Gardner v. Brand Energy Solutions, LLC, et al
Filing
70
ORDER AND REASONS: IT IS ORDERED that the 65 motion is GRANTED and Plaintiff's claim against Defendant Deep Gulf Energy II, LLC is DISMISSED WITH PREJUDICE, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 6/5/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH GARDNER
CIVIL ACTION
VERSUS
NO. 16-16982
BRAND ENERGY SOLUTIONS, LLC, ET AL.
SECTION “B”(5)
ORDER AND REASONS
Defendant Deep Gulf Energy II, LLC filed a motion for summary
judgment. Rec. Doc. 65. Plaintiff filed a notice of no opposition.
Rec. Doc. 66. For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 65) is GRANTED and
Plaintiff’s claim against Defendant Deep Gulf Energy II, LLC is
DISMISSED WITH PREJUDICE.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On December 30, 2015, Plaintiff Kenneth Gardner allegedly
sustained injuries to his knee and back while working as an
electrical assistant on the Devil’s Tower, a drilling platform
located in the Gulf of Mexico. See Rec. Docs. 1 ¶¶ 9-10; 65-2
¶¶ 1-2. Specifically, Plaintiff was injured when he hit his knee
on a nail head on a scaffold that had been constructed on the
platform. See Rec. Doc. 1 ¶ 10. At the time of the accident,
Plaintiff “was employed by Omega Natchiq . . . .” Id. ¶ 9.
Deep Gulf Energy II, LLC contracted with various companies
for construction projects on the platform. See Rec. Doc. 65-2
¶¶ 6-12. Two of these companies were Omega Natchiq, LLC and
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Performance Energy Services (PES). See id. ¶¶ 6, 8. The contracts
that Deep Gulf executed with Omega and PES state that Omega and
PES are independent contractors. See id. ¶¶ 7, 9. Omega was hired
to do electrical work on the platform and PES was hired to erect
scaffolding on the platform. See id. ¶¶ 10-12. When Plaintiff was
injured,
he
was
assisting
with
Omega’s
electrical
work
on
scaffolding that PES had erected. See Rec. Doc. 1 ¶ 10.
In
December
2016,
Plaintiff
brought
a
negligence
claim
against Deep Gulf, arguing that the condition of the scaffolding
created an unsafe work environment. See Rec. Doc. 1. In May 2018,
Deep Gulf filed the instant motion for summary judgment, arguing
that it is not liable for the negligent acts of its independent
contractors. See Rec. Doc. 65. Plaintiff then filed a notice of no
opposition. See Rec. Doc. 66.
LAW AND ANALYSIS
Summary
judgment
is
appropriate
when
“the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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When
the
movant
bears
the
burden
of
proof,
it
must
“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Even when
a motion for summary judgment is unopposed, the movant must still
carry its burden of showing that there is no genuine issue of
material fact. See Hibernia Nat’l Bank v. Administracion Cent.
Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). When the
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
Plaintiff invokes the jurisdiction of the Outer Continental
Shelf
Lands
Act
(OCSLA)
because
his
accident
occurred
on
a
stationary platform attached to the outer continental shelf. See
Rec. Docs. 1 ¶¶ 7, 9; 7 ¶¶ 2, 7; see also Rec. Doc. 65-4 ¶¶ 5, 7,
8.
OCSLA
“mandates
that
when
disputes
arise
involving
fixed
structures erected on the outer Continental Shelf, applicable laws
of
the
adjacent
state
will
be
applied
to
the
extent
not
inconsistent with other federal laws and regulations.” Coulter v.
Texaco, Inc., 117 F.3d 909, 911 (5th Cir. 1997). Here, because the
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platform
is
located
off
the
coast
of
Louisiana,
Louisiana
negligence law is applicable. See Rec. Docs. 1 ¶ 9; 7 ¶ 7; 65-4
¶ 6; Coulter, 117 F.3d at 911.
Under Louisiana negligence law, “a principal . . . cannot be
liable for injuries resulting from the negligent acts of an
independent contractor . . . unless (1) the liability arises from
ultrahazardous activities performed by the contractor on behalf of
the principal or (2) the principal retains operational control
over the contractor’s acts or expressly or impliedly authorizes
those acts.” Coulter, 117 F.3d at 911-12. Assembling scaffolding
and completing electrical work is not ultrahazardous. See, e.g.,
Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 371-72, 379-84
(5th Cir. 2001) (holding that use of a “perforation gun,” which
fires explosive charges, was not ultrahazardous). Therefore, the
only question is whether Deep Gulf retained operational control of
Omega and PES, which “requires an examination of whether and to
what extent the right to control work has been contractually
reserved by the principal.” Coulter, 117 F.3d at 912. “Operational
control exists only if the principal has direct supervision over
the step-by-step process of accomplishing the work such that the
contractor is not entirely free to do the work in his own way.”
Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564 (5th
Cir. 2003).
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Deep Gulf’s contracts with Omega and PES state that they are
independent contractors, that Deep Gulf “shall have no direction
or control” over Omega or PES, and that Deep Gulf will only have
the general rights of “approval” and “inspection.” Rec. Docs. 65-5
at 5; 65-6 at 5. PES was tasked with scaffolding work on the
platform and Omega was tasked with performing electrical work using
the scaffolding. See Rec. Docs. 65-7; 65-8. Deep Gulf did not have
employees supervising the work on the platform when Plaintiff’s
accident
occurred.
See
Rec.
Doc.
65-4
¶ 13.
In
Plaintiff’s
deposition, he stated that he only received instructions from his
Omega supervisor, not from Deep Gulf. See Rec. Doc. 65-9 at 60.
Similarly, a PES representative explained in his deposition that
Deep Gulf did not directly control or supervise the construction
of the scaffolding. See Rec. Doc. 65-11 at 27. Accordingly, Deep
Gulf is entitled to summary judgment because it has demonstrated
that there is no genuine issue of material fact about whether it
exerted operational control over Omega and PES. See Fruge, 337
F.3d at 564-65 (affirming summary judgment in favor of principal
because periodic inspections of independent contractor’s work did
not equate to operational control); Coulter, 117 F.3d at 912
(affirming summary judgment in favor of principal because general
approval of work plan was not evidence that principal “explicitly
or
implicitly
authorized”
an
unsafe
5
practice).
Plaintiff,
by
filing a notice of no opposition, has presented no evidence that
creates a genuine issue of material fact. See Rec. Doc. 66.
New Orleans, Louisiana, this 5th day of June, 2018.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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