Allen v. MC Offshore Petroleum, LLC

Filing 50

RULING: MC Offshore's 33 Motion for Summary Judgment is GRANTED; Chapman Consulting's 31 Motion for Summary Judgment is GRANTED; and APSI's 32 Motion for Summary Judgment to Dismiss Third Party Complaint is GRANTED. Plaintiff's claims are dismissed with prejudice. Judgment shall be entered accordingly. Signed by Judge Shelly D. Dick on 4/17/2015. (SMG) Modified to edit text on 4/17/2015 (SMG).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

J.R. ALLEN

CIVIL ACTION NO.

VERSUS

13-CV-48-SDD-RLB

MC OFFSHORE PETROLEUM, LLC

RULING
This matter is before the Court on the Motion for Summary Judgment1 by
Defendant, MC Offshore Petroleum, LLC (“MC Offshore”). Plaintiff J.R. Allen (“Plaintiff”)
has filed an Opposition2 to which MC Offshore filed a Reply.3 Also before the Court is
the Motion for Summary Judgment4 by Defendant, Chapman Consulting, Inc.
(“Chapman”).

The Plaintiff has filed an Opposition5 to this motion, and Chapman

likewise filed a Reply.6 For the following reasons, the Court finds that both motions
should be granted.
I.

FACTUAL BACKGROUND
On March 30, 2012, Plaintiff was employed by Acadiana Production Service, Inc.

(“APSI”) and was performing his assigned duties on a platform in the Gulf of Mexico,
Green Canyon Block 52, owned and operated by MC Offshore.

MC Offshore had

contracted with APSI to provide laborers to perform various services on this platform.7
Specifically, APSI was to remove and demobilize a compressor, including the piping,
1

Rec. Doc. No. 33.
Rec. Doc. No. 41.
3
Rec. Doc. No. 46.
4
Rec. Doc. No. 31.
5
Rec. Doc. No. 40.
6
Rec. Doc. No. 45.
7
Rec. Doc. No. 33-6.
2

1

channel iron, and other component parts of the old compressor, so that a new
compressor could be installed.8 APSI employee Reed Hebert was present to supervise
this job. MC Offshore contends there were no MC Offshore employees on the platform
on the date of Plaintiff’s injury.9

Additionally, MC Offshore had contracted with

Chapman Consulting, also named a defendant in this lawsuit, to provide an engineering
and management consultant to supervise the work being done on the platform.10
While performing his duties for this job, Plaintiff sustained injuries when he fell
over an allegedly improperly placed piece of channel iron on the deck. According to MC
Offshore, on the date of accident, the APSI crew was removing piping from the
compressor skid when it was determined that a long tubing tray was interfering with
their work. As a result, Plaintiff and a co-worker grabbed the tubing tray and began to
pull it out of the compressor area.

Plaintiff states that he was walking backwards

through the demobilization area when he tripped on the channel iron and fell.11
Specifically, Plaintiff claims that, as a result of this fall, he has suffered acute cervical
and lumbar injuries along with injuries to his right shoulder/upper extremity, and these
injuries will require surgery. Plaintiff also claims that he is entitled to damages for past,
present, and future mental and physical pain and suffering, past and future medical
expenses, and past and future loss of income/earning capacity.
Plaintiff contends that MC Offshore and/or Chapman are liable for his damages
because they failed to provide him a safe place to work; failed to exercise reasonable
care in discovering and correcting the unsafe conditions on the platform; failed to warn

8

Rec. Doc. No. 33-5, p. 87, p. 97.
Rec. Doc. No. 33-6.
10
Id. at p. 19 (attached Exhibit 2).
11
Rec. Doc. No. 33-5, p. 146.
9

2

the Plaintiff of the dangerous and unsafe conditions of the premises; and failed to
properly inspect, maintain, and repair the platform.
MC Offshore and Chapman have moved for summary judgment arguing that
Plaintiff has failed to present any genuine issues of material fact that MC Offshore or
Chapman owed a duty to Plaintiff or were negligent in any manner in this case.

MC

Offshore contends that APSI as well as any APSI subcontractors were independent
contractors on the date of the accident.

Moreover, MC Offshore claims it had no

employees on the platform on the date in question and was not providing any work
instructions or exercising any control whatsoever over Plaintiff or any other workers on
the platform. Chapman also contends that it had no employees in the area of the
platform where Plaintiff’s injury occurred. Both Defendants assert that any channel iron
on the deck would have been an open and obvious danger; thus, Plaintiff’s own
negligence caused his fall.
II.

LAW AND ANLYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”12 “When assessing whether a dispute to any material fact exists, we
consider all of the evidence in the record but refrain from making credibility
determinations or weighing the evidence.”13 A party moving for summary judgment
“must ‘demonstrate the absence of a genuine issue of material fact,’ but need not

12
13

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
3

negate the elements of the nonmovant’s case.”14

If the moving party satisfies its

burden, “the non-moving party must show that summary judgment is inappropriate by
setting ‘forth specific facts showing the existence of a genuine issue concerning every
essential component of its case.’”15 However, the non-moving party’s burden “is not
satisfied with some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”16
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”17 All reasonable factual
inferences are drawn in favor of the nonmoving party.18 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the
summary judgment is required to identify specific evidence in the record and to
articulate precisely how this evidence supports his claim.”19 “Conclusory allegations
unsupported by specific facts … will not prevent the award of summary judgment; ‘the
plaintiff [can]not rest on his allegations … to get to a jury without any “significant
probative evidence tending to support the complaint.”’”20

14

Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (5th Cir. 2003)(quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
15
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
16
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
17
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
18
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
19
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
20
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
4

B. MC Offshore
1. Did MC Offshore Owe a Duty Under the Contract?21
To establish liability under Louisiana Civil Code Article 2315, Plaintiff must show
that MC Offshore owed him a duty, MC Offshore breached that duty, and his harm
resulted from that breach. Duty is a question of law.22 Courts may rely on the contract
terms between the parties to determine the existence and scope of the duties owed.23
MC Offshore contends that Plaintiff cannot satisfy his burden of showing that MC
Offshore owed a duty to Plaintiff to protect him from the type of harm he suffered. MC
Offshore claims that the duty to provide an employee with a safe place to work is
primarily on his employer under Louisiana law. Furthermore, MC Offshore argues that it
did not retain control over the activities of the independent contractors such that an
exception to the general rule applies. MC Offshore points to the specific language of its
contract with APSI in support of its position. The contract between MC Offshore and
APSI provides the following, in pertinent part:
4.2 Independent Contractor. In the performance of the services
hereunder, Contractor [APSI] agrees that it shall act as and be an
Independent Contractor free and clear of any dominion and control by
Company [MC Offshore] in the manner in which said services are to be
performed, and as such Contractor [APSI]:
(a)
acts as the employer of an employee of Contractor [APSI] by
paying wages, directing activities, performing other similar functions
characteristic of an employer-employee relationship;
21

There is no dispute that Louisiana law governs this case because it arises under the Outer Continental
Shelf Land Act (“OCSLA”), and “OCSLA adopts the law of the adjacent state (Louisiana) as surrogate
federal law, to the extent that it is not inconsistent with other federal laws and regulations.” Fruge v.
Parker Drilling Co., 665 F.3d 671, 679 (5th Cir. 2011).
22
Smith v. Hall-Houston Oil Co., No. 98-3433, 2000 WL 6265 at *2 (E.D. La. Jan. 4, 2000)(citing Harris v.
Pizza Hut, 455 So.2d 1364, 1371 (La. 1984)).
23
Foster v. Sasol North America, Inc., No. 13-cv-2813, 2015 WL 338988 at * 2 (W.D. La. Jan. 26, 2015),
citing Dupre v. Chevron, U.S.A., Inc., 913 F.Supp. 473, 480 (E.D. La.1996), aff'd, 109 F.3d 230 (5th
Cir.1997)(citing Graham v. Amoco Oil Co., 21 F.3d 643, 647 (5th Cir. 1994)).
5

(b)
is free to determine the manner in which the work or service
is performed, including the hours of labor of or method of payment to any
employee;
(c)
is required to furnish or have his employees, if any, furnish
necessary tools, supplies or materials to perform the work or service;
(d)
service;24

possesses the skills required for the specific work or
. . .

Additionally, the contract also sets forth as follows:
3.1
Contractor Safety Required. Contractor [APSI] is required to
perform its work under the Contract in a safe and reasonable manner.
Contractor [APSI] shall seek to avoid injury, loss or damage to persons by
taking reasonable steps to protect (a) employees and other persons at the
site; (b) materials and equipment stored at the site or at offsite locations
for use in performance of the work; and (c) all property and structures
located at the site and adjacent work areas, whether or not said property
or structures are part of the work or involved in the work. Contractor
[APSI] shall provide sufficient supervision and training of its employees
concerning all applicable safety laws, rules and regulations. Contractor
[APSI] shall be solely responsible for compliance with all rules and
regulations, including without limitation those promulgated by the United
States Occupational Safety and Health Administration, with respect to the
health and safety of Contractor’s [APSI’s] employees.
4.1 Contractor as Superintendent. Except as set forth below, or to the
extent applicable in circumstances covered by the Louisiana Workers’
Compensation Act, La. R.S. 23:1021, et seq., as described in Section 4.5
below, the actual performance and superintendence of all work hereunder
shall be by Contractor [APSI], but Company [MC Offshore] and its
representatives shall have unlimited access to the operations to determine
whether work is being performed by Contractor [APSI] in accordance with
the provisions of this Contract and the applicable Purchase Order.25
MC Offshore contends the above language clearly shows that it retained no right
to control the work being performed by APSI. In addition, MC Offshore contends the
exact same language is present in its contract with Chapman Consulting, also
designating Chapman as an independent contractor over which MC Offshore exerted no

24
25

Rec. Doc. No. 33-6, p. 8.
Id. at pp. 7-8.
6

supervisory control.

MC Offshore argues that, on the date of Plaintiff’s injury, he

admitted he did not speak to any MC Offshore employees.26 Thus, MC Offshore could
not have provided Plaintiff or the APSI crew with any instructions of any nature, much
less “how to” perform their assigned work.
MC Offshore also points to Plaintiff’s deposition testimony that APSI Supervisor
Reed Hebert was in charge of advising the APSI crew about how to perform their duties
on the platform. When asked if he agreed that how the job “was specifically done is left
up to Reed and the APSI crew,” Plaintiff responded, “Yes, sir.”27

APSI Supervisor

Hebert acknowledged that Chapman Consulting consultant Ervin Gordon, who was
present on the date of the accident, gave Plaintiff no instructions on how to perform his
work. Hebert was asked: “Would it be fair to say that [Gordon] kind of acted as a
liaison between MC Offshore and yourself, basically to get the instructions from MC
Offshore as to what they needed done and sort of relay that to you for further
handling?”28 Hebert responded, “Yes.”29 Hebert’s testimony also acknowledged that
instructions regarding the details of the APSI crew’s work, such as cutting pipes or
removing tubing, came from him as the supervisor.30

Plaintiff’s testimony also

acknowledged that the Chapman consultant provided no instructions on how to perform
his duties on the date in question.31

Thus, MC Offshore contends it is entitled to

summary judgment because Plaintiff cannot satisfy his burden on his negligence claim
that MC Offshore owed him a duty.

26

Rec. Doc. No. 33-5, p. 23 (Deposition of J.R. Kawanski Allen, p. 195).
Id. at pp. 9-10 (Deposition of J.R. Kawanski Allen, pp. 122-23).
28
Rec. Doc. No. 33-7, pp. 19-20 (Deposition of Reed A. Hebert, pp. 129-130).
29
Id.
30
Id. at p. 20 (Deposition of Reed A. Hebert, p. 130).
31
Rec. Doc. No. 33-5, p. 9 (Deposition of J.R. Kawanski Allen, pp. 122).
27

7

In opposition to MC Offshore’s motion, Plaintiff contends there are several
disputed material facts which preclude summary judgment in this case. First, Plaintiff
contends that whether it was APSI’s responsibility to remove the hazard on which he
tripped is a disputed issue of fact.

Second, Plaintiff also disputes MC Offshore’s

contention that no MC Offshore employee was on the platform on the date of Plaintiff’s
injury. Plaintiff points to the testimony of Bryan Lee, a Chapman Consulting employee,
who testified about a “lead guy on the platform for MCOP [MC Offshore].”32
The Court finds that Plaintiff has failed to carry his burden on his negligence
claim against MC Offshore. Applying the law to the facts of this case, and in light of the
clear terms of the parties’ contract, MC Offshore is entitled to summary judgment on this
claim. Under Louisiana law, a principal is generally not liable for the conduct of an
independent contractor.33 There are exceptions where “(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.”34
It is undisputed in this case that the first exception does not apply because this
case does not involve ultrazardous activity. The Fifth Circuit has stated that, “whether
[a] case fits within the second exception is a more complicated question.”35 The Fifth
Circuit has routinely held that: “Operational control exists only if the principal has direct
supervision over the step-by-step process of accomplishing the work such that the

32

Rec. Doc. No. 41-3, p. 3 (Deposition of Bryan Lee, p. 16).
Coulter v. Texaco, Inc., 117 F.3d 909, 911–12 (5th Cir.1997).
34
Id. at 912.
35
Ukudi v. McMoran Oil & Gas, L.L.C., 587 F. App’x 119, 122 (5th Cir. Sept. 29, 2014).
33

8

contractor is not entirely free to do the work in his own way.”36 Moreover, “absent an
express or implied order to the contractor to engage in an unsafe work practice leading
to an injury, a principal … cannot be liable under the operational control exception.”37
“In deciding questions of operational control, the court considers both the contract
between the parties and the extent to which the principal actually exercises control.”38
Based on the record before the Court and the binding contract between the
parties, it is clear that MC Offshore lacked the type of operational control required for
application of this exception. The contract language cited above clearly places the
burden of safety on APSI. Plaintiff’s proffered factual disputes are immaterial to the
determination of whether MC Offshore owed a legal duty to Plaintiff. In fact, whether an
MC Offshore employee was present on the platform or not is insufficient to defeat
summary judgment. Courts have held that “the physical presence of a representative of
a principal is not sufficient to show supervision or control.”39

“Neither are periodic

inspections by a principal’s agent.”40 The testimony set forth above of both Plaintiff and
APSI Supervisor Hebert also undermines any argument that there is a factual dispute
over who controlled and/or supervised the work being performed by the APSI crew on
36

Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir. 2003)(citing LeJeune v. Shell Oil
Co., 950 F.2d 267, 270 (5th Cir.1992); McCormack v. Noble Drilling Corp., 608 F.2d 169, 175 n. 9 (5th
Cir.1979).
37
Coulter, 117 F.3d at 912 (citing Graham, 21 F.3d at 646; Ainsworth v. Shell Offshore, Inc., 829 F.2d
548, 550 (5th Cir. 1987)).
38
Ukudi, 587 F. App’x at 122, citing Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 193 (5th Cir.1991).
39
Fruge, 337 F.3d at 564; see also Graham, 21 F.3d at 646 (finding no operational control or implied
authorization when the “‘company man’ merely observed [the independent contractor’s] employees
performing the duties for which the governing contract gave them the ‘sole’ responsibility”); see also
Woods v. Apache Corporation et al, No. 11-1928, 2013 WL 5673606 (E.D. La. Oct. 17, 2013)(“‘The fact
that a principal … reserves the right to monitor its contractor’s performance and stations a “company
man” on the platform who observes the contractor’s activities, has the right to make safety
recommendations to the contractor, and is obligated to report continuing unsafe work practices or
conditions to his … superiors, does not mean that the principal controls the methods or details of the
contractor’s work.’”)(quoting Coulter, 117 F.3d at 912).
40
Borel v. Chevron U.S.A., Inc., No. 09-2799, 2009 WL 8138279 at *3 (E.D. La. Nov. 19, 2009), citing
Fruge, 337 F.3d at 564; see also Coulter, 117 F.3d at 912.
9

the date of Plaintiff’s injury. The Court finds that MC Offshore did not exercise control
over the work site and cannot be held liable for the offenses of its independent
contractor under the facts of this case.

Summary judgment is appropriate in favor of

MC Offshore on the negligence claim.
Jurisprudence supports the Court’s holding on this issue.

The Fifth Circuit

affirmed a district court’s decision to grant summary judgment to the principal in Ukudi v.
McMoran Oil & Gas, L.L.C.41 Ukudi involved a subcontractor’s employee who was
injured while working on an offshore platform. Ukudi sued the owner of the platform,
arguing that the principal exercised sufficient operational control to trigger liability for
negligence under Louisiana law. The contract between the parties provided that the
principal would exercise no control over the subcontractor’s personnel or the methods
or means employed by the subcontractor in the performance of the work.42 However,
Ukudi presented evidence that a principal’s employee had prohibited the plaintiff’s crew
from using certain equipment and gave other salient instructions to the work being
performed. The Fifth Circuit affirmed the district court’s decision to grant summary
judgment in favor of the principal, holding as follows:
This degree of involvement does not rise to the level of operational
control. Although the parties have not identified any cases in which a
principal told a contractor not to use one method for safety reasons but
provided no further directions, this behavior is closer to the periodic
inspections at issue in Williams v. Gervais F. Favrot Co., 499 So.2d 623,
626 (La.App. 4th Cir.1986), writ denied, 503 So.2d 19 (La.1987), than to
“direct supervision over the step-by-step process,” Fruge, 337 F.3d at 564,
or “an express or implied order to the contractor,” Coulter, 117 F.3d at
912. The fact that Louisiana courts have previously emphasized the
language of the contract over the extent to which the principal actually
41
42

See note 35, supra.
Ukudi, 587 F. App’x at 122.
10

exercised control supports this conclusion. See Hemphill v. State Farm
Ins. Co., 472 So.2d 320, 322 (La.App. 3d Cir.1985). In short, the district
court was correct in granting summary judgment on the vicarious-liability
claims.43
The district court in Alexander v. Broadmoor LLC, et al44 reached the same
conclusion under similar factual circumstances. Alexander was injured when he tripped
while unloading and transporting duct on the property of the principal in performance of
duties relating to a contract to install an HVAC system in the offshore living module on
the principal’s property. The district court for the Eastern District of Louisiana granted
summary judgment in favor of the principal for several reasons. First, the court found
that “[n]o where in the contract does Defendant reserve the right to direct any part of the
work performed by the sub-contractors on its property.”45 The court also found that the
presence of defendant’s employees on the work site did not demonstrate control over
the premises, relying on Fruge.46

The court stated:

“this minimal activity by

Defendant’s representatives is not enough to make a demonstration of Defendant’s
control over the work space.”47
Accordingly, Plaintiff has failed to present summary judgment evidence that
material facts are in dispute on this issue, and MC Offshore is entitled to summary
judgment on the Article 2315 negligence claim.
2. Custodial Liability under Louisiana Civil Code Article 2317.1
Plaintiff also claims that MC Offshore is liable under Louisiana Civil Code Article
2317.1, which provides as follows:

43

Id. at 123.
No. 04-3326, 2006 WL 2088287 (E.D. La. July 24, 2006).
45
Id. at *2.
46
Id. at *3, citing Fruge, 337 F.3d at 564.
47
Id.
44

11

The owner or custodian of a thing is answerable for damage occasioned
by its ruin, vice, or defect, only upon a showing that he knew or, in the
exercise of reasonable care, should have known of the ruin, vice, or defect
which caused the damage, that the damage could have been prevented
by the exercise of reasonable care, and that he failed to exercise such
reasonable care. Nothing in this Article shall preclude the court from the
application of the doctrine of res ipsa loquitur in an appropriate case.48
Under this article, Plaintiff contends that MC Offshore is liable for the unsafe conditions
of the platform. To prevail on a custodial liability claim, a plaintiff must demonstrate: “(1)
the object was in the defendant's custody; (2) the thing contained a vice or defect which
presented an unreasonable risk of harm to others; (3) the defective condition caused
the damage; and (4) the defendant knew or should have known of the defect.”49 MC
Offshore moves for summary judgment on this claim primarily because it contends
Plaintiff has failed to establish that the channel iron presented an unreasonable risk of
harm, and Plaintiff has failed to present summary judgment evidence that MC Offshore
knew or should have known of this “defect.” The Court will address each argument in
turn.
a. Unreasonable Risk of Harm
“For a defect to create an unreasonable risk of harm, ‘the defect must be of such
a nature as to constitute a dangerous condition which would reasonably be expected to
cause injury to a prudent person using ordinary care under the circumstances.’”50

48

Article 2317.1 modifies Article 2317 by removing strict liability and imposing liability on an owner or
custodian of an object only if the object causes damage “occasioned by its ruin, vice, or defect, only upon
showing that [the owner] knew of the ruin, vice, or defect ..., that the damage could have been prevented
by the exercise of reasonable care, and [the owner] had failed to exercise such reasonable care.”
Venezia v. ConocoPhillips Co., 2014 WL 107962 at *10 (E.D. La. Jan. 9, 2014)(citing La. Civ.Code art.
2317.1 (1996); Reaux, 840 So.2d at 24).

49

Cormier v. Dolgencorp, Inc., 136 Fed. Appx. 627, 627–28 (5th Cir. 2005) (citing La. C.C. arts. 2317 and
2317.1).
50
Price v. Roadhouse Grill, Inc., 512 F.Supp.2d 511, 516 (W.D. La. 2007), quoting Durmon v. Billings,
38,514 (La.App. 2 Cir. 5/12/04), 873 So.2d 872, 876.
12

Applying Louisiana law, courts have generally held that the simple fact that an accident
occurred as a result of an alleged defect does not alone “elevate the condition of the
thing to that of an unreasonably dangerous condition.”51 Courts are to consider not only
the past accident history of the defect in question, but also “the degree to which a
danger may be observed by a potential victim.”52

“If the ‘risk of harm is obvious,

universally known and easily avoidable, the risk is not unreasonable.’”53 Moreover, “the
unreasonable risk of harm criterion cannot be applied mechanically.”54 Instead, the
court “must balance the claims and interests, weigh the risks and the gravity of harm,
and consider the individual and societal rights and obligations. The court must balance
the probability and magnitude of the risk against the utility of the thing.”55
MC Offshore contends that the material facts on this issue are undisputed. MC
Offshore cites Plaintiff’s testimony that the channel iron was a different color than the
deck, and that, if he looked down, he could see the yellow channel iron on the gray
deck.56 When asked if Plaintiff had looked down, would he have seen the channel iron,
he testified: “Yeah. Yeah, if I would had [sic] looked down, I would have seen it.”57
Plaintiff was asked if the yellow channel iron was obvious, to which he responded:
“Yeah.”58 MC Offshore argues Plaintiff’s own testimony shows that there is no disputed
fact that the channel iron was open and obvious. Moreover, MC Offshore avers that the

51

Durmon, 873 So.2d at 877.
Id.
53
Price, 512 F.Supp.2d at 516, quoting Durmon, 873 So.2d at 877; see also Manchack, 621 So.2d at 654
(stating that “evidence of the absence of other accidents at the same place is relevant and admissible as
tending to show that the place was not dangerous and that the defendant did not have actual or
constructive knowledge of a dangerous condition.”).
54
Id., citing Limberg v. Winn Dixie Louisiana, Inc., 622 So.2d 1178, 1179 (La.App. 4 Cir. 1993).
55
Limberg, 622 So.2d at 1179.
56
Rec. Doc. No. 33-5, p. 12 (Deposition of J.R. Kawanski Allen, p. 128).
57
Id. at p. 18 (Deposition of J.R. Kawanski Allen, p. 174, lines 5-6).
58
Id. (Deposition of J.R. Kawanski Allen, p. 174, lines 9-10).
52

13

removal of the channel iron was within the scope of the work tasked to the ASPI crew;
thus, the presence of pieces of channel iron on this type of job was not uncommon or
unanticipated.
In opposition to this argument, Plaintiff curiously attempts to discredit his own
sworn testimony in an effort to offer disputed facts. Plaintiff contends that the statement
“Plaintiff testified that the yellow channel iron was obvious against the gray platform
and, had he looked down, he would have seen the channel iron” is “strongly disputed by
the plaintiff in the testimony of various witnesses, by documents, or were obtained from
witnesses whose credibility on such issues is questionable and should not support
summary judgment, since credibility should not be determined on the present motion.”59
Plaintiff then challenges the testimony that the conduit and channel iron were flagged,
relying on testimony by APSI Supervisor Hebert that he had asked someone to flag the
channel iron as a hazard.60

Plaintiff contends the fact that Hebert requested the

channel iron be flagged as a hazard is a credibility determination improper on summary
judgment. Plaintiff also argues that the fact that the channel iron was painted yellow
does not render it “open and obvious” because: (1) if such objects were so obvious
they would not need to be flagged, and (2) many items on the platform are painted
yellow such that the channel iron did not stand out in the manner MC Offshore claims.
Finally, Plaintiff contends that whether a defect is “open and obvious” is a mixed
question of law and fact, as held by many courts, including this Court, thereby
precluding summary judgment.

59
60

Rec. Doc. No. 41, p. 3.
Id. at p. 4, citing Rec. Doc. No. 41-2, pp. 7-9 (Deposition of Reed A. Hebert, pp. 89-92).
14

Notwithstanding the fact that the Plaintiff has not presented any evidence that the
channel iron was a vice or defect of the platform itself,61 the Court finds that the channel
iron was open and obvious by virtue of Plaintiff’s sworn testimony. Despite Plaintiff’s
protestations, his testimony was directly quoted above, and he admitted that he would
have seen the channel iron had he looked down. The dispute over the flagging or
tagging of the channel iron does not create a disputed issue of material fact. To be
clear, the Court acknowledges that it has recently held62 that whether a defect is open
and obvious is generally a mixed question of law and fact and properly left to a jury;
however, in the case cited by Plaintiff, the issue was actually disputed. Plaintiff’s sworn
testimony in this matter establishes that no factual dispute exists for a jury on this
particular issue.
Plaintiff’s contention that there is a factual dispute regarding whether it was
APSI’s responsibility alone to remove the channel iron is likewise undermined by
Plaintiff’s own testimony. Plaintiff was asked: “So part of what APSI was hired to do is
to remove the channel iron and take it off the deck?” Plaintiff’s response was: “Yeah.
Move all the old and come back all with new.”63 When asked repeatedly if cutting the
channel iron was in the scope of APSI’s work, Plaintiff responded in the affirmative
every time.64 Regardless of the fact that addressing the channel iron may have been a
shared responsibility among APSI and other parties, it was clearly acknowledged by
Plaintiff as falling within the scope of APSI’s duties on this particular job.
61

“A defect is some flaw or fault or condition of relative permanence existing or inherent in the thing itself
as one of its qualities” and which poses “an unreasonable risk of harm.” McBride v. Cracker Barrel
Stores, Inc., 649 So.2d 465, 467 (La. Ct. App.1994). There is no evidence that the channel iron is
inherent to the platform itself.
62
See Farrow v. Dolgencorp. LLC, No. 12-804, 2014 WL 1118122 (M.D. La. Mar. 20, 2014).
63
Rec. Doc. No. 33-5, p. 14 (Deposition of J.R. Kawanski Allen, p. 142, lines 1-5).
64
Id. at p. 24 (Deposition of J.R. Kawanski Allen, pp. 195-96).
15

Applicable jurisprudence supports the Court’s finding on this issue. In George v.
Nabors Offshore Corporation,65 the Fifth Circuit affirmed the district court’s grant of
summary judgment to the platform owner and the company hired by the platform owner
to conduct drilling operations. The plaintiff was a welder and part of a welding crew
contracted to remove a bullfrog crane from an offshore platform located off the coast of
Louisiana. The plaintiff had eighteen years of experience performing such work and
had regularly been involved in the removal of cranes and rigs from platforms.66 The
plaintiff was injured when he tripped over hoses stacked upon the platform’s deck while
in the course of his duties, and he sued both the platform owner and drilling company
for his injuries. The district court granted summary judgment in favor of the defendants,
and the Fifth Circuit affirmed, holding as follows:
As the district court correctly determined, any reasonable person walking
over the hoses would have realized their potential danger. George, with
eighteen years of experience on offshore platforms, admitted in his
deposition that he saw the hoses, knew they posed a possible danger,
and knew that he had to cross them with caution. The danger posed by
heavy coiled hoses piled six to eight inches deep is “obvious to all,”
Dauzat, 995 So.2d at 1186, and was particularly obvious to George
considering his considerable offshore platform experience. See Walker v.
Union Oil Mill, Inc., 369 So.2d 1043, 1047 (La.1979) (“[I]n considering a
defendant's duty to a particular person, consideration should be given to
the person's age, maturity, experience, familiarity with the premises and its
dangers, and other such factors which might increase or decrease the risk
of harm to that person.”).67
. . .
Louisiana's rule is clear: landowners have no duty where the condition
“should have been observed by the individual in the exercise of
reasonable care,” or was “as obvious to a visitor as it was to the
landowner.” Dauzat, 995 So.2d at 1186. The undisputed evidence shows
that George observed the coiled hoses and appreciated the danger they
posed. We therefore agree with the district court that the coiled hoses
65

464 F. App’x 298 (5th Cir. 2012).
Id. at 299.
67
Id. at 300-01.
66

16

were so open and obvious that they did not, as a matter of law, constitute
an unreasonably dangerous condition; accordingly, Nabors did not owe
George a duty to warn or cure the danger posed by the hoses. See id. at
1186–87.68
Also relevant is the decision in Duffy v. Conoco, Inc.,69 relied upon by MC
offshore in support of its motion for summary judgment.

Duffy involved a plaintiff

employed by an independent contractor hired to cut drive pipe to be used in installing a
wellhead.70 With respect to the plaintiff’s claim under Article 2317.1, the court found
that the slot in the platform into which the plaintiff slipped did not constitute an
unreasonable risk of harm.71 Of particular note, the court found that, although “Duffy
was not hired to fix the alleged defect,” “he was hired with the understanding that the
slot was a necessary part of the job.”72 Similarly, in the present case, the Court finds
that, not only did Plaintiff acknowledge that that yellow channel iron was open and
obvious on the deck, he also acknowledged that removing old channel iron was within
the scope of APSI’s work on the platform.
b. Knowledge of the Defect
MC Offshore also contends that Plaintiff has failed to carry his burden of showing
that MC Offshore knew, or through the exercise of reasonable care should have known,
of the alleged defect. MC Offshore claims that Plaintiff has failed to present evidence of
any prior incidents involving the channel iron that would have put MC Offshore on actual
or constructive notice of such a hazard. Thus, because Plaintiff has failed to present
summary judgment evidence on another required element, MC Offshore maintains that
it is entitled to summary judgment on Plaintiff’s article 2317.1 claim.
68

Id. at 301.
No. 95-0600, 1996 WL 271635 (E.D. La. May 21, 1996).
70
Id. at
71
Id. at *5.
72
Id.
69

17

Plaintiff opposes MC Offshore’s arguments on this element stating that there is
no evidence that there were no MC Offshore employees present on the platform on the
date in question. Plaintiff also argues that, although he cannot show actual notice in
this case on the current record, there is sufficient evidence of constructive notice based
on APSI Supervisor Hebert’s testimony that the hazard was already on the platform
when the APSI crew arrived.
The Court finds Plaintiff’s arguments on this element to be meritless.

First,

Plaintiff erroneously shifts the burden onto MC Offshore, stating that it “has not put
forward any evidence that it exercised any care to discover and correct the hazard
which caused plaintiff’s accident and injury…”73 As MC Offshore correctly points out, it
is not a defendant’s burden to come forward with any evidence. The burden is on the
Plaintiff to satisfy all of the elements required by Article 2317.1.
Further, contrary to Plaintiff’s assertion, MC Offshore did provide summary
judgment evidence showing that there were no MC Offshore employees present on the
platform on the date of Plaintiff’s injury. The Affidavit of Ashu Vashisht, President of MC
Offshore Petroleum, LLC since 2007, attests to the fact that MC Offshore did not have
any employees on the Green Canyon 52 platform on the date in question.74 The Court
also finds Plaintiff’s reliance on the testimony of Chapman Consulting employee Bryan
Lee to be misplaced. Lee testified that, if he wanted an APSI employee fired, he would
have to “coordinate that through the lead guy on the platform for MCOP.”75 Lee referred
to this person as “the platform PIC or person in charge.”76 The Court agrees with MC

73

Rec. Doc. No. 41, p. 11.
Rec. Doc. No. 33-6 (Affidavit of Ashu Vashisht).
75
Rec. Doc. No. 41-3, p. 3 (Deposition of Bryan Lee, p. 16, lines 22-23).
76
Id. at p. 4 (Deposition of Bryan Lee, p. 17, lines 5-6).
74

18

Offshore that this statement does not indicate that an MC Offshore “lead guy” or “person
in charge” was always physically present on the platform at issue.

As such, the Court

finds that Plaintiff has also failed to carry his burden on this element,77 and MC Offshore
is entitled to summary judgment as a matter of law on the Article 2317.1 claim.
C. Chapman Consulting
Plaintiff originally only brought suit against MC Offshore; however, Plaintiff later
filed an Amended Complaint78 to name Chapman as a defendant under the same
negligence theories brought against MC Offshore. In large part, the reasoning set forth
above with respect to MC Offshore applies with equal force to the claims against
Chapman. However, unlike MC Offshore, Chapman and APSI were not contractually
obligated to each other. Rather, Chapman was hired as an independent contractor by
MC Offshore to ensure that the APSI crew met the requirements and specifications of
the work which APSI was hired to complete.79 To the extent that Plaintiff claims that
Chapman voluntarily assumed the legal duty to provide a safe work place for the APSI
crew, the Court will review the facts and applicable law pertaining to that argument.
However, Plaintiff’s claims under Article 2317.1 are clearly foreclosed against Chapman
for the same reasons set forth above, and, more specifically, because Chapman is not
the owner of the property containing the alleged defect.
Plaintiff contends there are material facts in dispute regarding Chapman’s
exercise of supervisory control over the APSI crew’s work on the platform. Bryan Lee,
an employee of Chapman Consulting acting as general manager for the work being
77

The Court notes that, even if it found that a fact issue existed with respect to constructive knowledge,
Plaintiff would still fail on this claim for failing to present evidence that the alleged defect presented an
unreasonable risk of harm as discussed previously.
78
Rec. Doc. No. 12.
79
Rec. Doc. No. 31-4.
19

performed by Chapman on the Green Canyon 52 platform, declared under penalty of
perjury that: “Chapman Consulting, Inc. had only one employee, Ervin (J.R.) Gordon
onboard the Green Canyon 52 platform on or about March 30, 2012. Gordon was an
inspector for Chapman Consulting whose role was to ensure that the Acadiana
Production Services, Inc. (“APSI”) crew met the requirements and specifications of the
work which APSI was hired by MC Offshore to complete.”80

Plaintiff claims this

statement is “an overgeneralization” of the work Chapman performed.81 Plaintiff cites
the testimony of APSI Supervisor Hebert that Gordon “was the company man out there
supervising jobs,” and that “[h]e was in charge, in charge of the project, make sure
everything got done as to scope of work and also safety.”82 Plaintiff acknowledges that,
in his deposition, Chapman employee Bryan Lee contradicted Hebert’s testimony,
testifying that Chapman’s job was not safety but rather “to make sure that the
construction work is being performed according to the specifications.”83

Plaintiff

contends this factual dispute precludes Chapman’s summary judgment. Plaintiff also
points to testimony that Gordon attended safety meetings with APSI every morning
when Job Safety Analyses (“JSA”) are discussed.84

Lee also testified that part of

Gordon’s job was to review the JSAs and to discuss ways to “fix” potential hazards with
APSI’s supervisor.85

Finally, Plaintiff references an “Inspection and Cost Tracking

Report” which Chapman provided daily to MC Offshore that contained an area available
to report “Problematic Personnel.”

For these reasons, Plaintiff contends there are

80

Rec. Doc. No. 31-4, pp. 1-2 (Unsworn Declaration Pursuant to 28 U.S.C. § 1746).
Rec. Doc. No. 40, p. 9.
82
Rec. Doc. No. 40-2, p.3 (Deposition of Reed A. Hebert, p. 46, lines 9-10, 12-14).
83
Rec. Doc. No. 40-5, p. 16 (Deposition of Bryan Lee, p. 32, lines 20-23).
84
Id. at 9-10 (Deposition of Bryan Lee, pp. 25-26).
85
Id. at p. 16 (Deposition of Bryan Lee, p. 32, line 12).
81

20

material issues of fact in dispute regarding the level of operational control exercised by
Chapman over the APSI crew, and regarding whether Chapman voluntarily assumed a
duty for the safety of personnel on this project and subsequently breached that duty.
Viewing the evidence in the light most favorable to Plaintiff, the law is clear that
Chapman is entitled to summary judgment on this issue. The Fifth Circuit has held that
“operational control only arises if the principal ‘exercises direct supervision over the
step-by-step process of accomplishing the work.’”86

Further, “[d]irect step-by-step

supervision refers to the case where the principal substitutes the independent
contractor’s entire method and manner of operation for one of its own.”87 It is without
question that a principal may specify “that which an independent contractor is to
accomplish,”88 and may monitor work progress.89 As such, “the giving of specifications
and demand that certain standards be met is insufficient to hold that a principal has
retained the right to exercise control.”90
In Carroll v. Mobil Oil Corp.,91 the court determined that warning an independent
contractor’s employees of a safety hazard is not a basis for imposing liability on the
principal when the duty to provide a safe workplace is contractually assigned to the
contractor. “To find otherwise would discourage ‘company men’ who notice potential
safety hazards from pointing them out to the independent contractor and his
employees.”92 The fact that Chapman could, and did, point out safety problems to APSI
did not render Chapman in control of APSI’s safety and does not establish any step-by86

Grammer v. Patterson Servs., Inc., 860 F.2d 639, 643 (5 th Cir. 1988)(quoting Guillory v. Conoco, Inc.
(521 So.2d 1220, 1223 (La. Ct. App. 3d Cir. 1988)).
87
Haynie v. Dynamic Offshore Contractors, Inc., 1991 WL 33615 at * 4 (E.D. La. Mar. 7, 1991).
88
Grammer, 860 F.2d at 645.
89
See Guillory, 521 So.2d at 1223.
90
Haynie, at *4.
91
No. 94-0158, 1994 WL 665781 (E.D. La. Nov. 29, 2994).
92
Id. at *4.
21

step supervision but rather indicates a monitoring of APSI’s work in accordance with the
terms of the contract between Chapman and MC Offshore.
Federal district courts in Louisiana routinely apply the Fifth Circuit’s holding in
LeJeune v. Shell Oil Company,93 which made clear that even a “comprehensive” safety
inspection program will not result in a finding of operational control over the contractor’s
work when the terms of the contract unambiguously indicate that safety is the ultimate
responsibility of the contractor.94 The general rule remains:
[T]he fact that a principal ... reserves the right to monitor its contractor's
performance and stations a “company man” on the platform who observes
the contractor's activities, has the right to make safety recommendations
to the contractor, and is obligated to report continuing unsafe work
practices or conditions to his superiors, does not mean that the principal
controls the methods or details of the contractor's work. 95
Moreover, courts have acknowledged that:
To create a duty based on plaintiff's claim that [a contracted safety
consultant] “examin[ed] its contractor's work place, procedures and
equipment for safety concerns” would amount to an end-run around a
large body of Fifth Circuit precedent finding no “operational control”
despite some knowledge of risk or involvement with safety issues and the
presence of “company men” on the contractor's rig.96
Thus, the fact that part of Chapman’s job duties may have included ensuring that
APSI complied with safety procedures does not mean that Chapman voluntarily
assumed responsibility for the APSI crew’s safety or wielded operational control over
the step-by-step manner and method in which APSI carried out its work. The testimony
of APSI Supervisor Hebert confirms this:

93

950 F.2d 267 (5th Cir. 1992).
Id. at 269-70; Dupre, 913 F. Supp. at 473.
95
Venezia, 2014 WL 107962 at *9 (quoting Coulter, 117 F.3d at 912).
96
Id. at *9, quoting Dupre, 913 F.Supp. at 483; accord In re Oil Spill by the Oil Rig Deepwater Horizon in
the Gulf of Mexico, on April 20, 2010, 808 F.Supp.2d 943, 963 (E.D.La. 2011).
94

22

Q: And you had mentioned something about safety too. What exactly did
you mean when you said he had some role in safety?
A: Well, as a company man, it’s like teamwork between JR Gordon and
me. It’s like we’re a team. We work together. He has like a
responsibility to make sure everything is safely done. And my job is to
monitor that while he’s doing his paperwork or reports in the
morningtime, whatever. It’s my responsibility to hold that safety down.
Q: So you’re more – I guess is he more the safety guy from a perspective
of like maybe when you meet in the morning, he’s there to facilitate
discussions or be present for discussions of safety?
A: Yes.
Q: But once you actually get in your area, you’re the one who’s looking
out for your crew?
A: Yes.
Q: He’s not in that area, in your flagged-off area?
A: Right.
Q: Would it be fair to say that JR kind of acted as a liaison between MC
Offshore and yourself, basically to get the instructions from MC
Offshore as to what they needed done and sort of relay that to you for
further handling?
A: Yes.
Q: In other words, he would tell you, Reed, this is what MC Offshore
needs done. And you say, all right, I’ll take these instructions and let
my crew know what they need to do?
A: Correct.
Q: JR didn’t tell them, you need to cut this pipe or you need to remove this
tubing, anything like that?
A: No.
Q: Those type of instructions were – came from you as the supervisor?
A: Yes.
Q: Or whoever was the supervisor on any APSI project?
A: Yes.97
Hebert’s testimony comports with the contractual language of the MC
Offshore/APSI contract set forth above noting APSI’s responsibility “to perform its work
under the Contract in a safe and reasonable manner,” “to avoid injury, loss or damage
to persons by taking reasonable steps to protect … employees and other persons at the

97

Rec. Doc. No. 33-7, pp. 19-20 (Deposition of Reed A. Hebert, p. 129, lines1-25 through p. 130, lines 124).
23

site…”98 To hold Chapman or MC Offshore responsible for the safety of APSI’s crew
would circumvent the clear terms of the contract.
Gordon’s participation in safety meetings is likewise insufficient to find liability.
The Carroll court also addressed this issue. 99 In Carroll, Mobil contracted with Seawolf
to install production facilities on one of its platforms. The written contract between the
parties contained similar language to the MC Offshore/APSI contract.

A Seawolf

employee was injured while he was performing welding duties associated with this
job.100

The plaintiff sued Mobil and argued that it exercised operational control by

inspecting Seawolf’s operations to monitor compliance with safety provisions.

The

plaintiff’s claim was based on the fact that a Mobil employee, “company man” Coleman
Dupre, was involved in the daily safety meetings and advised Seawolf’s employees to
be aware of potential hazards.

The court held that “[t]his involvement does not

constitute implied authorization of Seawolf’s employee’s negligent acts.”101 Specifically,
the court held:
In the instant case, Dupre merely assisted at safety meetings and warned
Seawolf's employees about the condensation dripping from the production
line. Such actions are insufficient to constitute an assumption of the duty
to provide a safe workplace which was contractually assigned to Seawolf.
To find otherwise would discourage “company men” who notice potential
safety hazards from pointing them out to the independent contractor and
his employees. Furthermore, the contract provided that Mobil could
inspect Seawolf's procedures for compliance with safety requirements, but
that did not diminish the duty owed by Seawolf.102
Although Gordon is a Chapman employee, to the extent he acted as MC
Offshore’s “company man,” the reasoning of Carroll applies with equal force to the facts
98

Rec. Doc. No. 33-6, pp. 7-8, Section 3.1 of Contract.
Carroll, 1994 WL 665781.
100
Id. at *1.
101
Id. at *3.
102
Id. at *4.
99

24

of this case. Neither MC Offshore nor Chapman assumed responsibility for the safety of
APSI’s crew by virtue of attending safety meetings and ensuring compliance with the job
specifications. That responsibility was clearly the contractual obligation of APSI alone.
Thus, Chapman Consulting is entitled to summary judgment on all claims brought by
Plaintiff. Because the claims against Chapman are dismissed, the Court will GRANT
APSI’s Motion for Summary Judgment to Dismiss Third Party Complaint.103
III.

CONCLUSION
For the reasons set forth above, MC Offshore’s Motion for Summary Judgment104

is GRANTED; Chapman Consulting’s Motion for Summary Judgment105 is GRANTED;
and APSI’s Motion for Summary Judgment to Dismiss Third Party Complaint106 is
GRANTED. Plaintiff’s claims are dismissed with prejudice.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on April 17, 2015.

S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

103

Rec. Doc. No. 32. The Court notes that it is only granting this motion as a result of Chapman’s
dismissal from this lawsuit. Had Chapman remained in this lawsuit, the Court would have denied APSI’s
motion on the finding that the Louisiana Oilfield Indemnification Act (“LOIA”) does not apply to this case
under the test set forth by the Fifth Circuit in Transcontinental Gas Pipeline Corp. v. Transportation
Insurance Co., 953 F.2d 985 (5th Cir. 1992).
104
Rec. Doc. No. 33.
105
Rec. Doc. No. 31.
106
Rec. Doc. No. 32.
25