Bass v. Superior Energy Services, Inc. et al

Filing 95

ORDER AND REASONS denying 42 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown on 2/3/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSHUA BASS

CIVIL ACTION

VERSUS

NO. 13-5175

SUPERIOR ENERGY SERVICES, INC. et al.

SECTION: “G”(4)

ORDER AND REASONS
In this litigation, Plaintiff Joshua Bass, who worked for Nabors Offshore Services
(“Nabors,”) has filed suit against Superior Energy Services (“Superior,”) a co-contractor on a
“gravel pack operation” that the two companies were performing for Energy XXI GOM, LLC
(“Energy XXI”)1 on Energy XXI’s “West Delta 73” offshore platform; Bass seeks damages for
injuries he allegedly sustained while moving heavy equipment on that platform. Before the Court
is Superior’s “Motion for Summary Judgment,”2 in which Superior seeks dismissal of Bass’s
negligence claims against it because, allegedly, as a matter of law, it owed no duty to Bass.3 After
considering the complaint, the pending motion, the memoranda in support, the memoranda in
opposition, the record, and the applicable law, the Court will deny the pending motion.

1

In an earlier Order, the Court granted Energy XXI’s unopposed motion for Summary Judgment, terminating
it from the case. See Rec. Doc. 67.
2

Rec. Doc. 42.

3

Rec. Doc. 42-1.

I. Background
A.

Factual Background
On June 28, 2012, Bass was working as a roustabout for Nabors, which had been hired as

an independent contractor by Energy XXI,4 on Energy XXI’s“West Delta 73,” a fixed offshore
platform on the Outer Continental Shelf off the coast of Louisiana.5 Superior, another independent
contractor hired by Energy XXI,6 was present at the platform with Nabors that day to perform a
“gravel pack” operation with Nabors.7 During this process, Superior was to take a 75-foot jumper
hose from its boat and attach it to the platform.8 To move the hose into position on the platform,
Nabors used its platform crane, which was operated by a Nabors employee.9 After the hose had been
partially moved so that one end sat on the floor of the platform’s pipe rack area and the other end
remained elevated, Bass, who was in the pipe rack area, attempted to move the hose by manually
pulling on it.10 The hose weighed over one thousand pounds,11 and Bass allegedly injured his neck
as he attempted to move the hose.12

4

Rec. Doc. 1-2 at p. 2; Rec. Doc. 42-1 at p. 1.

5

Rec. Doc. 49 at p. 1.

6

Rec. Doc. 1-2 at p. 2; Rec. Doc. 42-1 at p. 1.

7

Rec. Doc. 49 at p. 1.

8

Id. at p. 2.

9

Id.

10

Id.; Rec. Doc. 1-2 at p. 2.

11

Rec. Doc. 42-1 at pp. 2; 13.

12

Rec. Doc. 49 at p. 3.

2

B.

Procedural Background
Bass filed a complaint in the Civil District Court for the Parish of Orleans on June 28, 2013,

alleging that Superior’s and Energy XXI’s negligence caused his injuries.13 Energy XXI filed a
“Notice of Removal” in this Court on July 26, 2013. Energy XXI filed a “Motion for Summary
Judgment” on June 16, 2014.14 Bass did not oppose Energy XXI’s “Motion for Summary Judgment,”
and this Court granted the motion on July 22, 2014,15 terminating Energy XXI as a party. Superior
filed the pending “Motion for Summary Judgment” on June 20, 2014.16 Bass filed an “Opposition
to Superior Energy Service’s Motion for Summary Judgment” on July 1, 2014.17 On July 8, 2014,
with leave of Court, Superior filed a reply in support of its motion.18 On July 16, 2014, with leave
of Court, Bass filed a “Supplemental Opposition to Superior Energy Services, Inc.’s Motion for
Summary Judgment.”19 On August 7, 2014, with leave of Court, Superior filed a “Memorandum in
Response to Plaintiff’s Supplemental Memorandum.”20

13

Rec. Doc. 1 at p. 1.

14

Rec. Doc. 40.

15

Rec. Doc. 67.

16

Rec. Doc. 42.

17

Rec. Doc. 49.

18

Rec. Doc. 58.

19

Rec. Doc. 63.

20

Rec. Doc. 72.

3

II. Parties’ Arguments
A.

Superior’s “Motion for Summary Judgment”21
1.

Duty

In support of its “Motion for Summary Judgment,” Superior contends that is entitled to
summary judgment in its favor because, even assuming that a Superior supervisor told Bass to move
the hose, as Bass alleges, Bass will be unable to show that Superior owed him a duty.22 In support
of its argument, Superior relies upon the unpublished Fifth Circuit Court of Appeals case of
McCarroll v. Wood Group Management Services, Inc.23 According to Superior, the Fifth Circuit in
McCarroll affirmed the district court’s grant of summary judgment in an analogous situation where
the plaintiff claimed that the negligence of a co-contractor caused his injury.24
Superior asserts that the Fifth Circuit held in McCarroll that an independent contractor could
not be held liable under the plaintiff’s theory of “temporary supervision” because the independent
contractor did not have “supervisory authority” over the plaintiff by virtue of the plaintiff’s helping
its employees.25 Finding no supervisory authority, Superior contends, the Fifth Circuit concluded
that the independent contractor owed no duty to the plaintiff.26 Superior argues that Bass’s

21

Rec. Doc. 42.

22

Rec. Doc. 42-1 at p. 9 (citing Lemann v. Essen Lange Daiquiris, Inc., 2005-1095, 923 So.2d 627, 632–33
(La. 3/10/06)).
23

561 Fed. App’x 407 (5th Cir. 2014). The Court notes that under Fifth Circuit Rule 47.5.4, “[u]npublished
opinions issued on or after January 1, 1996 are not precedent, except under the doctrine of res judicata, collateral estoppel
or law of the case (or similarly to show double jeopardy, notice, sanctionable conduct, entitlement to attorney’s fees, or
the like).” 5TH CIR. R. 47.5.4.
24

Rec. Doc. 42-1 at pp. 9–10.

25

Id. at p. 10.

26

Id. at p. 10.

4

“argument in this case that he was ‘turned over’ to another company to be supervised is even more
tenuous than the situation in McCarroll,”27 because Bass “admitted through his own testimony” that
his immediate supervisor at all times remained Nabors employee Clyde Foreman.28 Thus, Superior
maintains, Bass “will be unable to establish that Superior was exercising ‘supervisory authority’
over him in this case.”29 Superior specifically quotes Foreman’s deposition, in which Foreman stated
that the “whole roustabout crew” (which included Bass) was participating in the gravel packing
operation pursuant to Foreman’s instructions,30 and that Bass was under no obligation to follow
instructions from Superior personnel.31
Superior also quotes the deposition of Earl Pradillo, another Nabors supervisor, stating that
he did not tell Bass that Bass was to take his instructions from any Superior employee.32 Pradillo,
according to Superior, also testified that Bass was supposed to take instructions from Foreman and
not any third-party companies.33 Accordingly, Superior argues that Bass “will be unable to establish
that Nabors granted Superior ‘supervisory authority’ over him, as is required under the applicable
U.S. Fifth Circuit jurisprudence to establish the existence of a duty on the part of Superior to
[Bass].”34

27

Id.

28

Id. at p. 11.

29

Id.

30

Id.

31

Id. at p. 12.

32

Id.

33

Id.

34

Id. at p. 13.

5

2.

Breach

Superior further argues that it is entitled to summary judgment in its favor because, “even
if it were assumed . . . that [Bass] could establish the existence of a duty . . . , [Bass] will be unable
to establish that Superior breached any such duty.”35 According to Superior, Bass alleges that
Superior was negligent because an unidentified Superior employee requested that Bass “move the
hose back.”36 Superior contends that Bass had “admitted that the Superior employee did not request
that [Bass] bend down and attempt to manually move an object that weighed over 1 ton while a
crane was at all times readily available and attached to the hoses.”37 Thus, according to Superior,
“[i]t is clear that, under these circumstances . . . [Bass] will be unable to establish any breach of duty
by Superior.”38 Superior argues that this conclusion is “supported by the well-settled case law which
holds that a principal is not responsible for the actions of an independent contractor when the
principal only gives general instructions instead of detailed direction concerning the method of
work.”39 Superior contends that Bass has alleged only that an unidentified Superior employee
provided “at most, a general request when he allegedly asked that the hose be moved back.”40
Superior argues that Bass “was at all times free to move the hose in the manner he deemed

35

Id.

36

Id. Superior denies that any of its employees requested that Bass move the hose. Id.

37

Id.

38

Id.

39

Id. (citing Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cir. 1989)).

40

Id.

6

appropriate, including by using the Nabors crane or by requesting help from his co-workers.”
Therefore, Superior asserts, it is not liable as a matter of law.41
B.

Bass’s Opposition
1.

Duty
a.

Supervisory Control

In opposition to the pending motion, Bass asserts that genuine issues of material fact
preclude the award of summary judgment to Superior, because “the main issue is whether Superior’s
employees instructed Mr. Bass to perform the task in which he was injured,” and because Bass
testified that “he was told by a Superior supervisor” to move the hose.42 Bass asserts that although
“Superior relies on the contract between Nabors and Energy [XXI]” in support of its assertion that
Nabors “retained control over its employees,” the facts of the situation at issue here “undermine that
reliance,” since “a Superior supervisor instructed Mr. Bass to perform the task which ultimately
injured him,” thereby assuming supervisory control over him.43
Indeed, Bass asserts, “the Nabors supervisor on the platform on June 28, 2012 testified that
neither he nor the rig manager were in charge of the jumper hose loading operation being
performed,” and “Mr. Foreman did not give Mr. Bass any instructions that day.”44 Bass maintains
that “[t]he only instructions given to [him] were those by the Superior supervisor who told him to
move the end of the jumper hose.”45
41

Id. at p. 14.

42

Rec. Doc. 49 at pp. 4–5.

43

Id. at p. 5.

44

Id.

45

Id.

7

Bass argues that the present situation is distinguishable from McCarroll, cited by Superior,
because the plaintiff in McCarroll “showed no evidence that the other independent contractor
working on the platform was supervising him when he was injured,” whereas Bass’s deposition here
“is evidence of Superior’s assumption of supervision over him.”46 Bass further asserts that
McCarroll is distinguishable from the present case because Foreman testified that “he was not in
a position on the rig or platform to give Mr. Bass instructions,” that he “gave Mr. Bass no
instructions for completing the work on June 28, 2012,” and that “neither he nor the Nabors crane
operator were in charge of the jumper hose placement operation.”47 Consequently, Bass argues,
Superior owed a legal duty to him based on “its control over the jumper hose loading task in which
Mr. Bass was injured.”48
Bass further asserts that “there is question of fact as to whether Mr. Bass should have been
assisting in the operation.”49 In support of this assertion, Bass cites the deposition of Ernest
Villejoin, Superior’s “second supervisor,” stating that platform personnel “only assisted” with
jumper hose placement operations “on occasion.”50 Bass also cites Foreman’s deposition in which
Foreman stated that he would not allow any employee to remain on the platform if that employee
was not involved with the jumper hose placement operation.51 According to Bass, the fact that he

46

Id.

47

Id. at pp. 5–6.

48

Id.

49

Id. at p. 7.

50

Id.

51

Id.

8

was not taken off the floor as unnecessary to moving the hose, but received no instructions from
Nabors supervisors, “begs the question of who was instructing [him] and supervising him.”52
Bass further asserts that “there is clearly a genuine issue of material fact on whether Superior
owed Mr. Bass a duty” because Bass’s expert, Bob Borison, “opined that, by instructing Mr. Bass
to move the end of the jumper hose, Superior took responsibility for supervising Mr. Bass and
should have provided adequate instructions to [him] in performing the work.”53 Bass maintains that
notwithstanding Superior’s assertions that he “could have refused to perform the task,” he “was
simply following acceptable industry standards by assisting a fellow working on the platform,” an
assertion confirmed by Foreman in his deposition, in which he stated that “all of the personnel on
the platform worked ‘as a team.’”54
Additionally, Bass asserts, Foreman, Villejoin, and David Kiser, the Superior supervisor, sted
in their depositions that the hose was in an unusual location, creating “a unique or rare situation that
required Superior’s supervisors to take control and supervise Mr. Bass.”55 Indeed, Bass argues, he
stated in his deposition that he was told in his training with Nabors that “he was to take instructions
from whoever’s in charge of the job.”56

52

Id.

53

Id. at p. 7.

54

Id. at pp. 7–8.

55

Id.

56

Id.

9

b.

Hazardous Condition

Bass asserts that under Louisiana law, the “the existence of a duty is a question of
law . . . [and] varies depends on the facts, circumstances, and context of each case.”57 Further, Bass
argues, “[a] contractor owes an obligation toward third persons to refrain from creating a hazardous
condition.”58 Applying these propositions to the facts here, Bass points to the remarks he made in
his deposition that: (1) he did not know how much the hose weighed; (2) he had never before lifted
or moved a jumper hose; and (3) he was not given any instruction on how to move the hose nor any
tools to move it.59 In these circumstances, he contends,“Superior’s instructions . . . created a danger
for which [he] was not adequately trained or instructed.”60
2.

Breach

Finally, Bass asserts that “the failure to provide adequate instructions was a breach of
Superior’s duty” to him, because: (1) Bass “was unfamiliar with the weight of the hose,” had “never
manually moved the end of the jumper hose before,” (2) because “proper instructions likely were
not covered in the JSA meeting” conducted by Superior if, as Villejoin testified, the hose being on
the floor was a rare situation; (3) because the Superior supervisor could have “signaled for the crane
operator to move the hose and reposition the hose, as that was the proper tool for moving the
hose.”61

57

Id. at 6 (citing Dupre v. Chevron U.S.A., 20 F.3d 154 (5th Cir. 1994)).

58

Id. (citing Lafont v. Chevron, U.S.A., Inc., 593 So.2d 416, 420 (La. App. 1 Cir. 1991)).

59

Id. at pp. 6–7.

60

Id. at p. 7.

61

Id. at pp. 8–9.

10

Further, Bass argues, Borison stated in his deposition that “it is unrealistic to think that the
Nabors hands [such as Bass] would not listen to the Superior supervisors when they tell a Nabors
employee what to do when the Superior supervisors were in charge of the entire operation and
telling the Nabors crane operator where to place the hose.”62 In these circumstances, Bass maintains,
“the lack of training and instruction was a breach of Superior’s duty.”63
Bass asserts that “it is clear that there are questions of fact as to whether Superior supervised
Mr. Bass and whether Superior’s supervision and instructions to Mr. Bass were the cause in fact of
Mr. Bass’s injuries.”64 These questions, according to Bass, make summary judgment improper.65
C.

Superior’s Reply in Further Support of Summary Judgment
In further support of its motion, Superior argues that Bass’s opposition “highlights that there

are no genuine issue [sic] of fact that preclude summary judgment in favor of Superior.”66 Superior
points out that Bass has cited no case law to support his arguments,67 maintains that it “remains
undisputed” that Superior “did not provide [Bass] with instructions on how to perform his job,” and
asserts that “Superior had no supervisory authority over [Bass].”68

62

Id.

63

Id.

64

Id.

65

Id.

66

Rec. Doc. 57 at p. 1.

67

Id.

68

Id.

11

1.

Duty

Addressing the issue of duty, Superior avers that Bass “admits” in his opposition that “he
was not told [by Superior] how to move the hose, only to do so,” further confirming that “he and he
alone chose the work methodology that he allegedly employed at the time of his accident.”69
Superior claims that in Joyner v. Enesco Offshore Co., a section of this Court granted
summary judgment in favor of the defendant in a case involving circumstances “nearly identical”
to those present here.70 In particular, Superior argues that the plaintiff in Joyner was injured while
carrying out an instruction given by an employee of another independent contractor. According to
Superior, the court in Joyner noted that the plaintiff was not given instructions on how to do his
job.71 Also important to the court, according to Superior, was that the plaintiff was free to choose
“an appropriate work method” and free to refuse any “unsafe work procedure.”72
Superior argues that the present case is analogous to Joyner, since Bass was not told how to
do the job, and made the decision to lift the hose in violation of Nabors’s own safety policies.73
Thus, according to Superior, Bass’s claim fails as a matter of law.74 Finally, Superior argues that
it remains undisputed that only Nabors had supervisory authority over Bass, a fact that allegedly
makes this case analogous to McCarroll.75

69

Id. at p. 2.

70

Id.

71

Id. at p. 3.

72

Id.

73

Id.

74

Id.

75

Id. at pp. 3–4.

12

2.

Borrowed Employee

Superior notes that Bass asserts that Superior exercised supervisory control over him by
requesting that he move the hose.76 In “claiming that Superior controlled and supervised him,”
Superior asserts, Bass admits that “he was a borrowed employee of Superior” within the scope of
the “borrowed employee doctrine” of the Longshore and Harbor Workers Compensation Act
(“LHWCA”).77 According to Superior, “it is well-settled that a company that ‘borrows’ another
company’s Longshore employee temporarily is entitled to tort immunity” under the LHWCA.78
Superior asserts that the “touchstone in determining borrowed employee status is control.”79
According to Superior, Louisiana courts make this determination by “look[ing] to who has control
over the employee and the work he is performing, beyond mere suggestion of details or
cooperation[.]”80 Thus, Superior contends, when Bass argues that Superior controlled him, he admits
that he was a borrowed employee of Superior, which in turn entitles Superior to tort immunity under
the LHWCA.81
D.

Bass’s Supplemental Opposition
In further opposition to Superior’s motion,82 Bass argues that job descriptions for positions

held by two Superior supervisors acting on the “West Delta 73” platform on the day Bass allegedly

76

Id. at p. 4.

77

Id.

78

Id.

79

Id.

80

Id. (citing Ortega v. Semco, LLC, 99-1296, 762 So.2d 276, 281 (La. App. 5 Cir. 5/30/00)).

81

Id. at p. 4.

82

Rec. Doc. 63.

13

sustained his injuries show that additional genuine issues of material fact exist, and “should preclude
summary judgment.”83
Bass alleges that David Kiser was Superior’s “Service Supervisor,” in charge of:
(1) supervising employees on site; (2) “assuring compliance customer and safety requirements;”
(3) maintaining adherence to “all safety and operations policies;” and (4) “planning assigning, and
directing work.”84 Bass avers that Kiser “would not be on the platform during the gravel pack
process,” making him unable to “assure compliance with customer and safety requirements” related
to the “hose loading process.”85 According to Bass, Kiser testifed that the “number two man” would
be present on the platform to supervise activities there.
Bass contends that Ernest Villejoin stated in his deposition that he was Superior’s “second
supervisor in charge,” and further argues that Villejoin “had primary responsibility among Superior
personnel on the platform to dictate how work would be performed, as well as where the hoses
would be placed.”86 Such responsibilities, Bass argues, exceed the duties set out in Villejoin’s job
description.87 According to Bass, Villejoin’s “Equipment Operator II” job description “does not
include many of the supervisory activities which [Villejoin] described in his deposition.”88 This

83

Rec. Doc. 63 at p. 1.

84

Rec. Doc. 63 at pp. 1-2.

85

Id. at p. 2.

86

Id. at p. 2.

87

Id.

88

Id.

14

discrepancy, argues Bass, presents an issue of fact regarding whether Villejoin supervised Bass at
the time Bass was allegedly injured.89
If Villejoin acted as a “second supervisor,” Bass argues, he “should be held to the duties of
a supervisor as described by Superior, which included ‘ensuring compliance with customer and
safety requirements[’] and ‘supervision of the employees on site while performing the job.’”90 Thus,
Bass argues, although Villejoin “may not have told” Bass “exactly how to perform the job,”
Villejoin still “was supervising the work being performed, including the task he assigned” to Bass.91
In this capacity, Bass contends, Villejoin had “a duty to protect” him “from the creation of a
hazardous condition.”92 According to Bass, Villejoin breached that duty by “failing to properly
supervise [Bass]” and failing to “tell him how to perform” the task of moving the hose.93
Bass argues that Joyner v. Ensco Offshore Co., cited by Superior,94 is distinguishable from
this case.95 Specifically, Bass contends, the court in Joyner considered the plaintiff’s many years of
experience in a specialized technical field to be so “critical” to its analysis that it relieved the
defendant of any duty to “prevent the plaintiff form injuring himself while performing” the task that
the defendant assigned to him.96 According to Bass, such facts are not present in case: Bass had been

89

Id. at p. 2.

90

Id. at pp. 2-3.

91

Id. at p. 3.

92

Id. at p. 4.

93

Id. (citing Lafont, 593 So.2d at 420).

94

Rec. Doc. 57.

95

Rec. Doc. 63 at p. 3.

96

Id.

15

a roustabout for Nabors for six months, and had less than two years’ experience as a roustabout at
the time he began working for Nabors.97
E.

Superior’s Supplemental Arguments in Favor of Summary Judgment
In response to Bass’s opposition, and in further support of its motion,98 Superior asserts that

the two job descriptions are silent about Superior employees’ relationships with third parties or cocontractors, and contends that Bass fails to explain why these job descriptions create a genuine issue
of material fact.99
Moreover, Superior avers, Bass has not refuted the “undisputed fact” that Nabors did not
give up supervisory authority over him, as is required “under the applicable Fifth Circuit
jurisprudence.”100 On this point, Superior notes that Nabors’s contract with Energy XXI provided
that Nabors will be “in charge” of its personnel, and emphasizes that the Fifth Circuit has discussed
the importance of contractual language in determining “control” over an independent contractor.101
Superior also argues that “it is undisputed” that Foreman and Pradillo “were at all times present
during, and participating in, the operation in question,” and “unequivocally testified that Nabors
retained supervisory authority over [Bass].” According to Superior, Nabors’s contract, plus
Foreman and Pradillo’s statements, “foreclose[] any argument by Plaintiff that his employer ‘turned
him over’” or “transferred supervisory authority over him to Superior.”102

97

Id.

98

Rec. Doc. 72.

99

Id. at p. 1.

100

Id. (citing McCarroll, 561 Fed. App’x 407).

101

Id. at pp. 1-2 (citing Ainsworth v. Shell Offshore, Inc., 829 F.2d 548 (5th Cir. 1987).

102

Id. at p. 2.

16

Superior also argues that Bass failed to distinguish Joyner for two reasons.103 First, Superior
argues, Bass has failed to distinguish Joyner because the court in Joyner found that the defendant
did not provide the plaintiff with specific instructions regarding how to do his job” and therefore
owed no duty to the plaintiff.104 Second, Superior contends, the Joyner plaintiff, like Bass, “chose
his own work method and . . . possessed stop work authority.”105 Moreover, Superior argues, Bass
was like the Joyner plaintiff in that he “was far from being an inexperienced ‘green’ employee,”
having stated in deposition that he had worked as a roustabout for around three years, had moved
co-flex hoses “on many occasions before the day of his alleged incident.”106 Further, Superior avers,
Pradillo stated in his deposition that Bass had received safety training through Nabors, and Bass has
not controverted this assertion.107
Finally, Superior cites several unpublished decisions from the Eastern and Western Districts
of Louisiana. First, Superior cites Verdin v. Kerr-McGee Corporation in support of the propositions
that (1) “there is no duty between two co-independent contractors working for a common principal
who have no contractual relationship;” (2) if, in the alternative, there is a duty, the contract between
the plaintiff’s employer and the common principal may create an independent contractor relationship
in which the plaintiff is in control of the “means or manner of all work or services contracted for,”

103

Id.

104

Id. at p. 3.

105

Id.

106

Id. at pp. 3–4.

107

Id.

17

negating any breach of the duty; and (3) co-contractors who make “suggestions or recommendations
which need not necessarily be followed” cannot establish liability as a matter of law.108
Second, Superior alleges that “analogous cases” decided under the “relaxed standard” of the
liability created by the Jones Act demonstrate that Bass cannot meet the more stringent standards
of Louisiana law.109 Specifically, Superior argues, in Williams v. International Construction Group,
a section of this Court granted summary judgment in favor of the defendant in a case involving a
plaintiff who was allegedly injured while moving a heavy object, and who argued that the defendant
had not provided him with proper training and supervision.110 Superior maintains that the court, in
granting summary judgment, pointed out that the plaintiff: (1) chose to manually lift the object, even
though he could have requested that the crane operate move the object; (2) could have asked for
help, had “stop work authority;” and (3) “was trained to get help moving heavy objects.”111
III. Law and Analysis
A.

Law
1.

Legal Standard: Summary Judgment

In deciding a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56,
the Court will grant the moving party’s request only if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”112 Material facts are those facts

108

Id. (citing Verdin, 1997 WL 39308 at *2 (E.D. La. Jan. 30, 1997)).

109

Id. atpp. 4-5.

110

Id. at 5 (citing Williams, 2011 WL 1116312 (E.D. La. Mar. 23, 2011)).

111

Id.

112

FED. R. CIV. P. 56(a).

18

which “might affect the outcome of the suit”113 under the applicable substantive law.114 A “genuine
dispute” of material fact exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”115
On a motion for summary judgment, the Court “construes all facts and inferences in the light
most favorable to the nonmoving party.”116 If the nonmoving party will have the burden of proof on
an issue, the Court may only grant summary judgment against that party if “the evidence favoring
[it] is insufficient to enable a reasonable jury to return a verdict in her favor.”117 Summary judgment
“may not be thwarted by conclusional allegations, unsupported assertions, or presentation of only
a scintilla of evidence,”118 and even “when evidence exists in the summary judgment record but the
nonmov[ing party] fails even to refer to it in response to the motion for summary judgment, that
evidence is not properly before the district court.”119

113

Id.

114

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

115

Rogers v. Bromac Title Serv., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014) (citations omitted).

116

Id. (citations omitted).

117

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), overruled on other
grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994).
118

Id. (citations omitted).

119

Malacara v. Gerber, 353 F.3d 393, 405 (5th Cir. 2003).

19

2.

OCSLA

It is undisputed that the alleged accident at issue here occurred on the Outer Continental
Shelf (“OCS”) off the coast of Louisiana. Both parties therefore appear to agree that the Outer
Continental Shelf Lands Act (“OCSLA”)120 is applicable here.121
a.

Incorporation of State Law

OCSLA was enacted “to define a body of law applicable to the seabed, the subsoil, and the
fixed structures . . . on the [OCS].”122 OCSLA provides that “the civil and criminal laws of the
adjacent state” apply to parts of the OCS “which would be within the area of the State if its
boundaries were extended seaward to the outer margin of the [OCS].”123 The Fifth Circuit has held
that “for state law to apply as surrogate federal law” pursuant to OCSLA, “three conditions must be
met:” First, [t]he controversy must arise on a situs covered by OCSLA (i.e. the subsoil seabed, or
artificial structures permanently or temporarily attached thereto;” Second, “[f]ederal maritime law
must not apply of its own force;” and Third, “[t]he state law must not be inconsistent with federal
law.”124
b.

LHWCA

Superior asserts that “[a]s an employee of Nabors working on a fixed platform on the OCS,
[Bass’s] exclusive remedy against Nabors is to receive benefits under the [LHWCA].”125 OCSLA

120

43 U.S.C. 1331 et seq.

121

Rec. Doc. 49–1 at p. 1.; Rec. Doc. 42–7 at p. 1; Rec. Doc. 49 at p. 6.

122

Rodrigue v. Aetna Cas. and Surety Co., 395 U.S. 352, 355–56 (1969).

123

43 U.S.C. § 1333(2)(a).

124

Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 782–83 (5th Cir. 2009) (en banc).

125

Rec. Doc. 42–1 at p. 2.

20

provides that “compensation shall be payable under the provisions of the [LHWCA]” for “disability
or death of an employee resulting from any injury occurring as a result of operations conducted on
the OCS for the purposes of exploring for, developing, removing, or transporting by pipeline the
natural resources . . . of the subsoil and seabed”126 The Fifth Circuit instructs that courts, in
determining whether the LHWCA applies to an action, are to ascertain whether the requisite “situs”
and “status” are present through the following three inquiries: first, “whether the injury occurred on
an OCSLA situs;” second, “whether OCSLA makes state law applicable;” and third, whether “the
injured party’s status makes the LHWCA applicable under OCSLA.”127
The LHWCA, as codified at 33 U.S.C. § 903, states that “[e]xcept as otherwise provided in
this section, compensation shall be payable under this chapter in respect of disability or death of an
employee” At § 904, the LHWCA provides that “[c]ompensation shall be payable irrespective of
fault as a cause for the injury.”128 Further, at § 905(a), the LHWCA provides that “the liability of
an employer prescribed in section 904 shall be exclusive and in place of all other liability of such
employer to the employee.129 Accordingly, the statute, when applicable, establishes an exclusive,
no-fault compensation regime for claims by employees against employers.130

126

Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 375 (1985).

127

Demette v. Falcon Drilling Co., Inc., 280 F.3d 492, 496–98 (5th Cir. 2002) overruled on other grounds by
Grand Isle Shipyard v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir. 2009) (en banc). See also Hudson v. Schlumberger
Tech. Corp., 452 Fed. App’x 528 (5th Cir. 2011) (holding that the LHWCA applies by virtue of OCSLA if “the employee
meets the situs and status requirements of § 1333”).
128

Id.

129

33 U.S.C. § 905(a). One treatise observes that the “Section 905(a) bar . . . is broadly construed as a shield
against tort liability.” THOMAS J. SCHOENBAUM, 1 ADMIRALTY AND MARITIME LAW § 7–4 (5th Ed. 2014).
130

See THOMAS J. SCHOENBAUM, 1 ADMIRALTY AND MARITIME LAW § 7–1 (5th Ed. 2014) (“In return for
compelling the employer to pay compensation without proof of negligence, the [LHWCA] provides a statutory scheme
of benefits which are substantially less than tort damages, and grants the employer immunity from tort liability,
regardless of how serious its fault may have been.”).

21

According to Superior, “it is well-settled that a company that ‘borrows’ another company’s
Longshore employee temporarily is entitled to tort immunity” under the LHWCA.131 Addressing
this issue, the Fifth Circuit has held that the LHWCA applies where the maritime worker was an
employee or a “borrowed employee” of the defendant.132 Borrowed employee status is an issue of
law.133 Nine factors determine whether a plaintiff is a borrowed employee within the meaning of the
LHWCA:
1. Who has control over the employee and the work he is performing, beyond
mere suggestions 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 has the right to discharge the employee?
9. Who had the obligation to pay the employee?134

131

Id.

132

Alday, 750 F.2d at 375–76.

133

Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244 (5th Cir. 1988).

134

Alday, 750 F.2d at 376.

22

In determining whether a borrowed employee-employer relationship exists, no single factor
is decisive, and no fixed test is used.135 However, the Fifth Circuit has indicated that “certain of these
factors may be more important that others.”136 Specifically, the Fifth Circuit has given special weight
to the “[1] control over the employee[,] . . . [2] [t]he furnishing of tools and the place of work, [3]
whether the payroll employer has actually terminated his relationship with the employee now
working on another’s premises, and [3] the duration of the ‘borrowing’ relationship and the
consequent acquiescence or not of the employee.”137
3.

Duty

Although the parties dispute whether Bass’s claims are barred by the LHWCA, it is
undisputed that Bass’s claims, if not barred, are governed by Louisiana law. Applying Louisiana law
here, Bass alleges that Superior was negligent in instructing him to move the hose. Article 2315 of
the Louisiana Civil Code provides that “[e]very act whatever of man that causes damage to another
obliges him by whose fault it happened to repair it.”138 Article 2316 of the Louisiana Civil Code
provides that “[e]very person is responsible for the damage he occasions not merely by his act, but
by his negligence, his imprudence, or his want of skill.”139 To prove negligence under Louisiana law,
the plaintiff must show that: (1) “the defendant had a duty to conform his conduct to a specific
standard;” (2) “the defendant’s conduct failed to conform to the appropriate standard;” (3) “the

135

West v. Kerr-McGee Corp., 765 F.2d 526, 531 (1985) (“[N]either control nor any other single answer to the
inquiries ‘is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship.’”)
136

Alday, 750 F.2d at 376.

137

Id.

138

LA. CIV. CODE art. 2315.

139

LA. CIV. CODE art. 2316.

23

defendant’s substandard conduct was a cause in fact of the plaintiff’s injuries;” (4) “the defendant’s
substandard conduct was a legal cause of the plaintiff’s injuries;” and (5) “actual damages.”140
In Lemann v. Essen Lane Daiquiris, the Louisiana Supreme Court held that the “threshold
issue” of whether defendant owed a duty “is a question of law.”141 In determining whether the
defendant owed a duty, the Louisiana Supreme Court instructs that:
[T]he court must make a policy decision in light of the unique facts and
circumstances presented. The inquiry is whether the plaintiff has any law (statutory,
jurisprudential, or arising from general principles of fault) to support the claim that
the defendant owed him a duty.142
Although duty is a question of law, Louisiana courts do not grant summary judgment on the issue
of duty where factual disputes exist or where credibility determinations are required.143
B.

Analysis
1.

OCLSA

The parties do not dispute that OCSLA governs the present action, and that either Louisiana
law or the LHWCA therefore controls here. As noted above, the Fifth Circuit has held that “for state
law to apply as surrogate federal law” pursuant to OCSLA, “three conditions must be met:” (1) [t]he
controversy must arise on a situs covered by OCSLA (i.e. the subsoil seabed, or artificial structures
permanently or temporarily attached thereto;” (2) “[f]ederal maritime law must not apply of its own

140

Lemann, 2005-1095, 923 So.2d at 633 (La. 3/10/06).

141

Id.

142

923 So.2d 627, 633

143

Parish v. L.M. Daigle Oil Co., Inc., 98-1716, 742 So.2d 18, 10–11 (La. App. 3 Cir. 6/23/99) (“Summary
judgment is proper only where no duty exists as a matter of law and no factual or credibility disputes exists.”); Coates
v. Nettles, 563 So.2d 1257, 1259 (La. App. 1 Cir. 1990) (“Where there is no factual dispute which exists and no
credibility determination required, the question of the existence of a duty is a legal question within the province of the
trial judge.”). See also Robertson v. Blanchard Contractors, Inc., No. 11-1453, 2012 WL 6202988
(E.D. La. Dec. 12, 2012) (Brown, J) (same).

24

force;” and (3) “[t]he state law must not be inconsistent with federal law.”144 Here, it is undisputed
that the controversy arose on a fixed offshore platform, a situs covered by OCSLA.145 Further, it also
appears undisputed that the facts at issue here do not implicate federal maritime law.146 Finally,
although the parties dispute whether the LHWCA bars Bass’s negligence claims against superior
(a dispute addressed below), the parties do not argue that Louisiana law is inconsistent with federal
law, and the Court finds no inconsistencies that would preclude the application of Louisiana law
here. Therefore, since OCLSA applies, either Louisiana law or the LHWCA controls here.
2.

LHWCA

In its reply in further support of summary judgment, Superior asserts that to the extent Bass
claims that Superior “controlled and supervised him,” he“admit[s] that he was a borrowed employee
of Superior.”147 Although “borrowed employee” status is an issue of law governed by the analysis
of the factors set forth in Alday, of which control is one,148 no single factor is dispositive of the
inquiry.149 In its briefing related to borrowed employee status, Superior does not cite, much less
apply, the nine Alday factors. Instead, Superior states that:
It is well-settled that a company that “borrows another company’s Longshore
employe temporarily is entitled to tort immunity under the LHWCA. The touchstone
in determining borrowed employee status is “control” (i.e. who has control over the

144

Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 782–83 (5th Cir. 2009) (en banc).

145

Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352 (1969) (holding that OCSLA applied in an action arising
from deaths occurring on fixed offshore drilling structures).
146

See Id. at 359 (“Drilling platforms are not within admiralty jurisdiction.”) (citations omitted).

147

Rec. Doc. 57 at p. 4.

148

Alday, 750 F.2d at 375–76.

149
West v. Kerr-McGee Corp., 765 F.2d 526, 531 (1985) (“[N]either control nor any other single answer to the
inquiries ‘is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship.’”).

25

employee and the work he is performing, beyond mere suggestion of details or
cooperation?)150
In light of Superior’s briefing on this point, the Court is unable to determine, as a matter of
law, how the application of the nine Alday factors require this Court to find that Bass was Superior’s
borrowed employee. To the extent that Superior argues that Bass’s allegations of “supervisory
control” are relevant to the inquiry, the Court notes that this first of nine Alday factors is disputed
by the parties here. In its briefing related to negligence, Superior contends that Nabors’s contract
with Energy XXI establishes that “Nabors alone is authorized to instruct their employees on how
they do their work.”151 Bass, addressing this point as it relates to negligence, cites Foreman’s
deposition in support of the proposition that “[n]either the rig manager, Mr. Pradillo, nor the crew
supervisor, Mr. Foreman, were in charge of the job being performed on June 28, 2012.”152 Superior
cites no authority supporting the proposition that these alleged circumstances conclude the borrowed
employee inquiry, and offers no argument directed toward the other eight Alday factors. Taking the
asserted facts and drawing all inferences in Bass’s favor, genuine issues of material fact exist and
the Court therefore cannot conclude, as a matter of law, that Bass was Superior’s borrowed
employee.
3.

Negligence
a.

Duty

In support of its motion, Superior asserts that “[i]t is clear that [Bass] will be unable to
establish that Nabors granted Superior ‘supervisory authority’ over him as is required under the

150

Rec. Doc. 57 at p. 4.

151

Rec. Doc. 42–1 at p. 5 (citing Rec. Doc. 42–3 at pp. 6; 8; 10).

152

Rec. Doc. 49 at p. 2 (citing Rec. Doc. 49–2 at pp. 8–9).

26

applicable U.S. Fifth Circuit jurisprudence to establish the existence of a duty on the part of Superior
to Plaintiff.”153 Bass, in turn, contends that “when a Superior supervisor instructed Mr. Bass to
perform the task which ultimately injured him, Nabors lost supervisory control over Mr. Bass.”154
In support of its argument that “the applicable U.S. Fifth Circuit jurisprudence” forecloses
Bass from establishing the existence of a duty here, Superior cites McCarroll v. Wood Group, an
unpublished, and thus non-precedential, Fifth Circuit opinion which it claims is “analogous” to the
present case.155 In McCarroll, the plaintiff, an employee of an independent contractor who was
allegedly injured while working on a drilling platform, sued the successor in interest of another
independent contractor also working on the drilling platform at the time he was allegedly injured.156
In that case, the plaintiff’s supervisor instructed him to assist with unloading containers attached to
a platform crane, during which task a flagman employed by the defendant would signal to the
defendant’s crane operator to move containers onto the platform, whereupon the plaintiff would
assist with guiding the containers and disconnecting the crane rigging.157 During the operation, the
plaintiff retrieved a pry bar to dislodge the crane rigging, and subsequently slipped on the platform,
which was wet from rainfall, leading to his alleged injuries.158 The plaintiff sued the defendant,
claiming that he had been “handed over” to the defendant to assist with the operation, and was under

153

Rec. Doc. 42–1 at pp. 12–13.

154

Rec. Doc. 49 at p. 5.

155

Rec. Doc. 42–1 at pp. 9–10 (citing 561 Fed. App’x 407).

156

561 Fed. App’x at 408.

157

Id. at 408–9.

158

Id. at 409.

27

the defendant’s “supervisory control” at the time he was allegedly injured.159 The district court
granted summary judgment to the defendant, finding that the defendant owed the plaintiff no duty,
since the defendant had not “exercise[d] supervision or control” over the plaintiff.160 The United
States Court of Appeals for the Fifth Circuit affirmed, reasoning that:
It is clear that [the defendant] had no contractual or employment relationship with
[the plaintiff] or with [the plaintiff’s employer]. The tools and equipment that were
supplied to [the plaintiff], including the pry bar [the plaintiff] retrieved from [his
employer’s] toolshed immediately before the accident, were supplied by [the
plaintiff’s employer] and not [the defendant]. It was [the plaintiff’s employer’s]
foreman, not [the defendant’s] employee, who told him to assist with the cargo
transfer operations. [The plaintiff] has presented no evidence, and thus created no
fact dispute, that during this operation he received instruction, direction, or materials
from [the defendant’s] employee. The fact that the [plaintiff’s employer’s] supervisor
apparently did not remain to oversee [the plaintiff’s] work assisting [the defendant]
does not alter the analysis, as [the plaintif] was still working under [his employer’s]
supervisor's order to help with the unloading.161
Contrary to Superior’s assertions, McCarroll does not conclude the Court’s inquiry on the duty
question. In McCarroll, the summary judgment record established that only the plaintiff’s employer
gave him any relevant orders. Here, by contrast, Bass alleges—and Superior disputes—whether a
Superior employee directly ordered Bass to move the hose,162 the action leading to his alleged injury.
Accordingly, McCarroll does not foreclose Bass from making the requisite showing that Superior
owed him a duty.

159

Id.

160

Id.

161

Id. at 410.

162

In Superior’s “Statement of Uncontested Material Facts,” Superior contends only that it is undisputed that
“[Bass] testified that a Superior employee ‘told [him] to move the hose.’” Rec. Doc. 42–7 at p .1. Bass claims that
“[w]hether [he] was told to move the jumper hose by a Superior supervisor” is a contested fact. Rec. Doc. 49–1 at p 2.

28

The parties do not cite, and the Court has not found, a case in which the Louisiana Supreme
Court specifically addressed what kind of duty, if any, exists in the circumstances allegedly present
here, in which an employee of one contractor is allegedly told to perform a task by an employee of
another contractor. Accordingly, the Court must make an “Erie guess”163 in order to address this
question. To make an “Erie guess,” the Court “employ[s] the appropriate Louisiana methodology
to decide this issue the way that [it believes] the Supreme Court of Louisiana would decide it.”164
Courts in Louisiana “begin every legal analysis by examining primary sources of law: the State’s
Constitution, codes, and statutes.”165 These primary sources are “contrasted with persuasive or
secondary sources of law, such as [Louisiana and other civil law] jurisprudence, doctrine,
conventional usages, and equity, that may guide the court in reaching a decision in the absence of
legislation and custom.”166
Pursuant to LA. CIV. CODE art. 2315, “[e]very act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it.” In determining whether a party is liable
pursuant to Article 2315, the Louisiana Supreme Court instructs that “whether the defendant owed
the plaintiff a duty” in a particular case is a “threshold issue” that is a “question of law,” to be
determined by considering “the unique facts and circumstances presented,” and whether “the
plaintiff has any law” that supports the claim that a duty exists.167

163

Shaw Constructors v. ICF Kaiser Engineers, Inc., 395 F.3d 533, 546–47 (5th Cir. 2004).

164

Id.

165

Id. at 547.

166

167

Id. (quoting LA. CIV. CODE art. 1).
Lemann, 923 So.2d at 633.

29

i.

Law Regarding Duty

The Court initially considers whether any law supports the claim that Superior owed Bass
a duty.168 On this point, Bass cites Lafont v. Chevron U.S.A., a decision from the Louisiana First
Circuit Court of Appeals addressing the duty owed to fellow independent contractors.169 There, the
plaintiff allegedly sustained an injury while assisting a co-contractor’s employees with dumping
garbage.170 Addressing the “duty owed a fellow independent contractor,” the Louisiana First Circuit
Court of Appeals stated that “as between two independent contractors who work on the same
premises, either at the same time or one following each other, each owes to the employees of the
other the same duty of exercising ordinary care as they owe to the public generally.”171 Further,
addressing situations involving a contractor and “third persons,” the court noted that other Louisiana
appellate decisions found the applicable duty to be one of “refrain[ing] from creating a hazardous
condition” or from “gross negligence by willfulness and wantonness.”172 On the basis of these
authorities, the court concluded that the defendant owed the plaintiff “at the very least . . . the duty
to refrain from gross, willful, or wanton negligence, and at most the duty to refrain from creating
an unreasonable risk of harm or a hazardous condition.”173

168

See Lemann, 923 So.2d at 633.

169

593 So.2d 416 (La. App. 1 Cir. 1991).

170

Id. at 418.

171

Id. at 420.

172

Id.

173
Id. The court applied these rules, and found the defendant had not breached its duty, since another entity
was responsible for the hazard that allegedly injured the plaintiff and for ordering its contractors to work in the area. Id.

30

In McCarroll, cited by Superior and discussed above,174 the United States Court of Appeals
for the Fifth Circuit cited Lafont and noted that Louisiana Courts of Appeal have held that:
Independent contractors do not generally owe a duty to protect the employee of
another independent contractor beyond the exercise of ordinary care that is owed to
the public generally. One independent contractor owes another independent
contractor at least “the duty to refrain from gross, willful or wanton negligence, and
at the most the duty to refrain from creating an unreasonable risk of harm or a
hazardous condition.”175
Additionally, the Fifth Circuit in McCarroll cited Parker v. Petroleum Helicopters, Inc. in
support of the proposition that no duty exists where a defendant “does not employ, share a contract,
or actually supervise the plaintiff.”176 In Parker, another section of this Court held that the defendant
owned no duty to the plaintiff because the defendant “did not own or have custody” of the area
where the plaintiff was allegedly injured, “had no contractual relationship with the plaintiff’s
employer,” did not supervise the methods used by the plaintiff to accomplish his work, and did not
choose the work methods used by the plaintiff.177
In Joyner v. Ensco Offshore Co., cited by Superior, another section of this Court found that
“a contractor owes third parties a duty to exercise ordinary care and refrain from creating hazardous
conditions in the fulfillment of its contractual obligations.”178 Nonetheless, considering the “facts
and circumstances” of the accident before it, as the Louisiana Supreme Court counsels courts to

174

Although McCarroll construes Louisiana law, it is an unpublished decision from a federal court, and
therefore is neither precedential nor conclusive of the question presently before the Court. Nonetheless, the Court
considers it, to the extent that it sheds light on the authority controlling the present issue.
175

561 Fed. App’x at 410 (citations omitted).

176

2002 WL 461655, No. 99–1139 (E.D. La. Mar. 20, 2002).

177

2002 WL 461655, No. 99–1139 (E.D. La. Mar. 20, 2002).

178

No. 99-3754, 2001 WL 118599 at *3 (E.D. La. Feb. 9, 2001).

31

do,179 the Court concluded that a co-defendant owed no duty to the plaintiff, analyzing the issue as
follows:
Mr. Joyner himself testified that based upon his 10-12 years experience as a wellhead
technician, that he did not feel that his work method, or use of the cheater bar to
tighten down the pins, was unsafe or risky. Nor did he voice an objection to
tightening down the pins. This is critical considering that it was Joyner's specialized
technical job to tighten down the lock down pins, not Clary's. Considering his
specialized knowledge of the field and that it was Joyner's own decision to choose
an appropriate work method, the Court cannot find that Clary owed a duty to prevent
Joyner from injuring himself while tightening down the lock down pins. In other
words, Clary's duty to Joyner did not encompass the risk that Joyner would be
injured using a work method that Joyner himself, an experienced field technician
who chose his own work methods and had the authority to refuse any unsafe work
procedure, believed to be safe.180
Having determined that the plaintiff’s specialized technical experience, confidence in the procedure,
failure to object to the method used, and freedom to choose an appropriate work method warranted
a finding that the defendant owed the plaintiff no duty, the Court granted summary judgment to the
co-defendant.181
In Verdin v. Kerr McGee Corp., also cited by Superior, another section of this Court
concluded that two co-defendants—a “project auditor” and the “project auditor’s” insurance
company— were entitled to summary judgment because the plaintiff failed “to establish any legal
duty owed . . . to him” by these parties, who “did not own the platform,” and “did not employ” an
unnamed defendant.182

179

See Lemann, 923 So.2d 627, 633 (“In deciding whether to impose a duty in a particular case, the court must
make a policy decision in light of the unique facts and circumstances presented.”).
180

2001 WL 118599 at *4.

181

Id. at pp. *4–*5.

182

No. 95-1483, 1997 WL 39308 (E.D. La. Jan. 30, 1997).

32

Making an Erie guess in the present case, the Court finds, following the holdings of Lafont
and other Louisiana appellate courts,183 and consistent with the findings of other federal courts,184
that independent contractors owe third parties at “at the very least . . . the duty to refrain from gross,
willful, or wanton negligence, and at most the duty to refrain from creating an unreasonable risk of
harm or a hazardous condition.”185
The Louisiana Supreme Court has defined “gross negligence” as “the want of even slight
care and diligence,” and “the want of that diligence which even careless men are accustomed to
exercise.”186 The Louisiana Supreme Court does not appear to have addressed the meaning of
“unreasonable risk[s] of harm” in the context of claims arising from injuries suffered by plaintiffs
who assist at work sites.187 Louisiana Courts of Appeal, however, have done so.
In LeBleu v. Dynamic Indus. Constructors, Inc., for example, the Louisiana Third Circuit
Court of Appeal found that an employee of the defendant created an unreasonable risk of harm when
he attempted to hitch a trailer using only a pry bar, thereby injuring the plaintiff, a construction
worker who was assisting the employee.188 Consequently, Superior’s assertion that Bass will be
unable to establish the existence of any duty is unavailing since, under Louisiana law, independent

183

Lafont, 593 So.2d at 420, Cormier v. Honiron Corp., 2000-446, 771 So.2d 193, 197 (La. App. 3 Cir.

9/27/00).
184

McCarroll, 561 Fed. App’x at 409–10; Joyner, 2001 WL 118599 at *3.

185

Lafont, 593 So.2d at 420.

186

Rabalais v. Nash, 2006-0999, 952 So.2d 653, 658 (La. 3/9/07) (citations omitted).

187

Most frequently, Louisiana courts have addressed the issue in the context of premises liability. See, e.g.
Broussard v. State ex rel. Office of State Bldgs., 2012-1238, 113 So.3d 175 (La. 4/5/13).
188

526 So.2d 1184 (La. App. 3 Cir. 1988).

33

contractors generally do owe third parties a duty, and such a duty may extend to incidents at work
sites arising from unsafe practices.
ii.

Facts and Circumstances

The Louisiana Supreme Court instructs that the existence of a duty is determined both by the
applicable law, if any exists, and by the “unique facts and circumstances” of the case.189
Accordingly, the Court now considers whether any of the parties’ cited cases demonstrate that Bass
will be unable to establish the existence of a duty in light of the unique facts and circumstances
presented by the instant case.
In Joyner, cited by Superior, another section of this Court found significant the plaintiff’s
10-12 years of specialized technical experience.190 Here, no such experience has been alleged, much
less supported by undisputed evidence, making the case inapposite. In Verdin, also cited by
Superior, another section of this Court declined to impose a duty because the defendant did not own
the platform or employ the defendant.191 Here, as noted above, disputed facts exist regarding Bass’s
role in the gravel pack operation, including whether a Superior employee ordered Bass to move the
hose,192 and whether Superior was “in charge” of the operation where Bass was allegedly injured:
Superior contends that Nabors’s contract with Energy XXI establishes that “Nabors alone is
authorized to instruct their employees on how they do their work,” while Bass cites Foreman’s
189

Lemann, 923 So.2d at 633 (“In deciding whether to impose a duty in a particular case, the court must make
a policy decision in light of the unique facts and circumstances presented.”).
190

See Joyner, 2011 WL 118599 at *4.

191

See Verdin, 1997 WL 39308 at *2. The court in Verdin also noted that cases addressing duties owed by rig
owners to employees of an independent were “inapplicable” to the facts before it, but nonetheless considered whether
the defendants had exercised “operational control” within the meaning of these cases. Id. at *4. Finding that the summary
judgment record failed to establish “operational control,” the court held that “even if operational control in itself could
create tort liability, no liability would exist in this matter.” Id. at *4-*5.
192

Rec. Doc. 42–7 at p .1; Rec. Doc. 49–1 at p 2.

34

deposition in support of the proposition that “[n]either the rig manager, Mr. Pradillo, nor the crew
supervisor, Mr. Foreman, were in charge of the job being performed on June 28, 2012.”193
Finally, in McCarroll, discussed above and cited by Superior, the United States Court of
Appeals for the Fifth Circuit found sufficient summary judgment evidence that the defendant had
no contractual or employment relationship with the plaintiff, that the defendant supplied no tools
to the plaintiff, and that the plaintiff’s foreman ordered the plaintiff to participate the work in which
he was injured. Here, by contrast, no such findings are possible, because of the factual disputes just
described.
Although duty is a question of law, Louisiana courts caution that “summary judgment is
proper only where no duty exists as a matter of law and no factual or credibility disputes exist[].”194
In light of the factual disputes still present in this case, the Court is unable to conclude, as a matter
of law, that Bass will be unable to establish that Superior owed him a duty.195
2.

Breach

Superior asserts that even if Bass “could establish a duty under the circumstances of this
case,” Bass will be “unable to establish that Superior breached any such duty,” because, under
Louisiana law, “a principal is not responsible for the actions of an independent contractor when the
principal only gives general instructions.”196 In support of this proposition, Superior cites several

193

Rec. Doc. 41–1 at p. 5 (citing Rec. Doc. 42–3 at pp. 6; 8; 10); Rec. Doc. 49 at p.2 (citing Rec. Doc. 49–2

at pp. 8–9).
194

Parish v. L.M. Daigle Oil Co., Inc., 98-1716, 742 So.2d 18 (La. App. 3 Cir. 6/23/99). See also Coates v.
Nettles, 563 So.2d 1257 (La. App. 1 Cir. 1990) (same).
195

To the extent that Superior urges this Court to find the present case analogous to Joyner, Superior has not
pointed to undisputed facts demonstrating that Bass had any specialized technical experience, let alone the 10-12 years
of experience found significant in that case.
196

Rec. Doc. 42–2 at p. 13.

35

cases, of which none supply a Louisiana rule of law that governs the present issue. Superior quotes
Landry v. Huthnance Drilling Co., which was decided under the general maritime law197 and thus
has no bearing on Bass’s Louisiana negligence claim. Superior also cites Graham v. Amoco Oil Co.,
in which the United States Court of Appeals for the Fifth Circuit, applying Louisiana law, held that
“a principal is not liable for the negligent acts of an independent contractor acting pursuant to the
contract.”198 In Graham, the plaintiff sought to hold the defendant rig owner liable for the alleged
negligence of another company performing work on the rig, a theory of recovery alleged here.199
Additionally, Superior cites Ainsworth v. Shell Offshore where, as in Graham, the plaintiff sought
to hold the defendant rig owner liable for the alleged negligence of a contractor working on the
rig.200 Here, unlike in these cases, Bass asserts that Superior owed him, and breached, a duty arising
from its own conduct, not from conduct of third-party independent contractors hired by Superior.
Accordingly, having been presented with no applicable authority on point, the Court cannot find,
as a matter of law, after taking all facts in the light most favorable to Bass and after drawing all
inferences in Bass’s favor, that Superior is entitled to summary judgment on the issue of breach.
IV. Conclusion
Superior asserts that Bass will be unable to show that it owed Bass a duty, and that the Court
should therefore grant its request for summary judgment. However, independent contractors
generally do owe a duty to third parties under Louisiana law. To the extent that Superior contends
that the specific facts and circumstances of this case foreclose Bass from establishing that Superior
197

889 F.2d 1469, 1469 (5th Cir. 1989).

198

21 F.3d 643, 645 (5th Cir. 1994)

199

Id.

200

829 F.2d 548 (5th Cir. 1987).

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owed him a duty, its argument fails since the parties dispute who ordered Bass to move the hose, and
who was in charge of the operation where Bass was allegedly injured. Therefore, the Court cannot
conclude that Bass will be unable to establish Superior owed it a duty. Further, Superior has not
cited applicable law or pointed to the requisite undisputed facts to permit the Court to find, as a
matter of law, that it did not breach its duty. Finally, Superior contends that Bass admits that he is
a borrowed employee to the extent that Bass argues that Superior controlled and supervised him.
However, Superior presents an incomplete analysis on this point, and the Court finds that genuine
issues of material fact prevent the Court from concluding, as a matter of law, that Bass was
Superior’s borrowed employee. Accordingly,
IT IS HEREBY ORDERED that Superior’s “Motion for Summary Judgment”201 is
DENIED.
NEW ORLEANS, LOUISIANA, this 3rd day of February, 2015.
____

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

201

Rec. Doc. 42.

37