractors each morning; that Picard had the authority to direct Plaintiff’s work
and gave specific instructions as to where scaffolding was to be built; and that Plaintiff assisted
Blanchard with other tasks such as rigging, hanging pipe, and general housekeeping.36 Blanchard
further elaborates, in its reply, that it is of no legal consequence that Blanchard did not have the
expertise in scaffolding37 or that Blanchard did not direct each and every action of [Plaintiff].”38
Therefore, Blanchard avers that it had control over Plaintiff, and this factor strongly supports a
finding that Plaintiff was the borrowed servant of Blanchard.
In his opposition, Plaintiff maintains that Gulf South was responsible for construction of the
scaffolding, and Plaintiff “concedes that the safe construction of the scaffolding was the
responsibility of Marvin Robertson and his Gulf South supervisor, Nicholas Alonso.”39 Thus,
Plaintiff argues, it must logically follow from Gulf South’s responsibility for the safe construction
of the scaffolding, that Blanchard had “no authoritative direction or control over the Gulf South
scaffolding crew.”40 Plaintiff argues that Gulf South had the expertise in scaffolding construction,
and Plaintiff worked under the supervision of a Gulf South foreman, Alonso, not Blanchard’s
superintendent Picard. According to Plaintiff, “the only supervision [Picard] exercised over the Gulf
36
Rec. Doc. 65-2 at pp. 8-9.
37
Rec. Doc. 73 at p. 3 (citing Standard Oil Co., 212 U.S. at 221).
38
Id. (citing Hitt v. Cliffs Drilling Co., No. 92-2954, 1993 WL 488570, at *4 (E.D. La. Nov. 22, 1993)
(Livaudais, J.)).
39
Rec. Doc. 67 at p. 9.
40
Id. at p. 9.
8
South work crew was to tell them where the scaffold was to be placed on the platform.”41 Therefore,
Plaintiff contends that this factor weighs against finding he was a borrowed employer because
Blanchard “merely made suggestions as to the necessary co-operation needed so that the scaffold
could be constructed in a position where it would best facilitate the work of the Blanchard
construction crew.”42
2. Whose Work Was Being Performed?
Blanchard argues that the scaffolding was being built to allow Blanchard to refurbish the
platform pursuant to a contract between Blanchard and Hilcorp, and as such, the work being
performed was that of Blanchard.43 Blanchard explains that this factor examines “whether the work
done by the employee promotes the operations of the putative borrowing employer,”44 and emphasis
should be placed on whether “it was primarily the borrowing principal’s interests that were being
furthered by the employee’s work.”45 Here, Blanchard contends that because Plaintiff’s main job
was to erect scaffolding “to facilitate the work of the Blanchard construction crew” in refurbishing
the platform, Plaintiff’s work furthered Blanchard’s principal interest.”46 In further support of
Blanchard’s position that Plaintiff was performing its work, Blanchard notes that Plaintiff also
41
Id. at p. 10.
42
Id.
43
Rec. Doc. 65-2 at p. 9.
44
Rec. Doc. 73 at pp. 4-5 (quoting Allen v. Texaco, No. 99-1456, 2001 WL 611391, at *4 (E.D. La. June 5,
2001) (Vance, C.J.)).
45
Id. at p. 5 (quoting Langfitt v. Federal Marine Terminals, Inc., 647 F.3d 1116 (11th Cir. 2011)).
46
Rec. Doc. 65-2 at p. 10; Rec. Doc. 73 at p. 5.
9
assisted in other tasks “such as rigging and hanging pipe which promoted the operations of
Blanchard.”47
Plaintiff’s opposition argues that Gulf South was in the business of leasing and constructing
scaffolding equipment, and Plaintiff’s work activities on the platform contributed to Gulf South’s
scaffolding business. Furthermore, Plaintiff maintains that he did not engage in any activity that
contributed to Blanchard’s construction work.48 Accordingly, Plaintiff urges that this factor weighs
against a finding that Plaintiff was a borrowed employee, because there was a clear distinction
between the construction work performed by Blanchard’s construction crew and the work performed
by the Gulf South employees in furtherance of Gulf South’s scaffolding business.49
3. Was There an Agreement or Understanding Between the Original and Borrowing
Employers?
According to Blanchard, even absent a formal written contract between the borrowing
employer and the nominal employer, “[a] tacit understanding or ‘meeting of the minds’ alone is
sufficient.”50 Therefore, “[a] finding of borrowed servant status is supported where there is an
expectation on behalf of the management and employees of the lending employer that its employees
will be receiving instruction from another employer.”51 Blanchard argues that Gulf South and
47
Rec. Doc. 65-2 at p. 10; see also id. at p. 3 (citing Gulf South Scaffolding Time Sheets, Ex. B).
48
Rec. Doc. 67 at p. 11 (citing Picard Dep., Ex. C, pp. 25-26).
49
Id.
50
Rec. Doc. 65-2 at p. 10 (quoting Foreman v. Danos & Curole Marine Contractors, Inc., 772 So.2d 1, 6
(La. App. 1st Cir. 1998),
51
Id.
10
Blanchard had a meeting of the minds as evidenced by the fact that Picard had the authority to
evaluate, assess, and supervise Plaintiff’s performance on the platform, and if Picard felt Plaintiff’s
work was unsatisfactory he would simply call Gulf South’s onshore offices and have Plaintiff
replaced.52 Blanchard argues that its position is further supported by evidence that all contact
between Plaintiff and Gulf South was through Picard, and Blanchard “felt free to assign Robertson
to tasks in addition to building scaffolding.”53
Plaintiff argues that “there is no evidence which establishes a tacit ‘meeting of the minds’
between Blanchard and Gulf South.”54 Plaintiff contends that, to the contrary, the evidence indicates
that Gulf South employees were not performing scaffolding work under the supervision of
Blanchard, as Plaintiff and Alonso were the “experts” in scaffolding construction. Furthermore,
Gulf South maintained sufficient control and contact with Plaintiff’s work crew to refute the
argument that there was a meeting of the minds.55
In its reply, Blanchard asserts that the evidence Plaintiff relies on to establish that there was
no expectation on behalf of Gulf South that Plaintiff would be receiving instructions from
Blanchard56 only demonstrates that Plaintiff maintained a relationship with Gulf South “outside of
the work to be performed on the [] platform.”57 Blanchard reiterates that there was a meeting of the
52
Id. at pp. 10-11; Rec. Doc. 73 at p. 6.
53
Id.
54
Rec. Doc. 67 at p. 11.
55
Id. at p. 12 (Plaintiff lists nine facts portraying the continued contact between Plaintiff and Gulf South,
which primarily relate to compensation, benefits, and scheduling).
56
See id.
57
Rec. Doc. 73 at p. 6.
11
minds with Gulf South that Blanchard would give Plaintiff instructions, which was demonstrated
by Plaintiff’s “little contact” with Gulf South while on the platform.58
4. Did the Employee Acquiesce in the New Work Situation?
According to Blanchard, this factor evaluates whether the employee had time to assess his
new work situation and choose to continue working in those conditions.59 Blanchard notes that the
Fifth Circuit held that one month was sufficient time for an employee to appreciate and acquiesce
in his new work conditions,60 and district courts have found periods shorter than one month to be
sufficient.61 Blanchard asserts that “Plaintiff’s actions during his approximately one month time on
the platform show that he acquiesced in the new work situation.”62 Plaintiff agrees with Blanchard
that this factor weighs in favor of borrowed servant status, because Plaintiff claims he would have
continued working on the platform until completion of the job if he had not been injured.63
5. Did the Original Employer Terminate His Relationship with the Employee?
Blanchard argues that this factor also weighs in favor of finding that Plaintiff was a borrowed
employee, because the nominal employer does not have to completely sever its relationship with the
employee. Instead, the emphasis is on the lending employer’s relationship with the employee while
58
Id.
59
Rec. Doc. 65-2 at p. 11.
60
Id. (citing Brown, 984 F.2d at 678).
61
Id.
62
Rec. Doc. 65-2 at p. 12.
63
Rec. Doc. 67 at p. 13.
12
the borrowing occurred.64 In support of this position, Blanchard cites Allen v. Texaco, Inc.,65 where
the court found that the nominal employer severed its relationship with the plaintiff because the
nominal employer had no knowledge regarding the plaintiff’s daily work performance and
responsibilities, and the plaintiff received daily tasks from the borrowing employer.66 Like the
plaintiff in Allen, Blanchard contends that Robertson’s daily work was dictated by Blanchard rather
than Gulf South, and Robertson had little contact with Gulf South that did not go through
Blanchard.67
Plaintiff avers that Gulf South maintained significant contact and control over him while he
worked on the platform, and, therefore, this factor weighs against a finding of borrowed servant
status. Plaintiff sets forth the following nine factors establishing the relationship between Plaintiff
and Gulf South: (1) Gulf South set the time of Plaintiff’s work hitch68 on the platform, (2) if Plaintiff
was unable to report for a work hitch, he would contact Gulf South; (3) Plaintiff’s vacation time had
to be approved by Gulf South; (4) Plaintiff’s rate of pay and any pay raises were controlled by Gulf
South; (5) Gulf South could reassign Plaintiff from the platform to another job location; (6) Plaintiff
was notified of the time, date, location, and name of the crew boat which provided transportation
to the platform by a Gulf South dispatcher; (7) a Gulf South foreman conducted a mandatory “job
safety analysis” every morning; (8) Gulf South provides Plaintiff with compensation benefits; and
64
Rec. Doc. 65-2 at p. 12 (citing Capps, 784 F.2d at 617-18).
65
2001 WL 611391.
66
Rec. Doc. 65-2 at p. 13 (citing 2001 WL 6111391, at *6).
67
Id. (citing Ex. C at p. 11, lns. 15-18).
68
A “work hitch” refers to the days Plaintiff was scheduled to work, as opposed to the days he was off.
13
(9) a Gulf South incident report was completed following the July 17, 2010 accident.69 Of these
factors, Plaintiff argues that the fact that Blanchard did not provide Plaintiff’s work assignments,
as he worked under the supervision of a Gulf South foreman, and the fact that Blanchard merely
identified the location where the scaffold was to be constructed are of particular importance in
finding that Plaintiff was not a borrowed employee.70
In reply, Blanchard first notes that Plaintiff relies on the same nine facts he relied on in
support of his earlier contention that there was no meeting of the minds between Gulf South and
Blanchard,71 but Blanchard argues that these facts “speak more to the relationship with Gulf South
outside of the work he was performing while on the subject platform.”72 Blanchard reiterates that
the focus is on Gulf South’s relationship with Plaintiff while the borrowing occurs.73 Additionally,
Blanchard maintains that, contrary to Plaintiff’s assertions in the opposition, Plaintiff’s own
testimony indicates that he took his work assignments from Picard.74 Furthermore, Blanchard argues
that the Alonzo was not Plaintiff’s supervisor, but “just a more senior scaffold builder.”75 Blanchard
reasons that Plaintiff’s limited contact with Gulf South while on the platform and Picard’s
supervision and assignment of Plaintiff’s work support a finding that Gulf South sufficiently
69
Rec. Doc. 67 at pp. 13-14.
70
Id. at p. 14.
71
Rec. Doc. 73 at p. 7.
72
Rec. Doc. 73 at p. 7. Cf. Rec. Doc. 67 at p. 12.
73
Id.
74
Id. (citing Blanchard’s Motion for Summary Judgment, Ex. A at p. 40, lns. 6-8).
75
Id. at p. 8.
14
terminated its relationship with Plaintiff.76
6. Who Furnished the Tools and Place for Performance?
Blanchard argues that this factor overall weighs in favor of finding that Plaintiff was a
borrowed employee, because it evaluates who furnished the place of performance, tools for the job,
transportation to and from the work place, food and lodging.77 Although Blanchard did not provide
Plaintiff with tools, Blanchard argues that, by virtue of its contract with Hilcorp, it provided the
place of employment, all meals, transportation to and from the platform, and lodging on the
platform.78 Therefore, Blanchard argues that this factor supports Plaintiff’s status as a borrowed
employee.
Plaintiff disputes Blanchard’s contention that it should be credited with providing Plaintiff’s
place of employment, food, lodging and transportation because Hilcorp provided those necessities
for performance of the job based on it’s contract with Blanchard. Instead, Plaintiff relies on Picard
and Plaintiff’s testimony in depositions that Blanchard did not provide Plaintiff with any tools or
equipment, and that Hilcorp provided the place of employment, food, lodging and transportation.
Plaintiff argues that this factor provides a neutral assessment in the case, because neither Gulf South
nor Blanchard provided the necessities for performance of the job.79
Blanchard contends that Plaintiff overlooks the fact that only Blanchard had a contract with
76
Id.
77
Rec. Doc. 65-2 at p. 13 (citing Melancon, 834 F.2d at 1246).
78
Rec. Doc. 65-2 at p. 14.
79
Rec. Doc. 67 at pp. 14-15.
15
Hilcorp, and that Blanchard was the general contractor on the refurbishment contract.80 Blanchard
reasons that it must logically follow that it was only through Blanchard’s contractual relationship
with Hilcorp that Plaintiff was provided with transportation, food, and lodging; and therefore, this
factor favors borrowed servant status.81
7. Was the Employment Over a Considerable Length of Time?
According to Blanchard, where the length of time is considerable, this factor supports a
finding that the employee is a borrowed employee, but the factor is simply neutral if the length of
time is not considerable.82 Blanchard further elaborates that the courts have not deemed a specific
amount of time to be considerable, and courts have found as few as five days to support a finding
of borrowed servant status or as long as a month to be neutral.83 Blanchard contends that this factor
favors a finding that Plaintiff was a borrowed employee, because he was on the platform for
“approximately one month or five weeks prior to his accident.”84 Furthermore, Blanchard explains
that Plaintiff’s testimony that he had no plans of leaving the platform because there was a lot more
work to be done when his accident occured indicates that he would have been under Blanchard’s
supervision for a period considerably longer than one month, but for his accident.85
Plaintiff argues that this factor is neutral in the analysis because Plaintiff worked on the
80
Rec. Doc. 73 at p. 9.
81
Id.
82
Rec. Doc. 65-2 at p. 14 (citing Melancon, 834 F.2d at 1246; Capps, 784 F.2d at 618).
83
Id. (citing Brown, 984 F.2d at 679).
84
I d. (citing Ex. A at p. 39, lns. 9-11).
85
Id.
16
platform for “as little as 2 weeks and as long as one month.”86 Plaintiff submits that Blanchard
cannot rely on Plaintiff’s intent to continue working on the platform had he not been injured to
establish a considerable length of time, because that logic would permit a finding that an employee
injured the on the first day of work spent a considerable length of time in the new work situation.87
8. Who Had the Right to Discharge the Employee?
The parties agree that Picard, the Blanchard supervisor, had the authority to remove Plaintiff
from the platform if he was not satisfied with Plaintiff’s work.88 Therefore, Plaintiff does not contest
that this factor weighs in favor of finding that Plaintiff was a borrowed employee.
9. Who Had the Obligation to Pay the Employee?
The parties agree that Fifth Circuit precedent states that any arrangement whereby a nominal
employer is reimbursed by the purported borrowing employer for the services of the employee
favors a finding of borrowed servant status. The parties explain that in this case Blanchard paid Gulf
South for Plaintiff’s services based on timesheets Plaintiff submitted to Blanchard, and Gulf South
in turn paid Plaintiff. Therefore, the parties agree that this factor favors borrowed servant status.89
86
Rec. Doc. 67 at p. 15 (citing Picard Dep., Ex. C at p. 54, lns. 20-22).
87
Id.
88
Rec. Doc. 65-2 at p. 15; Rec. Doc. 67 at pp. 15-16.
89
Rec. Doc. 65-2 at p. 16; Rec. Doc. 67 at p. 16.
17
III. Law and Analysis
A. Standard on Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery and disclosure materials
on file, and any affidavits show that “there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”90 When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in the record but refrains from making
credibility determinations or weighing the evidence.”91 All reasonable inferences are drawn in favor
of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or
conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for
summary judgment.”92 If the record, as a whole, could not lead a rational trier of fact to find for the
non-moving party, then no genuine issue of fact exists and the moving party is entitled to judgment
as a matter of law.93
If, as here, the dispositive issue is one on which the nonmoving party will bear the burden
of proof at trial, the moving party may satisfy its summary judgment burden merely by pointing out
that the evidence in the record is insufficient with respect to an essential element of the nonmoving
party’s claim.94 At that time, the burden shifts to the nonmoving party, who must, by submitting or
90
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
91
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
92
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
93
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
94
See Celotex, 477 U.S. at 325.
18
referring to evidence, set out specific facts showing that a genuine issue exists.95 The nonmoving
party may not rest upon the pleadings, but must identify specific facts that establish a genuine issue
for trial.96
B. Choice of Law
Plaintiff’s complaint alleges that his injury occurred on a fixed platform on the Outer
Continental Shelf in the Gulf of Mexico. When a cause of action arises on a fixed platform located
on the Outer Continental Shelf, the OCSLA governs the action, thereby conferring federal question
jurisdiction on this Court pursuant to 28 U.S.C. § 1331. The OCSLA provides that the law of the
state adjacent to the controversy is applicable to the extent that it is not inconsistent with other
federal laws and regulations.97 Plaintiff’s injury allegedly occurred on a block of the Outer
Continental Shelf that is adjacent to Louisiana. The parties have not cited any reason why applying
Louisiana negligence principles would be inconsistent with other federal laws and regulations.
Therefore, this Court will apply Louisiana law.
C. Negligence Under Louisiana Civil Code Article 2315
Under article 2315 of the Louisiana Civil Code, “[e]very act whatever of man that causes
95
See id. at 324.
96
See, e.g., id. at 325; Little, 37 F.3d at 1075; Isquith ex rel. Isquith v. Middle South Utils., Inc., 847 F.2d
186, 198 (5th Cir. 1988), cert. denied, 488 U.S. 926 (1988).
97
43 U.S.C. § 1333(a)(2)(A); Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 355 (1969); see also
Dickerson v. Continental Oil Co., 449 F.2d 1209, 1213 (5th Cir. 1971) (noting that fixed platforms on the Outer
Continental shelf are artificial islands to be treated as “federal enclaves within a state” and are governed by the Outer
Continental Shelf Lands Act) (citing Rodrigue, 395 U.S. 352).
19
damage to another obliges him by whose fault it happened to repair it.”98 That is, “where
circumstances create a duty to do so, the defendant must use reasonable care so as to avoid injuring
another person.”99 Therefore, all individuals have a duty “to avoid acts and omissions which
engender an unreasonable risk of harm to others”100 and “[t]he parameters of what constitutes fault
in Louisiana reach far and wide in order to hold people accountable for their harmful actions
regardless of whether or not their actions are covered by a [specific] statutory provision.”101
To determine whether to impose liability under this general negligence statute, Louisiana
courts conduct a duty-risk analysis.102 To establish liability, five elements must be proven: (1) the
defendant owed a duty to conform his conduct to a specific standard (duty element); (2) the
defendant’s conduct failed to conform to the appropriate standard (breach element); (3) the
defendant’s substandard conduct caused the plaintiff’s injuries (cause-in-fact element); (4) the
defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (scope of liability or
scope of protection element); and (5) the plaintiff suffered damages as a result (damages element).103
Although the questions of breach and causation are fact-driven inquiries typically left to the
98
La. C.C. art. 2315.
99
Tardo v. Autozone Stores, Inc., No. 10-3642, 2011 WL 4345064, at * 2 (E.D. La. Sept. 15, 2011)
(Feldman, J.).
100
Stephens v. State Through Dep’t of Transp. & Dev., 440 So.2d 920, 925 (La. App. 2 Cir. 1983), writ
denied, 443 So.3d 1119 (La. 1984); see also Seals v. Morris, 410 So.2d 715, 718 (La. 1981) (“In all cases, duty can
be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like
circumstances.”) (citations omitted).
101
Bethea v. Modern Biomedical Servs., Inc., 704 So.2d 1227, 1233 (La. App. 3 Cir. 1997), writ denied,
709 So.2d 760 (La. 1998).
102
Lemann v. Essen Lane Daquiris, Inc., 923 So.2d 627, 632-33 (La. 2006).
103
Westchester Fire Ins. Co. v. Haspel-Kansas Inv. P’ship, 342 F.3d 416, 419 (5th Cir. 2003) (citing
Pinsonneault v. Merchants & Farmers Bank & Trust Co., 816 So.2d 270, 275-76 (La. 2002)); Lemann, 923 So.2d at
633.
20
fact-finder,104 the question of whether a duty is owed, as well as the scope of that duty, is a question
of law.105 Summary judgment is proper “only where no duty exists as a matter of law and no factual
or credibility disputes exist.”106
Here, Blanchard argues that it owed Plaintiff no duty because Blanchard was not tasked with
maintaining the safety of the scaffolding.107 However, by this argument, Blanchard fails to consider
that this is not the duty that Plaintiff alleges Blanchard violated. Instead, Plaintiff contends that
Blanchard had a duty under the Louisiana general negligence statute to conduct its work in a
reasonably safe manner, which Plaintiff alleges was violated when Blanchard created an
unreasonable risk of harm by allowing a slippery substance consisting of detergent and oil to fall
onto the handrails of the scaffolding making Plaintiff unable to break his fall by grabbing the
handrail. On this motion for summary judgment, the facts must be taken in the light most favorable
to Plaintiff, who has provided sworn testimony as evidence that Blanchard employees were cleaning
the pipe directly overhead of Plaintiff at the time of the incident and that Plaintiff was unable to
break his fall because the Blanchard employees allowed a mixture of detergent and oil to fall on the
handrail below.108 Assuming these facts as true for the purpose of this motion, it is not implausible
that Blanchard employees were working in the area at the time of the incident, such that under the
Louisiana Civil Code, they would have had a duty to conduct their work in a reasonably safe manner
104
Brewer v. J.B. Hunt Transp., Inc., 35 So.3d 230, 240 (La. 2010); Bridgefield Cas. Ins. Co. v. J.E.S., Inc.,
29 So.3d 570, 574-575 (La. App. 1 Cir. 2009).
105
Ellison v. Conoco, Inc., 950 F.2d 1196, 1196 (5th Cir. 1992); Brewer, 35 So.3d at 240.
106
Parish v. L.M. Daigle Oil Co., 742 So.2d 18, 25 (La. App. 3 Cir. 1999).
107
Rec. Doc. 65-2 at p. 6.
108
See Robertson Dep., Rec. Doc. 67-3 at pp. 14, 17-18, 81-82.
21
so as to “avoid acts and omissions which engender an unreasonable risk of harm to others.”109
At this time, the Court need not consider whether there was a breach of Blanchard’s duty,
because neither party has sought summary judgment as to the other elements of a negligence claim,
and the question of breach is a factual one to be left to the fact-finder, here the jury.110 Likewise,
the Court need not consider whether any breach of such duty caused the accident in question.
Instead, this motion presents only the question of whether Blanchard owed Plaintiff a duty, and, as
a matter of law, under Louisiana Civil Code article 2315, the Court finds that Blanchard had a duty
to perform its work in a reasonably safe manner.
D. Borrowed Servant Status
The OCSLA, 43 U.S.C. § 1333, et seq., applies to Plaintiff’s action because he was injured
on a platform located on the Outer Continental Shelf, off the Louisiana coast. The OCSLA provides
that the LHWCA, 33 U.S.C. §§ 901-950, regulates the right to compensation of an injured platform
worker.111 Specifically, the LHWCA prevents an employee from bringing a tort action against his
employer, thereby limiting the injured employee to workers’ compensation as an exclusive remedy
against the employer.112 The Fifth Circuit has extended this immunity from tort action to borrowing
employers under the “borrowed employee” doctrine.113 Accordingly, if Plaintiff is found to be a
borrowed employee, Blanchard, as the borrowing employer, is immune from Plaintiff’s negligence
109
Stephens, 440 So.2d at 925.
110
Defendants have demanded a jury.
111
43 U.S.C. § 1333(b).
112
See 33 U.S.C. §§ 904(a), 905(a).
113
See Melancon, 834 F.2d at 1243-44.
22
claims.
Whether Plaintiff is a borrowed employee is an issue of law for the Court to determine,114
however there are nine separate factual inquiries underlying “borrowed employee” status.115 If these
factual inquiries involve a genuine factual dispute, those factors must be submitted to the jury, unless
a “preponderance of other factual matters are not in dispute.”111 The Fifth Circuit has outlined the
following nine factors to be evaluated in determining whether an employee is to be considered a
borrowed employee of another:
(1) Who has control over the employee and the work he is
performing, beyond mere suggestion of details or cooperation?
(2) Whose work is being performed?
(3) Was there an agreement, understanding or meeting of the
minds between the original and the borrowing employer?
(4) Did the employee acquiesce in the new work situation?
(5) Did the original employer terminate his relationship with the
employee?
(6) Who furnished tools and place for performance?
(7) Was the new employment over a considerable length of time?
(8) Who had the right to discharge the employee?
(9) Who had the obligation to pay the employee?112
Although none of these factors or any particular combination of these factors is determinative, the
first factor (i.e. the question of who has control over the employee and the work) has been a factor
of central importance in some Fifth Circuit cases.113
114
Capps, 784 F.2d at 617 (citing Gaudet v. Exxon Corp., 562 F.2d 351, 357-58 (5th Cir. 1977)).
115
Melancon, 834 F.2d at 1244.
111
Gaudet, 562 F.2d at 358; see also Barrios v. Freeport-McMoran Resource Partners, LP, Nos. 93-0092,
93-0425, 1994 WL 90456 (E.D. La. Mar. 11, 1994) (Livaudais, J.).
112
Melancon, 834 F.2d at 1244.
113
Melancon, 834 F.2d at 1244-45 (citing Hebron v. Union Oil Co. of California, 634 F.2d 245, 247 (5th
Cir. Unit A Jan. 1981)). See also Brown, 984 F.2d at 676-77 (“[I]n many of [the Fifth Circuit’s] prior cases, [the
court] has considered the first factor–control–to be the central factor.”); Capps, 784 F.2d at 617 (noting that the first
factor is “the most important.”).
23
1. Who Had Control of the Employee?
In evaluating whether the borrowing employer, Blanchard, controlled and directed Plaintiff’s
work, “a careful distinction must be made between authoritative direction and control, and mere
suggestion as to details or the necessary co-operation, where the work furnished is part of a larger
undertaking.”114 In Melancon, the plaintiff had specialized welding skills, and the Fifth Circuit
clarified that such expertise will not bar a finding of borrowed employee status, where the borrowing
employer had no expertise in the area.115 The Fifth Circuit based its conclusion on the fact that the
borrowing employer could tell the plaintiff when to do the welding work and other kinds of work
and what welding to do, even though the plaintiff could choose the manner in which to do his
welding work according to his own professional judgment.116
In the instant case, Plaintiff could also choose the manner in which to build the scaffolding,
as that was within his area of expertise, but there are material facts in dispute as to whether Picard,
the Blanchard supervisor, assigned other types of work to Plaintiff and whether it was Picard or the
other Gulf South employee, Alonzo, who supervised Plaintiff. Notably, in Brown, the Fifth Circuit
reversed the district court on the basis of disputed issues of fact as to who controlled the employee
and whether there as an agreement or understanding between the borrowing and nominal employer,
stating that those factual determinations “should not have been taken from the jury.”118 Likewise,
114
Ruiz, 413 F.2d at 313.
115
Melancon, 834 at 1245.
116
Id. at 1241.
118
See Melancon, 834 F.2d at 1245 (“It is irrelevant that [plaintiff’s] primary job was welding, which was
an essential, although only incidental, aspect of [the oil company’s] business.”); Hitt, No. 92-2954, 1993 WL
488570, at *4 (E.D. La. Nov. 22, 1993) (Livaudais, J.).
24
the factual determination of who controlled Plaintiff’s work in this case should be decided by the
fact-finder unless the other factors overwhelmingly support Plaintiff’s borrowed employee status.
2. Whose Work Was Being Performed?
Plaintiff was performing Blanchard’s work. The fact that Gulf South was in the business of
scaffolding is not relevant to the determination that building the scaffolding was an essential part of
Blanchard’s platform refurbishment project.119 Therefore, this factor favors a finding of borrowed
servant status.
3. Was There an Agreement, Understanding, or Meeting of the Minds Between Gulf South
and Blanchard?
Absent a written contract,120 this factor favors borrowed employee status if there was a
meeting of the minds between Blanchard and Gulf South that Plaintiff would be taking instructions
from Blanchard.121 In Brown, the Fifth Circuit found that there existed factual disputes that should
be determined by the fact-finder when the plaintiff presented evidence that the defendant did not treat
him as an employee.122 Here, the factual disputes regarding the extent of Picard’s supervision of and
assignment of work to Plaintiff, which were relevant to the first factor, are also relevant to whether
119
See Melancon, 834 F.2d at 1245 (“It is irrelevant that [plaintiff’s] primary job was welding, which was
an essential, although only incidental, aspect of [the oil company’s] business.”); Hitt, No. 92-2954, 1993 WL
488570, at *4 (E.D. La. Nov. 22, 1993) (Livaudais, J.).
120
See Ruiz, 413 F.2d at 313 (“A formal agreement between the two employers is not considered
indispensable to the borrowed-servant relationship”).
121
Melancon, 834 F.2d at 1245.
122
984 F.2d at 674.
25
there was an expectation that Plaintiff would be receiving instructions from Blanchard.123 Therefore,
the jury should determine whether there was a meeting of the minds between Blanchard and Gulf
South.
4. Did the Employee Acquiesce in the New Work Situation?
The issue to be resolved under this factor is whether Plaintiff had an opportunity to observe
the conditions under which he was working and whether, after such an opportunity he chose to
continue working.124 The parties agree that Plaintiff acquiesced to the new work situation, and the
evidence supports a finding that this factor favors borrowed employee status.125
5. Did the Original Employer Terminate His Relationship with the Employee?
This factor does not require a lending employer to completely sever his relationship with the
employee, because such requirement would effectively obliterate the borrowed employee doctrine.126
Instead, this factor evaluates the lending employer’s relationship with the lending employee while
the borrowing occurs.127 Plaintiff relies on a number of facts to demonstrate that Gulf South did not
terminate its relationship with Plaintiff, but many of these facts only support a determination that
123
See Barrios, 1994 WL 90456, at * 3 (explaining that who had control of the Plaintiff was a disputed
material issue of fact that was also relevant to the court’s determination as to whether the contractor and the platform
owner had an agreement that the worker would be a borrowed employee).
124
Brown, 984 F.2d at 678.
125
Robertson Dep., Rec. Doc. 67; Ex. B at p. 43, lns 13-15.
126
Melancon, 834 F.2d at 1246 (citing Capps, 784 F.2d at 617-18).
127
Capps, 784 F.2d at 617-18 (emphasis added).
26
Gulf South maintained a relationship with Plaintiff when he was not on the platform.128 Instead, the
emphasis should be on Plaintiff’s relationship with Gulf South while he was working on the platform.
Plaintiff claims that if he could not make a work hitch he would contact Gulf South, that a Gulf South
foreman conducted a job safety analysis every morning, and that a Gulf South incident report was
completed following the accident. However, Blanchard presents contrary evidence that Plaintiff
would notify Picard if he could not make a work hitch and that the job safety analysis was conducted
by Plaintiff’s co-worker, who was merely a more senior scaffold builder, not a supervisor. This
disputed issue of fact should be decided by a jury, as both parties have presented contradictory
evidence.
6. Who Furnished the Tools and the Place of Performance?
This factor emphasizes whether the borrowing or the lending employer furnished Plaintiff’s
tools, place of performance, and other necessities, such as food, lodging, and transportation.129 In
Melancon, the Fifth Circuit affirmed the district court’s finding that this factor favored borrowed
employee status even when the lending employer furnished the welding equipment, because the
borrowing employer furnished the place of employment, transportation, food, and lodging.130
Similarly, in the pending case, Blanchard did not furnish the tools or equipment necessary to build
the scaffolding, but Blanchard did provide, through its contract with Hilcorp, the platform,
128
Rec. Doc. 67 at pp. 13-14 (noting that Gulf South scheduled Plaintiff’s days off, approved vacation time,
approved rate of pay and any pay increases, notified Plaintiff of the time, date, location and name of the crew boat
providing transportation to the platform, and provided compensation benefits).
129
See Melancon, 834 F.2d at 1246 (evaluating who provided the tools, place of performance,
consumables, transportation to and from work, and lodging).
130
Id.
27
transportation, food, and lodging. Plaintiff argues, without citing any authority, that this factor
should be neutral because Hilcorp, not Blanchard, furnished the place of performance, lodging, food,
and transportation. In evaluating whether Plaintiff is a borrowed employee, the emphasis is on the
relationship with the borrowing employer versus the lending employer. Clearly, here, Gulf South did
not provide the platform, food, lodging, or transportation. Hilcorp provided the place of performance,
meals, lodging and transportation to and from the platform to Blanchard, and, by extension, to
Plaintiff, based on Hilcorp’s contract with Blanchard. Therefore, this factor weighs in favor of
finding borrowed employee status because Plaintiff, like other Blanchard employees, received meals,
lodging, and transportation to and from the platform from Hilcorp.
7. Was the New Employment Over a Considerable Length of Time?
“Where the length of time the employee has worked for the borrowing employer is
considerable this factor is significant and supports a finding that the employee was a borrowed
employee[,]” but if the employment is not for a considerable length of time, this factor is neutral.131
In Capps, the Fifth Circuit found that this factor was neutral when the employee only worked in the
new work situation for three days; however, the court noted that it had “previously affirmed a finding
of borrowed employee status when the employee’s injury occurred on the first day of the job.”132
Plaintiff had worked on the platform approximately one month prior to his accident. Although there
is no set amount of time that will be deemed considerable, the Fifth Circuit found that this factor was
131
Foreman, 97-2038, p. 8 (La. App. 1Cir. 9/25/98); 722 So.2d 1, 7; see also Capps, 784 F.2d at 618.
132
784 F.2d at 618 (citing Champagne v. Penrod Drilling Co., 341 F.Supp. 1282, 1284 (W.D. La. 1971),
aff’d per curiam, 459 F.2d 1042 (5th Cir. 1972).
28
neutral when the employee was on the platform for one month prior to his accident.133 In light of the
Fifth Circuit’s finding in Capps, it is appropriate here to find that this factor is neutral here, because
Plaintiff was working on the platform for one month prior to his accident.
8. Who Had the Right to Discharge the Employee?
Fifth Circuit precedent has stated that the proper focus when considering who has the right
to discharge the employee is whether the borrowing employer has the right to terminate the
borrowed employee’s services; the issue is not whether the borrowing employer could discharge the
employee from the lending employer.134 The parties agree that Blanchard, through its supervisor
Picard, had the right to terminate Plaintiff’s services and have him removed from the platform if
Picard felt that Plaintiff’s work was unsatisfactory. Therefore, this factor favors finding Plaintiff to
be a borrowed employee.
9. Who Had the Obligation to Pay the Employee?
It is clear that an arrangement whereby the lending employee pays the employee and is
reimbursed by the borrowing employer for the wages supports a finding of borrowed employee
status.135 Here, Picard signed Plaintiff’s time tickets and Blanchard paid Gulf South, who in turn paid
Plaintiff. This arrangement, as the parties both recognize, favors a finding of borrowed employee
status.
133
Brown, 984 F.2d at 679.
134
Capps, 784 F.2d at 618.
135
See Capps, 784 F.2d at 618; see also Brown, 984 F.2d at 679 (finding that this factor favors finding
borrowed employee status where the borrowing employer must verify the employee’s time tickets).
29
With respect to the question of whether he is a borrowed employee of Blanchard, Plaintiff has
raised a genuine issue of material fact under three of the factors: (1) who had control over the
employee; (2) whether there was a meeting of the minds between Blanchard and Gulf South; and (3)
whether Gulf South terminated its relationship with Plaintiff. While none of the factors or any
specific combination thereof is decisive, Fifth Circuit precedent has recognized the importance of the
first two of these in the resolution of the borrowed employee question.136 Thus, even though the
numerical majority (five) of the nine factors supports borrowed employee status, the existence of
factual disputes relating to the factors found by the Fifth Circuit to be centrally important warrants
the denial of summary judgment.
III. Conclusion
In conclusion, Blanchard’s motion for summary judgment will be denied for two reasons.
First, under Louisiana law, the question of whether a duty exists is a question of law properly decided
by the court. Louisiana law provides for a general duty of reasonable care, and Plaintiff has put forth
evidence to demonstrate that Blanchard was working in the area at the time of the incident.
Therefore, Blanchard had a duty to conduct its work in a reasonably safe manner, and Plaintiff should
be allowed to present evidence to determine if that duty was breached and if any such breach was
negligent. This Court finds that Blanchard has not carried its summary judgment burden to
demonstrate that there is no disputed issue of material fact regarding Plaintiff’s negligence claim
because Blanchard has only argued that it owed no duty to Plaintiff, and the record supports a finding
that Blanchard did owe Plaintiff a duty.
136
See Melancon, 834 F.2d at 1245; Hebron, 634 F.2d at 247; West, 765 F.2d at 531; Capps, 784 F.2d at
617; Ruiz, 413 F.2d at 312-13.
30
Second, this Court finds that Blanchard has failed to demonstrate that there is no genuine
issue of material fact that Plaintiff was a borrowed employee of Blanchard. Whether Plaintiff is a
borrowed employee is a matter of law for the Court to decide, but summary judgment on this basis
is inappropriate where, as here, factual disputes must be resolved in order to determine whether
Plaintiff is a borrowed employee. Accordingly,
IT IS HEREBY ORDERED that Blanchard’s Motion for Summary Judgment137 is DENIED.
NEW ORLEANS, LOUISIANA, this 12th day of December, 2012.
____
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
137
Rec. Doc. 47.
31
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