Case: 11-20116 Document: 00511784887 Page: 1 Date Filed: 03/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 12, 2012
No. 11-20116 Lyle W. Cayce
Clerk
GARY GEORGE,
Plaintiff–Appellant
v.
NABORS OFFSHORE CORPORATION,
Defendant–Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-1884
Before JONES, Chief Judge, PRADO and SOUTHWICK, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
Plaintiff–Appellant Gary George was working on an offshore platform
owned by Chevron USA (“Chevron”) when he tripped over hoses stacked upon
the platform’s deck and fractured his ankle. George sued Chevron and Nabors
Offshore Corporation (“Nabors”), the company Chevron had hired to conduct
drilling operations. George claimed that Nabors owned the hoses; the hoses
constituted an unreasonably dangerous condition; Nabors owed him a duty to
either correct the condition or warn him of its existence; and Nabors breached
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-20116
that duty. Nabors and Chevron moved for summary judgment, arguing that the
hoses were open and obvious and therefore not unreasonably dangerous. The
district court granted Nabors’s and Chevron’s motions, and George appealed only
the summary judgment granted to Nabors. We affirm.
I. BACKGROUND
Gary George was employed as a welder by Dynamic Industries
(“Dynamic”). On January 29, 2008, George was part of a Dynamic welding crew
that was removing a bullfrog crane from an offshore platform owned by Chevron
and located off the coast of Louisiana. George had eighteen years of experience
on offshore platforms and had been involved regularly in the removal of cranes
and rigs from platforms. Chevron had contracted with Dynamic to perform
welding services on its platform. Also on the platform that day was a crew from
Nabors, which Chevron had contracted with to conduct drilling operations on its
platform. Nabors owned the drilling rig that had been used on the platform, and
removed the day before. Nabors was in the process of cleaning and packing its
equipment in preparation to leave the platform. Nabors and Dynamic did not
have a contractual relationship.
On the day of the accident, George was walking from the galley to his
worksite near the bullfrog crane. To access his worksite, George had to cross a
beam running down the middle of the platform that supported the platform
crane. There were scaffolding stairs set up to get from one side of the platform
crane beam to the other. George had planned to use the scaffolding stairs to
cross to the other side of the platform crane beam, then use a two-foot-wide
walkway right next to that beam to access his worksite. When he reached the
other side of the beam, however, he saw that the walkway alongside the beam
was blocked by Nabors riggers who had a fuel tank suspended in the air by a
crane, and were emptying that fuel tank into another. George decided to access
his worksite by crossing a portion of the deck which was covered with coiled
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No. 11-20116
hoses six to eight inches deep. He thought he could negotiate the hoses safely
and knew that he had to be careful when walking across them. He took about
five steps across the coiled hoses and saw that this path to his worksite was
blocked by about 200 fuel tanks. George then turned around to retreat back to
the platform crane beam and look for another way to his worksite. His foot
caught on a hose, knocking him off balance, and as he fell he twisted his ankle,
fracturing it. There were no witnesses to the accident.
In April 2009, George sued Chevron and Nabors in Texas state court. In
June 2009, Nabors filed a notice of removal in the Southern District of Texas,
asserting jurisdiction under 28 U.S.C. § 1331 based on the Outer Continental
Shelf Land Act (“OCSLA”), 43 U.S.C. §1301. Nabors and Chevron each filed a
motion for summary judgment, arguing that they owed George no duty under
Louisiana law.1 George did not oppose Chevron’s motion. The district court
granted Chevron’s and Nabors’s motions, and then denied George’s motion to
reconsider. George timely appealed the district court’s grant of summary
judgment to Nabors—but not to Chevron—arguing that the district court erred
in ruling that the coiled hoses were open and obvious and therefore did not, as
a matter of law, constitute an unreasonably dangerous condition
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Int’l Fid. Ins. Co. v. Sweet Little Mex.
Corp., 665 F.3d 671, 679 (5th Cir. 2011). Summary judgment is appropriate if
the movant shows that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P.
1
The parties agree that Louisiana law governs this case because it arises under 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 ex rel. Fruge
v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir. 2003).
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56(a)). In reviewing the record, all facts and inferences are construed in the
light most favorable to the non-moving party. Id.
III. DISCUSSION
“Under Louisiana jurisprudence generally, a contractor owes an obligation
toward third persons to refrain from creating a hazardous condition.” Lafont v.
Chevron, U.S.A., Inc., 593 So. 2d 416, 420 (La. Ct. App. 1991). “[A]t the very
least, [contractors] owe[ third parties] the duty to refrain from gross, willful or
wanton negligence, and at most the duty to refrain from creating an
unreasonable risk of harm or a hazardous condition.” Id. Louisiana courts have
adopted a four-part test to determine whether a condition is hazardous or
unreasonably dangerous: “(1) the utility of the complained-of condition; (2) the
likelihood and magnitude of harm, which includes the obviousness and
apparentness of the condition; (3) the cost of preventing the harm; and (4) the
nature of the plaintiff’s activities in terms of its social utility, or whether it is
dangerous by nature.” Dauzat v. Curnest Guillot Logging Inc., 995 So. 2d 1184,
1186–87 (La. 2008).
Focusing on the second part of that test, the Supreme Court of Louisiana
has stated that “[i]f the facts of a particular case show that the complained-of
condition should be obvious to all, the condition may not be unreasonably
dangerous, and the defendant may owe no duty to the plaintiff.” Id. at 1186. “A
landowner is not liable for an injury which results from a condition which should
have been observed by the individual in the exercise of reasonable care, or which
was as obvious to a visitor as it was to the landowner.”2 Id. “The question of
whether a duty exists is a question of law.” Walker v. La. Dep’t of Transp. &
Dev., 61 So. 3d 699, 705 (La. Ct. App. 2011).
2
Courts analogize the duty of an offshore platform occupier to that of a land owner or
occupier. See, e.g., Ellis v. Chevron U.S.A. Inc., 650 F.2d 94, 97–98 (5th Cir. 1981).
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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.”).
George argues that summary judgment on the issue of whether a condition
is open and obvious is only appropriate where the evidence demonstrates
conclusively that the risk of harm was not only obvious, but was also easily
avoidable. See Butzman v. La. Power & Light Co., 694 So. 2d 514 (La. Ct. App.
1997).3 Because there was no alternative route to his worksite, George argues,
he could not have avoided walking across the coiled hoses. Like the district
court, we are unconvinced that the existence of an alternative route affects the
unreasonably dangerous analysis. 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
3
George also argues that Section 343A of the Restatement (Second) of Torts—which
Louisiana courts have not adopted—supports his argument that to be considered not
unreasonably dangerous as a matter of law, a condition must be easily avoidable in addition
to open and obvious. We are not persuaded by this argument because Section 343A, along
with its comments and examples, involves “anticipation” of harm where public land or a public
utility is involved, and therefore does not speak directly to the facts of this case.
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George observed the coiled hoses and appreciated the danger they posed. We
therefore agree with the district court that the coiled hoses 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.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s order granting
summary judgment to Nabors.
AFFIRMED.
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