Hosey v. Shell Oil Company et al
ORDER and REASONS granting 30 Motion for Summary Judgment. The defendants' motion for summary judgment is GRANTED, and the plaintiffs' claims are dismissed with prejudice. Signed by Judge Martin L.C. Feldman on 10/14/2020. (cwa)
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 1 of 30
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID HOSEY, ET AL.
SHELL OIL COMPANY, ET AL.
ORDER AND REASONS
Before the Court is a motion for summary judgment by Shell
Oil Company and Shell Offshore Inc.
For the reasons that follow,
the motion is GRANTED, and the plaintiffs’ claims are dismissed.
This personal injury case arises from a roustabout’s claim
that he hurt his lower back when he and a co-worker manually lifted
and moved a washing machine into a cargo box while working the
night shift on the Olympus Tension Leg Platform in the Gulf of
Shell Offshore Inc. 1 owns and operates the Olympus Tension
Leg Platform, which is located on and permanently attached to the
approximately 130 miles south of New Orleans.
The Olympus TLP has
24 well slots and a self-containing drilling rig.
Shell Oil Company is an indirect owner of Shell Offshore Inc.;
Shell Oil Company neither owns nor operates the Olympus TLP.
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The facts are not in dispute.
Shell Offshore contracted with
Helmerich & Payne International Drilling Company in which H&P
agreed to provide personnel to perform drilling, completion, and
other operations in support of the oil and gas development from
the Olympus TLP.
Specifically, the parties’ contract obliged H&P
to “furnish PERSONNEL as expressly specified herein, physically
fit, suitably trained, licensed and certified, as applicable and
Shell was designated as the “COMPANY” and H&P was
designated as an “Independent Contractor” in which “the actual
performance of the WORK shall be by CONTRACTOR” and “CONTRACTOR
shall take reasonably necessary measures to provide safe working
conditions in connection with the WORK.”
On December 8, 2018, H&P lead roustabout David Hosey was
working the night shift 2 on the platform’s third floor warehouse
The tasks to be performed by H&P that night included moving
a washing machine into a shipping container; a task discussed and
performed solely by H&P employees.
During a pre-shift meeting
among only H&P employees, the employees discussed the work to be
The washing machine was either on a list of equipment
to be moved that evening, or the direction to move it was given
later by the H&P deck supervisor, Mark Alston, who testified that
The night shift started on 6 o’clock p.m. and ended at 6 o’clock
a.m. on December 9.
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 3 of 30
one Mr. Gomillion was told by Shell that moving the washing machine
was a task that needed to be completed during the particular shift.
The washing machine was located out on the platform’s third
floor warehouse porch, which is a landing area for a crane to place
cargo boxes outside of the third-floor warehouse.
Once the cargo
box was placed on the landing area by the H&P crane operator, H&P
deck supervisor Mark Alston testified that he said “[w]hen we get
a chance, we need to put [the washing machine] in that cargo box.
It wasn’t a priority.” 3
Hosey and his co-worker, Colby Davis,
ultimately took on the task of moving the “regular white washing
machine” 4 into the cargo box.
The washing machine, which weighed
more than 50 pounds, was located about 10 feet away from the cargo
H&P workers adhered to an H&P policy regarding lifting or
moving heavy items.
H&P workers were instructed that “one person
should not lift over 50-pounds” and “[i]f [an item] is known to be
over 50-pounds or awkward, too awkward for one person to lift under
50-pounds, you should ask for assistance or use a lifting device.”
Consistent with H&P policy, Hosey and Davis briefly discussed how
they would manually lift and then put the washing machine in the
It was Alston’s expectation that the roustabouts would figure
out later who would be lifting the washing machine.
4 It was actually a stackable washing machine-dryer combination
5 The cargo box, or open-topped pallet box, is a metal box about
4x4x4 with no top and one door that swings open.
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 4 of 30
box: with one man on either side of the washing machine, they
“leaned the washer back, bent down, grabbed it and put it in the
The cargo box with the washing machine in it was then lifted
by crane to another deck.
H&P deck supervisor Alston had instructed the crew to (but
not how to) put the washing machine in the cargo box and he watched
from the fourth floor as the task was completed.
Other than Hosey
recalling that the washing machine was “awkward,” no H&P employee
noted anything out of the ordinary about moving it.
undisputed that no one from Shell instructed the H&P crew on how
to move the washing machine.
Nor was any Shell representative in
the vicinity when the washing machine was lifted and moved.
A few hours later, Hosey says he felt pain in his lower back. 6
Hosey now complains that he did not have access to using a
dolly when moving the washing machine.
Hosey admits that he did
not discuss with his co-worker or anyone else the need for a dolly
before moving the washing machine.
Nor did his co-worker consider
using a dolly to move the washing machine that night.
Hosey recalled that the washing machine was moved around 10:30
or 11:00 and the first time he felt pain in his lower back was
around “1 or 2 o’clock” or “around 12, 1, somewhere around that
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 5 of 30
Hosey and Davis had performed similar manual lifts in the past, as
had other H&P employees. 7
A two-wheeled metal dolly was located in the warehouse just
adjacent to the third floor landing area where Hosey and Davis had
moved the washing machine to the cargo box.
During the day, the
warehouse is unlocked and managed by Kermit Menard, a material
contractor, Danos LLC.
Mr. Menard used the dolly “to unload cargo
box materials and carry them inside the warehouse to put them on
the check-in tables.”
Mr. Menard “would loan the dolly to anyone
After 6 p.m., however, the warehouse is locked. But
Mr. Menard remained “on-call” to provide access to the warehouse.
After 6 p.m., Mr. Menard could be contacted in three ways: contact
the control room; go to his room, 304 (right next to the entry
hallway for the door to the warehouse); or use the public address
“If [Mr. Menard is] up, [he] would answer the PA and open
the warehouse for you.”
Neither Hosey nor Davis discussed or
requested or considered getting a dolly to assist in lifting the
washing machine on December 8, 2018.
Alston testified that, if a
member of the crew determined that a dolly was needed to perform
Hosey stated that he had previously used a dolly to assist in
moving washing machines on prior occasions; he also testified that
he and Mr. Davis had “performed lifts like that in the past.”
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 6 of 30
a task, he would have expected his crew to wait until a dolly was
located; this included an expectation that someone would “call the
warehouse guy or they get him up.”
Whether a dolly was needed or
could be useful was up to the crew members completing the task at
On April 26, 2019, David Hosey sued Shell Offshore Inc. and
Shell Oil Company, alleging that Shell’s negligence caused his
lower back injury.
He seeks to recover for general damages, lost
wages, lost earning capacity, pain and suffering, as well as past
and future medical expenses, and loss of society and services.
a later amended complaint, David’s wife, Jennifer, brought a claim
defendants now seek summary judgment dismissing the plaintiffs’
claims that the defendants’ negligence caused their injuries.
Summary judgment is proper if the record discloses no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a). A dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if it “might
affect the outcome of the suit.” Id.
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 7 of 30
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
Nor do “[u]nsubstantiated assertions, improbable
Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003); Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007)("[T]he nonmoving party
unsubstantiated assertions, or only a scintilla of evidence.").
Therefore, "[i]f the evidence is merely colorable, or is not
Anderson, 477 U.S. at 249-50 (citations omitted).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also In
2017)(citation omitted)(If the non-movant will bear the burden of
proof at trial, “the movant may merely point to an absence of
demonstrating by competent summary judgment proof that there is an
issue of material fact warranting trial.”).
In this regard, the
non-moving party must do more than simply deny the allegations
raised by the moving party.
See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
must come forward with competent evidence, such as affidavits or
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 8 of 30
depositions, to buttress his claims.
Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987); FED. R. CIV. P. 56(c)(2).
Ultimately, to avoid summary judgment, the non-movant “must go
indicating a genuine issue for trial.” LeMaire v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
In deciding whether a fact issue exists, the Court must view
favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372,
378 (2007); Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d
507, 513 (5th Cir. 2018). Although the Court must "resolve factual
controversies in favor of the nonmoving party," it must do so "only
where there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts."
Antoine v. First
Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation
marks and citation omitted).
It is undisputed that federal jurisdiction is predicated on
the Outer Continental Shelf Lands Act (OSCLA), 43 U.S.C. § 1331,
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 9 of 30
et seq. 8
Absent from the papers is any discussion supporting the
parties’ assumption that Louisiana law governs this OCSLA case,
notwithstanding the Supreme Court’s recent pronouncements on the
See Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S.
Ct. 1881 (2019).
‘jurisdiction, control, and power of disposition’ over the [outer
jurisdiction’ over it.” Parker Drilling, 139 S. Ct. at 1888-89
(quoting 43 U.S.C. §§ 1332(1), 1333(a)(3)). Under the OCSLA,
federal law applies to the outer Continental Shelf “to the same
extent as if the outer Continental Shelf were an area of exclusive
So, “the only law on the [outer Continental Shelf] is
federal law, and state laws are adopted as federal law only ‘to
the extent that they are applicable and not inconsistent with’
Parker Drilling, 139 S. Ct. at 1889 (quoting 43
The Outer Continental Shelf Lands Act established the Outer
Continental Shelf as a federal enclave. 43 U.S.C. § 1333(a)(1).
In so doing, Congress broadly conferred on the federal courts
jurisdiction to hear claims arising out of or related to oil
production on the Outer Continental Shelf.
Id. at § 1349(b);
Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir.
2013)(The OCSLA “asserts exclusive federal question jurisdiction
over the OCS by specifically extending ‘[t]he Constitution and
laws of the civil and political jurisdiction of the United
States...[to the OCS].”).
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 10 of 30
U.S.C. § 1333(a)(2)(A))(internal brackets omitted).
State law is
“applicable and not inconsistent with” federal law “only if federal
law does not address the relevant issue.” Parker Drilling, 139 S.
Ct. at 1889.
surrogate federal law.
Mr. Hosey’s alleged injuries occurred on
a fixed platform in federal waters on the Outer Continental Shelf.
Once OCSLA jurisdiction is established, as it is here, the Court
purposes of resolving this motion, the Court assumes as the parties
do that Louisiana law governs the question of Shell’s negligence
because federal law does not address the issue.
Drilling, 139 S. Ct. at 1889. 9
First, the Court takes up Shell Oil Company’s submission that
summary judgment in its favor is warranted because it neither owned
nor operated the Olympus TLP.
The Court agrees.
Cf. 28 U.S.C. § 5001(b)(“In a civil action brought to recover on
account of an injury sustained in a place [subject to the exclusive
jurisdiction of the United States within a State,] the rights of
the parties shall be governed by the law of the State in which the
place is located.”).
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 11 of 30
demonstrating that Shell Oil Company owed no duty to the plaintiffs
because it neither owned nor operated the Olympus TLP.
judgment in favor of Shell Oil Company is thus appropriate.
Second, Shell Offshore submits that it is entitled to judgment
as a matter of law because, as a principal, it maintained no
operational control over and thus owed no duty to H&P employee Mr.
Even if he can show that Shell Offshore owed a duty as a
matter of law or contract, no such duty was breached.
plaintiffs counter that Shell Offshore was independently (not
unfettered access to dollies so that H&P could opt for the safest
method of performing its work.
The parties’ positions implicate
overlapping negligence principles.
Mindful that the touchstone of
all negligence claims is reasonableness -- not perfection -- the
Court considers the scope of a principal like Shell’s duty to
independent contractors first and then the source and scope of any
independent duty owed. 10
The plaintiffs insist that the independent contractor defense
is inapplicable here. The Court disagrees. The defense and its
attendant inquiry into operational control is essentially a
specific jurisprudential gloss on the Louisiana Code’s general
negligence principle. Even if the defense has no application where
the plaintiff -- for whatever reason -- chooses not to sue his
employer (that is, where the issue of vicarious liability
technically is not placed at issue by the plaintiff), the
defendants are entitled to judgment as a matter of law on the
issue. Ultimately, the plaintiffs fail to carry their burden on
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When an employee of an independent contractor injured while
working on an offshore oil platform sues the principal/platform
owner, the platform owner may invoke the independent contractor
“It is well established that a principal is not liable
for the activities of an independent contractor committed in the
course of performing its duties under the contract.”
2017)(quoting Bartholomew v. CNG Producing Co., 832 F.2d 326, 329
(5th Cir. 1987)).
There are two exceptions to this general rule.
A principal is not shielded from liability if (1) the activities
control over those acts or expressly or impliedly authorizes an
unsafe practice.” Bartholomew, 832 F.2d at 329 (holding that there
was some evidence to support the jury’s finding that the principal
was 30% at fault, given that the principal’s company man expressly
authorized an unsafe work practice, that is, failing to wash down
the rig floor which eventually caused Bartholomew to slip and twist
his back on the muddy rig floor).
each essential element of their negligence claim no matter their
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To establish liability of a principal where there is no
ultrahazardous activity, 11 then, the inquiry is whether there is
any evidence that the principal exercised operational control over
its independent contractor or expressly or impliedly authorized
the unsafe practice which caused the injured worker’s injuries.
There is no evidence that Shell exercised operational control over
H&P or that it expressly or impliedly authorized the method H&P
chose to move the washing machine.
Here, H&P elected the method or manner its crane crew would
use to move the washing machine.
The record indicates that H&P
policy dictated that awkward items or items weighing more than 50
pounds called for a two-person manual lift or the assistance of
equipment. Lead roustabout Hosey and his co-worker Davis proceeded
with a two-person manual lift.
There is no evidence that Shell
played any role in the movement of the washing machine, or that it
decided how the washing machine should be moved, or that it
authorized an unsafe working condition.
“If ‘work is done in an
unsafe manner, the [principal] will be liable if he has expressly
or impliedly authorized the particular manner which will render
Lifting a washing machine, which can be accomplished safely when
proper precautions are used, does not qualify as an ultrahazardous
activity. See Ainsworth v. Shell Offshore, Inc., 829 F.2d 548,
549 (5th Cir. 1987)(pile driving, storage of toxic gas, blasting
with explosives, and crop dusting are examples of ultrahazardous
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 14 of 30
the work unsafe, and not otherwise.’”
Davis, 865 F.3d at 236-237
(citation omitted, emphasis in original).
exercised operational control or otherwise authorized an unsafe
literature is replete with examples of summary judgment being
granted in the principal’s favor.
In Davis v. Dynamic Offshore
Resources, L.L.C., 865 F.3d 235 (5th Cir. 2017), for example, the
district court in favor of a principal.
There, Davis, a crane
injured during a personnel basket transfer to the principal’s
The summary judgment record demonstrated that the
principal ordered that the crane winch be replaced on a particular
platform, but Davis postponed replacing the winch due to safety
concerns related to wind.
Id. at 235-36.
decided to inform the principal’s foreman on another platform by
being transported to that other platform by personnel basket.
During the transfer, Davis was injured.
principal did not order Davis to make a personnel basket transfer
in high winds -- that was Davis’s call -- the principal did not
authorize an unsafe working condition that caused Davis’s injury,
making summary judgment appropriate.
Id. at 236-37.
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 15 of 30
And Shell invokes Offord v. L&W Supply Corp., 358 Fed.Appx.
540 (5th Cir. 2009), where the Fifth Circuit in an unpublished
opinion affirmed the district court’s grant of summary judgment in
favor of a principal.
Truck driver Offord was injured when he
slipped and fell off the trailer bed of an 18-wheeler while
removing a tarp covering a load of sheetrock.
Id. at 542.
sheetrock was being delivered to a customer, Seacoast, whose
employees were responsible for offloading the sheetrock once the
tarp was removed from the truck.
Offord sued Seacoast for,
among other things, failing to provide equipment that would have
prevented his fall.
Applying the general rule that a principal is
not liable for the acts of an independent contractor, the district
court granted Seacoast’s motion for summary judgment, and the Fifth
Circuit affirmed its finding that Offord “decided how to remove
the tarp” and “no one forced or directed him to climb on the load
or did anything that caused him to be on the load.”
Id. at 542-
The Fifth Circuit also rejected the plaintiff’s claim that
Seacoast had a duty to provide fall protection equipment; no duty
existed and summary judgment was appropriate because there was no
evidence that Seacoast “controlled or actively supervised [the
Id. at 543.
Like Davis and Offord, Hosey along with his co-worker decided
in the moment how H&P would perform the task of moving the washing
In opting for a two-worker manual lift, this task was
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 16 of 30
accomplished consistent with H&P policy.
No one at Shell directed
Hosey or H&P regarding the method or manner to use in moving the
washing machine 10 feet into the cargo box.
Rather than identifying facts indicating operational control
by Shell, Hosey says the defense is not relevant because he opted
not to sue H&P or otherwise pursue a theory of vicarious liability.
Hosey thus does not appear to dispute that Shell lacked operational
control over H&P in moving the washing machine. Hosey’s negligence
theory focuses instead on Shell’s policy that the warehouse was
Plaintiff and the rest of the H&P nighttime crew,” the plaintiff
argues, “Shell created a hazard and failed to ensure that the
operation of lifting and moving the washing machine on the night
of December 8, 2018 could be executed in the safest possible
Broadly construing Hosey’s negligence theory, he suggests
that Shell’s policy hindering access to dollies at night impliedly
authorized or dictated a two-person manual lift (a method condoned
by H&P, which Hosey perplexingly does not suggest is unreasonably
hazardous) to the exclusion of using a dolly. The summary judgment
record does not support Hosey’s theory of negligence.
argues that the crane crew had no access to the dollies at night
and this is the reason why the plaintiff did not consider using
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This is an unsubstantiated assertion.
Stopping short of
saying he opted not to use a dolly on December 8, 2018 because he
did not think he could retrieve one, the record shows that H&P
workers faced with lifting heavy items routinely adhered to H&P’s
policy of lifting with their legs and either using two workers or
the assistance of a dolly.
The plaintiff’s generalized testimony
that he would not have considered waking up the warehouse manager
unless it was an emergency does not itself create a genuine dispute
concerning whether dollies were reasonably available for use or,
critically, whether he asked for one or considered using one on
the night he claims he was injured.
The plaintiff identifies no
material facts that would create a genuine dispute about Shell’s
lack of operational control over the methods H&P used to complete
its assigned tasks.
In this case, though, by abandoning any operational control
theory of liability, Hosey likewise seems to reject the theory
that the two-worker lift method was an unsafe practice which caused
This is perplexing.
Insofar as the plaintiffs rely completely on a theory
Hosey’s argumentative gymnastics
vicarious liability) also compel the conclusion that Shell did not
owe an independent duty to H&P employees based on the terms of the
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 18 of 30
contract; even if it did, the duty was not breached.
now turns to consider this independent negligence theory.
“[E]ven though the general rule shields a principal from the
acts of its independent contractor that do not fall within the
[two referenced] exceptions, the principal remains liable for its
own acts of negligence.”
Graham v. Amoco Oil Co., 21 F.3d 643,
645 (5th Cir. 1994)(citations omitted).
The same considerations
that preclude a finding of operational control also compel the
conclusion that Shell did not owe an independent duty to H&P’s
Hosey fails to demonstrate an issue of material fact
as to whether Shell is liable under Article 2315 because on this
record as a matter of law Shell owed no independent duty to Hosey;
independent duty, the duty was not breached (nor does the record
suggest that any breach caused Hosey’s injury).
Civil Code Article 2315, Louisiana’s source of negligence
liability, instructs that “[e]very act whatever of man that causes
damage to another obliges him by whose fault it happened to repair
it.” LA. CIV. CODE art. 2315(A).
"Every person is responsible for
negligence, his imprudence, or his want of skill."
CODE art. 2316.
Taking into account the conduct of each party and
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the circumstances of each case, courts employ a duty-risk analysis
to determine whether to impose liability based on these broad
negligence principles. Lemann v. Essen Lane Daiquiris, Inc., 20051095, p. 7 (La. 3/10/06); 923 So. 2d 627, 632.
To recover under the duty-risk approach, the plaintiffs must
prove five elements: (1) the defendants had a duty to conform their
conduct to a specific standard; (2) the defendants' conduct failed
substandard conduct was cause in fact of the plaintiffs’ injuries;
(4) the defendants' substandard conduct was a legal cause of the
plaintiffs’ injuries; and (5) actual damages.
Audler v. CBC
Innovis, Inc., 519 F.3d 239, 249 (5th Cir. 2008)(citation omitted).
If the plaintiffs fail to prove one of these elements, then the
defendant is not liable.
Whether a defendant owes a duty and the scope of any duty is
circumstances, and context of each case and is limited by the
particular risk, harm, and plaintiff involved.”
Dupre v. Chevron
When an employee of an independent contractor alleges
that the relationship between a platform owner and its employer
creates an independent duty of care on the part of the platform
owner, the Court first looks to the terms of the contract between
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 20 of 30
the owner and the independent contractor. See Graham, 21 F.3d at
647 (citation omitted).
Here, the parties’ contract obliged H&P to “furnish PERSONNEL
as expressly specified herein, physically fit, suitably trained,
licensed and certified, as applicable and supervision.”
“Independent Contractor” in which “the actual performance of the
WORK shall be by CONTRACTOR” and “CONTRACTOR shall take reasonably
negligence theory, the plaintiff points to Shell’s obligation to
provide to H&P certain items like “hand tools”; Hosey concludes
that this obliged Shell to provide dollies to platform workers.
Hosey does not identify any provision that allows Shell to control
the manner or method of H&P’s work.
Hosey does not dispute that
H&P’s own general policy permitted manual lifts by two people when
moving something that weighed more than 50 pounds.
Shell submits that it had no duty to offer unfettered access
to dollies on its platform.
Considering the facts, circumstances,
and context of this case including the particular risk, harm, and
plaintiff involved, the Court agrees.
The duty Hosey implores the Court to find as a matter of law
and impose upon Shell is the duty to provide unfettered access to
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Hosey contends that Shell created a hazard by failing to
performed in the “safest possible manner.”
ignores the context of this case in which Shell as principal owed
a duty to provide a reasonably safe platform and H&P as independent
contractor owed a duty to perform and supervise the reasonably
safe performance of the work. The record shows that H&P considered
it reasonably safe for two workers to perform a lift of heavy items
like the washing machine.
Shell did not direct Hosey or H&P to
lift the washing machine in a particular way.
In this regard, the
alleged hazard identified by the plaintiff (the manual lift of
heavy equipment) was not a hazard created by Shell; if it was a
hazard, it was permitted and condoned by H&P.
The Court finds
that under the circumstances, including the particular risk and
the potential harm addressed by H&P’s own policy and custom, Shell
owed no particular duty to provide the safest possible method for
lifting heavy items.
To be sure, in an analogous context, “[i]t
is well established that [c]ourts do not require a principal to
Iglesias v. Chevron U.S.A. Inc., 656 F.
Supp. 2d 598, 602 (E.D. La. 2009).
Even assuming that Shell owed a contractual or ex contractual
duty to provide equal dolly access to daytime and nighttime crews,
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Shell submits that it did not breach the duty.
Again, the Court
To be sure, a platform owner must take reasonable steps
to ensure a safe working environment.
Dupre, 20 F.3d at 157
The record indicates that Shell’s policy of
locking the warehouse from 6 p.m. to 6 a.m. did not render all
opting to use a dolly must first contact the warehouse manager or
find the other key in the control room. 12
That there may have been
an extra hurdle to retrieve (or a delay in retrieving) a dolly
during the night shift does not render either dollies inaccessible
or the platform unsafe. 13
In opposing summary judgment, the plaintiff argues that Shell
“preclud[ed] Plaintiff’s ability to obtain a dolly to assist in
completing the operation safely” and that the plaintiff “did not
prevented them from having access to one.”
But the plaintiff’s
Even during day shifts, the record indicates that anyone seeking
out a dolly either found one around the platform or asked the
warehouse manager for permission to use the dolly located there.
13 H&P Deck supervisor Mark Alston, who observed Hosey and Davis
performing the lift, testified that “[i]f the crew...decided that
they needed a dolly to move the washing machine,” he “expected
them to wait until we got a dolly down there or we got some more
people down there to look at the job.” With respect to how to get
a dolly at night, Alston testified that he “hope[ed] they have one
unlocked” and if he cannot find one unlocked, then “to wait” or,
if something is needed from the warehouse at night, “[w]e call the
warehouse guy or they get him up.”
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 23 of 30
hindsight negligence theory fails to withstand summary judgment
practice and procedure.
Again, even assuming that Shell owed a
duty to provide unfettered access to dollies, the plaintiff fails
to identify material facts in the record that create a genuine
dispute on the issue of breach.
Although the plaintiff indicated
that he would not have woken up the warehouse manager unless it
was an emergency, nowhere in the record are there facts to support
the plaintiff’s argument that, on the night of December 8, 2018,
he did not use a dolly because he was barred access to one.
It is the plaintiffs’ burden to establish that Shell owed a
duty under Louisiana law to provide its independent contractor
with unrestricted access to equipment on a platform even if the
equipment is not requested or considered by the employees in the
performance of their work.
It is likewise plaintiffs’ burden to
establish that Shell breached any such duty.
satisfy either burden.
They have failed to
The plaintiffs have failed to provide the
Court with any legal authority or contested issue of material fact
to suggest that a platform owner somehow exposes an independent
contractor to an unsafe work environment when that contractor
performs its work without even asking for or seeking equipment
they know is on the platform.
There is no evidence offered to
suggest that H&P was prohibited from accessing dollies on the
The record shows that Shell provided reasonable (though
perhaps imperfect) access to the third floor warehouse to anyone
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 24 of 30
who requested that access. 14
No facts support the plaintiffs’
theory that access was prohibited on December 8, 2018.
Parsing Hosey’s theory that Shell was independently negligent
in not providing unfettered access to dollies at night, there is
no evidence substantiating his attorney’s argument that Hosey did
not seek to utilize a dolly because they were unavailable for use
on the night shift.
Davis testified that on the night of December
8, 2018, he did not consider looking for a dolly to assist in
lifting the washing machine.
Hosey similarly stated that he did
not explicitly request a dolly or consider trying to find one to
assist in moving the washing machine:
Q. Before lifting the washing machine, had you discussed
with Mr. Davis how you two anticipated moving the washing
machine into the box?
A. I did.
Q. And what did you discuss?
A. That we was going to just lean it back and he grabbed
one side, I grabbed the other and put it into the box.
Viewing the facts in the light most favorable to Hosey, Shell’s
nighttime lock down policy made it moderately more difficult to
retrieve a dolly, considering that workers -- night or day -generally had to go ask the warehouse manager for permission to
use his particular dolly. But the undisputed evidence also
indicates that it was possible to contact the warehouse manager at
night or retrieve a key from the control room, and that it was
“expected” by H&P if workers deemed using a dolly necessary.
Hosey’s submission that, in theory, he would not have contacted
the warehouse manager at night unless it is an emergency is an
abstract observation where summary judgment procedure mandates
concrete facts to defeat a properly supported motion.
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 25 of 30
Q. Have you and Mr. Davis performed lifts like that in
A. We have.
Q. Did anyone from Shell give you any instructions on
how to move the washing machine from the deck into the
Q. Did you speak to anyone other than Mr. Davis in terms
of assistance or help in terms of moving the washing
machine from the deck into the box?
Does H&P, your employer, have any policies or
procedures in terms of lifting equipment like the
Just lift with your legs and not your back, two
people over fifty pounds.
Q. And I gather the last part of your response is that
H&P’s rules are that if a piece of equipment is over
fifty pounds, there must be two people picking it up?
Prior to lifting the washing machine, did you
communicate with anyone from H&P or otherwise, regarding
equipment needed to move the washing machine?
Q. And those occasions in the past when you’ve used the
dolly, how do you have access to it?
A. Just knock on the door and ask the warehouse guy can
you use his dolly?
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 26 of 30
Q. Have you ever needed the use of a dolly and there
wasn’t one available in the warehouse?
Q. On the evening of December 8 of 2018, did you and
Mr. Davis discuss the need for a dolly?
Q. Did you discuss...with anyone else the need for a
dolly before you and Mr. Davis picked up the washing
Q. Was Mr. Austin available to you by radio in the event
that you and Mr. Davis concluded that you needed a dolly
in order to move the washing machine?
Hosey’s own testimony does not support his litigation theory.
Hosey’s negligence theory is anchored to a hindsight assertion
that is nowhere to be found in the summary judgment record:
argues that Shell should have ensured that dollies would be as
accessible during the night shift as they were during the day shift
so that lifts could be completed in the safest possible manner.
Absent from the record is any statement by Hosey or any H&P
employee, or any other evidence, that before the washing machine
was moved, H&P determined that the two-worker manual lift was
unsafe, or that a dolly was needed, but that they had to proceed
without one because they lacked access to one.
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 27 of 30
Hosey’s testimony is consistent with other evidence in the
summary judgment record: two workers sharing the 50+ pound load
and lifting with their legs was what H&P required.
Hosey’s negligence theory that Shell nevertheless owed a duty to
provide H&P unfettered access to equipment H&P may opt to use,
there is no evidence of breach (or if indulging argument, hindering
access to a dolly constitutes breach, there is no legal causation
That Hosey in theory would not want to disturb the
warehouse manager after hours is not material to the issue of
whether a dolly could be located and used on that night or whether
he considered finding or waiting for one.
Alston testified that
if a dolly was needed or it was deemed unsafe to lift something
with only two people, then the task should wait, or the warehouse
manager should be contacted.
Even if Shell had a duty to ensure
that its independent contractor only performed its duties in the
safest possible manner (instead of deferring to its contractor’s
discretion of proceeding in a reasonably safe manner), there is no
indication in the record that the decision to manually lift the
dolly was made by Shell or that H&P elected to proceed manually
solely because Hosey and H&P believed that it could not retrieve
a dolly. 15
There is no dispute in the record that it was H&P that determined
whether a two-man manual lift would be performed or whether a dolly
would be used. Putting a finer point on it, the summary judgment
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 28 of 30
access to a dolly dictated his and Davis’s decision to manually
lift the washing machine.
Whether framed as a failure to prove
duty, breach, or causation, Hosey’s theory of recovery is that
Shell should have provided the same access to dollies during the
night shift as it did during the day shift.
A hindsight theory of
negligence is not a substitute for evidence.
injury claim against Shell calls for speculation layered upon a
contingency that did not come to pass because, as the record
indicates, neither he nor his co-worker nor the deck supervisor
tried to (or considered trying to) locate a dolly to perform the
task; a task that according to H&P policy could be performed in a
reasonably safe manner manually by two workers.
Just like a
principal is generally under no duty to “correct unsafe loading
procedures performed by independent contractors,” Iglesias, 656 F.
Supp. 2d at 602, Shell had no duty to provide unfettered access to
equipment that its independent contractor may or may not choose to
use in completing its work.
the record confirms.
Nor did it breach any such duty as
Summary judgment in Shell Offshore’s favor
See Oliver v. Scott, 276 F.3d 736, 744 (5th Cir.
improbable inferences, unsubstantiated assertions, and legalistic
record indicates that not one H&P employee considered attempting
to retrieve a dolly to complete the washing machine lift at hand.
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 29 of 30
argumentation do not adequately substitute for specific facts
showing a genuine issue for trial.”).
Finally, because Mrs. Hosey’s claims are derivative of her
warranted dismissing her claims.
The plaintiffs have failed to persuade the Court
that Shell Oil Company owned or operated the platform or that Shell
Offshore Inc. owed Hosey a duty (or, if it did owe one, that it
breached one, or that the breach caused his back injury).
hindsight speculation that if it had been easier to obtain a dolly
that night, he would not have been injured fails to bridge the
evidentiary gap created in part by the undisputed fact that the
method chosen by the H&P employees on December 8, 2018 aligns with
general H&P policy and custom that a two-person manual lift is a
reasonably safe method for lifting heavy or awkward items. Because
there is no genuine controversy as to any material facts to be
resolved at trial, the defendants are entitled to judgment as a
matter of law.
Ferrell v. Fireman’s Fund Ins. Co., 96-3028 (La. 7/1/97), 696
So.2d 569, 576.
Case 2:19-cv-09816-MLCF-DPC Document 40 Filed 10/14/20 Page 30 of 30
Accordingly, IT IS ORDERED: that the defendants’ motion for
dismissed with prejudice.
New Orleans, Louisiana, October 14, 2020
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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