UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-3382
SHARON S. DUPRE, Widow of Russell P.
Dupre, individually and as natural
tutrix of her minor child, Beau
Nicholas Dupre,
Plaintiff-Appellant,
versus
CHEVRON U.S.A., INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(April 25, 1994)
Before POLITZ, Chief Judge, JONES, Circuit Judge, and FULLAM,*
District Judge.
POLITZ, Chief Judge:
Sharon S. Dupre, individually and as natural tutrix of the
minor Beau Nicholas Dupre, appeals an adverse summary judgment
dismissing their claims against Chevron U.S.A., Inc. for damages
resulting from the death of Russell P. Dupre, their husband and
*
District Judge for the Eastern District of Pennsylvania,
sitting by designation.
father, respectively. For the reasons assigned, we vacate and
remand.
Background
Russell Dupre, a driller employed by Sundowner Offshore
Services, Inc., was killed while working on Chevron's outer
continental shelf platform located off the coast of Louisiana.
Sundowner contracted with Chevron to install a drilling rig on
Chevron's platform and to perform workover operations on its wells.
Chevron reserved and exercised its right to approve Sundowner's rig
installation. The platform revision resulting from installation of
Sundowner's rig could only be accomplished with the specific
permission of Chevron. This permission was given.
Under the Chevron-approved plan Sundowner placed its rig on
the outer edge of the platform with a portion extending beyond the
brink of the platform and over the sea. The Sundowner rig stood
approximately 21 feet above the drilling deck of Chevron's platform
and it was composed of several component parts. A traction motor
blower sat atop the traction motor which was housed on a drilling
skid located well above the rig rotary table and platform floor.
Guardrails protected the perimeter of Chevron's platform. The
addition of Sundowner's rig, which added a workspace above the
rails and over the edge of the platform, markedly changed the
dynamics of this area of Chevron's platform. No guardrails or
other protective device were built around the outer edges of the
elevated Sundowner rig. None were placed around the traction motor
at the top of the rig. Access to the traction motor, which
2
required regular maintenance and inspection, was hampered by its
limited work area and the outboard location of its service port.
Chevron's safety inspectors checked the rig for regulatory and
safety compliance but did not comment on any dangers involved in
the rig configuration.
One month after installation of the rig, Russell Dupre and
Johnny Walker, a fellow Sundowner employee, were instructed to
climb to the top of the rig, remove the blower motor, and inspect
the inside of the traction motor. The traction motor had begun
smoking and operations could not resume until it was repaired.
Dupre and Walker unbolted the blower motor but could not pry it
loose. They then rocked the motor back and forth in order to
loosen it. The motor suddenly broke free and fell toward the
outboard side of the rig. Dupre lost his balance and was pulled or
fell off the structure, falling to his death in the sea.
Sharon Dupre, individually and in her representative capacity,
filed suit against Chevron alleging negligence and strict
liability.1 The district court granted summary judgment to
Chevron, considering only vicarious liability principles. Sharon
Dupre timely appeals, focusing on her negligence claim under
Louisiana Civil Code article 2315.
Analysis
We review grants of summary judgment de novo, applying the
1
Dupre also sued I.M.I. Engineering Co., the manufacturer of
the rig, who was released on summary judgment. That judgment has
not been appealed.
3
same standard as that applied by the district court.2 Summary
judgment is appropriate only when there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law.3 Applying Louisiana law4 we find summary judgment
inappropriate. Sharon Dupre filed a claim against Chevron alleging
that it negligently and directly caused her husband's death. She
did not merely assert a vicarious liability claim; the district
court erred in so treating her complaint.5 Concluding that Chevron
owed a duty to Russell Dupre under Louisiana Civil Code article
2315, we must vacate and remand for further proceedings.6
Article 2315 provides that "[e]very act whatever of man that
causes damage to another obliges him by whose fault it happened to
repair it."7 In determining "fault," Louisiana courts apply a
duty-risk analysis composed of three parts:
2
Wilkerson v. Columbus Separate School Dist., 985 F.2d 815
(5th Cir. 1993).
3
Id.
4
The Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et
seq., extends the law of the adjacent state, which becomes the law
of the United States, to actions arising from injuries on outer
continental shelf platforms.
5
See Seneca v. Phillips Petroleum Co., 963 F.2d 762 (5th Cir.
1992) (distinguishing claims for direct liability from claims based
on vicarious liability).
6
The dissent suggests that we are here deciding the issue of
liability. We do not. Our focus is on Chevron's duty separate and
apart from vicarious liability. In that regard we note that
vicarious liability was the issue before the court a` quo and was
the issue in many of the cases cited in the dissent. The factual
determination of liability remains for the trier-of-fact.
7
La. Civ. Code art. 2315.
4
(1) Was the defendant's conduct a cause-in-fact of
the harm?
(2) Was a duty imposed on the defendant by a
general rule of law to protect this plaintiff
from this type of harm arising in this manner?
(3) Was that duty breached?
In Louisiana the existence of a duty and its scope are questions of
law.8 Duty varies depending on the facts, circumstances, and
context of each case9 and is limited by the particular risk, harm,
and plaintiff involved.10 On the facts presented in this case, we
find that a duty existed.
As a general rule, "the owner or operator of a facility has
the duty of exercising reasonable care for the safety of persons on
his premises and the duty of not exposing such persons to
unreasonable risks of injury or harm."11 This duty extends to
employees of independent contractors, for whose benefit the owner
must take reasonable steps to ensure a safe working environment.12
Chevron owed a duty to Russell Dupre and other workers aboard its
8
Mundy v. Dep't of Health and Human Resources, 620 So.2d 811
(La. 1993); see also Ellison v. Conoco, Inc., 950 F.2d 1196 (5th
Cir. 1992), cert. denied, 113 S.Ct. 3003 (1993).
9
Roberts v. Benoit, 605 So.2d 1032 (La. 1992); see also
Ellison; Owen v. Kerr-McGee Corp., 698 F.2d 236 (5th Cir. 1983);
Bourg v. Texaco Oil Co., Inc., 578 F.2d 1117 (5th Cir. 1978).
10
Roberts; see also Ellison.
11
Mundy, 620 So.2d at 813; see also Owen, 698 F.2d at 239.
12
Boudreaux v. Exxon Co., U.S.A., 451 So.2d 85 (La.App.), writ
denied, 458 So.2d 119 (La. 1984); Stoute v. Mobil Oil Corp., 297
So.2d 276 (La.App.), writ denied, 300 So.2d 839 (La. 1974); see
also Bourg.
5
platform to ensure that the platform was reasonably safe. As
demonstrated by the plethora of regulations,13 work aboard an
offshore platform is precarious at best. Slipping and losing one's
balance, a not unusual occurrence on oil-producing rigs, may become
life threatening when the proper safety mechanisms are not in
place. A broken ramp or a missing rail may become the cause of
severe injury or death. Such safety features are required for the
precise purpose of preventing undue consequences of falls which may
end abruptly in the sea hundreds of feet below.
Sharon Dupre asserts that Chevron neglected certain
regulations and that this was the cause of her husband's death.
33 C.F.R. § 142.4 provides that holders of leases on the outer
continental shelf "shall ensure that all places of employment . . .
are maintained in compliance with workplace safety and health
regulations . . . and, in addition, free from recognized hazards."14
Recognized hazards include conditions "[g]enerally known among
persons in the affected industry as causing or likely to cause
death or serious physical harm to persons exposed" and conditions
"[r]outinely controlled in the affected industry."15 Section
143.110 controls the placement of guardrails, explaining that
"[e]xcept for . . . areas not normally occupied, the unprotected
13
Although the violation of these regulations does not
constitute negligence per se, they may be relevant in the
establishment of the standard of care owed by a particular
defendant to a particular plaintiff. Romero v. Mobil Exploration
and Producing North America, Inc., 939 F.2d 307 (5th Cir. 1991).
14
33 C.F.R. § 142.4(a).
15
33 C.F.R. § 142.4(c)(1)(2).
6
perimeter of all floor or deck areas and openings shall be rimmed
with guards and rails or wire mesh fence."16 The American Petroleum
Institute further requires that "[p]rior to commencing rig-up
operations, the planned arrangement of all equipment to be placed
on the location should be reviewed to eliminate potentially
hazardous conditions."17
The summary judgment record contains expert testimony to the
effect that the set-up and placement of the Sundowner rig on
Chevron's platform created a recognized hazard. According to this
testimony the rig's placement on the edge of the platform, coupled
with its insufficient work area and lack of guardrails around the
traction motor, created a danger to the workers required to service
the motor. Unlike the typical vicarious liability case in which
the independent contractor created the danger,18 in this case
Chevron specifically authorized any hazardous situation created
when it expressly approved the plan submitted by Sundowner for the
installation and set-up of its rig.19 Upon completion, as noted,
this addition changed the dynamics of the platform workbase. With
16
33 C.F.R. § 143.110(a).
17
American Petroleum Institute: Recommended Practice for
Occupational Safety for Oil and Gas Well Drilling and Servicing
Operations (RP 54) 5.3.1.
18
See Verrett v. Louisiana World Exposition, Inc., 503 So.2d
203 (La.App.), writ denied, 506 So.2d 1229 (La. 1987); see also
Robertson v. Arco Oil & Gas Co., 948 F.2d 132 (5th Cir. 1991);
Zepherin v. Conoco Oil Co., 884 F.2d 212 (5th Cir. 1989).
19
See, e.g., Ham v. Pennzoil Co., 869 F.2d 840 (5th Cir. 1989),
which suggests that knowledge or the express or implied approval of
a dangerous situation implicates liability.
7
Chevron's approval, certain of the rails around the platform became
useless, their function of preventing undue consequences of
accidental falls neutered, as the "normally occupied areas" of the
platform in critical part became elevated beyond their reach. The
platform, with its appropriate safety devices, was thus
reconfigured into a new model, one which called for new measures to
ensure safety in the newly created normally occupied areas. Such
additional safety features, like those on the "old" platform, would
have as their purpose the prevention of accidental injury to
workers such as Russell Dupre -- specifically, to prevent employees
from falling overboard with resulting serious injury or death.
We thus conclude that Chevron had a duty to take reasonable
steps to make and keep its platform safe for workers thereon. This
duty included areas of its platform altered or modified with its
knowledge and approval. Chevron had the duty of assuring that any
modifications or additions it allowed to its platform would not
contain recognizable hazards and that all normally occupied areas,
including any newly created normally occupied areas, would continue
to be adequately protected.
We cannot say as a matter of law that Chevron did not breach
this duty, therefore summary judgment in favor of Chevron was
inappropriate. The question is a factual one; further proceedings
are required.
The judgment of the district court is VACATED and the matter
is REMANDED for further proceedings consistent herewith.
8
Edith H. Jones, Circuit Judge, dissenting:
Because a proper application of Louisiana law indicates
that Chevron was entitled to the summary judgment granted by the
district court, I must respectfully dissent.
Chevron hired an experienced independent contractor to
perform drilling work on its platform that required expertise that
Chevron itself did not possess. The entire rig that was involved
in Mr. Dupre's unfortunate accident belonged to, was designed by,
and was operated by Sundowner. Mrs. Dupre certainly could look to
Sundowner, her husband's employer, for compensation. I disagree,
however, that Chevron owed Mr. Dupre a duty under Louisiana law
under the facts of this case.
The majority argues from first principles of Louisiana
tort law, but in fact, I have found no Louisiana case that has held
a principal liable for the injury of an independent contractor's
employee on the basis of the principal's duty to maintain a
reasonably safe workplace. By contrast, a long line of summary
judgment cases founded on Louisiana law supports the decision of
the district court here. For instance, in Boutwell v. Chevron
U.S.A., Inc., 864 F.2d 406 (5th Cir. 1989), which arose from an
offshore platform injury, the defendant's "company man" was aware
that the independent contractor had put holes in the deck of the
platform. The court held, however, that Chevron was not negligent
when an independent contractor's employee fell in one of the holes
because Chevron retained no rights of supervision that limited the
independent contractor's ability to perform the work in its own
way. Similarly, in Grammer v. Patterson Servs., Inc., 860 F.2d 639
(5th Cir. 1988), cert. denied, 491 U.S. 906 (1989), the principal
required its independent contractor to change its test to ensure a
higher pass rate for acceptable pipe fixtures. Nevertheless, it
was held that the defendant did not exercise sufficient operational
control over the independent contractor to be held liable for
negligence because its actions exhibited no control over the manner
in which the work was to be performed. Particularly analogous is
Ainsworth v. Shell Offshore, Inc., 829 F.2d 548 (5th Cir. 1987),
cert. denied, 485 U.S. 1034 (1988), in which the Shell "company
man" on the offshore platform had knowledge that its subcontractor
was working its crew without lights at night; this court held that
Shell had no duty to intercede in its subcontractor's decision to
work without lights. See also Hawkins v. Evans Cooperage Co.,
Inc., 766 F.2d 904 (5th Cir. 1985) (principal not liable because it
did not exercise control over the independent contractor and had no
duty to discover and remedy hazards created by the acts of the
independent contractor).
The majority has accepted the plaintiff's attempt to
distinguish these uniformly adverse precedents by asserting that
Chevron is liable for its own negligence. The record does not,
however, support this position. Contrary to the implication of the
majority opinion, nothing in the record before us suggests that
Chevron reserved and exercised a right to approve -- on safety
grounds -- the installation of the Sundowner V. There is no reason
to suppose that Chevron's approval of Sundowner V was related to
the safety of the rig, as the rig was entirely composed of
10
Sundowner equipment. The decision whether to place guardrails
around the outer edges of the elevated Sundowner rig and the
traction motor atop it were the responsibility of Sundowner;
Chevron had nothing to do with the design and use of Sundowner's
own equipment. Moreover, the fact that the Sundowner V extended
beyond the outer edges of the platform was, as indicated in the
affidavit of the plaintiff's own expert, common offshore practice.
It cannot be overemphasized that Chevron's mere approval of
Sundowner's installation drawings cannot create a fact issue on
Chevron's possible negligence under our past authorities. If that
is what the majority holds, their ruling is inconsistent with
Boutwell and Ainsworth, where the acquiescence of the principal in
arguably dangerous practices involving the principal's platform did
not create a duty.
Moreover, the majority cannot bootstrap their finding of
a duty from the fact that Chevron provided safety inspectors who
occasionally checked Sundowner's rig for safety compliance.
Louisiana law preempts such reasoning. See LeJeune v. Shell Oil
Co., 950 F.2d 267 (5th Cir. 1992); Duplantis v. Shell Offshore,
Inc., 948 F.2d 187 (5th Cir. 1991). Chevron's inspection
checklist -- which was signed by both a Chevron and a Sundowner
representative at each inspection -- explicitly provided:
It is understood that compliance with all applicable
legal requirements and the safe conduct of all drilling
operations are and remain the responsibility of any
contractor executing a drilling contract or operation for
Chevron. Chevron's maintenance and use of the above and
foregoing checklist procedure shall in no manner
whatsoever modify, waive, or alleviate the duties and
obligations of contractor or modify or enhance Chevron's
11
duties or responsibilities with respect thereto whether
under contract or by law or otherwise.
See, e.g., LeJeune, supra (the relationship between the principal
and independent contractor is determined in large measure by the
terms of the contract even though Shell had a manual for
independent contractor safety and examined the area to be worked on
to determine whether it was safe); Boutwell, supra (the language of
the contract between the principal and its independent contractor
dictates and is primarily controlling when determining the
responsibilities of the parties).
It is also erroneous to cite various federal regulations
in support of a duty running from Chevron to Mr. Dupre to provide
a workplace free from recognized hazards. The majority focus on
testimony to the effect that the set-up and placement of the
Sundowner rig on Chevron's platform created a "recognized hazard,"
a term used in some of the regulations. However, this circuit has
rejected the argument that an MMS regulation can create a duty upon
a platform owner. See Romero v. Mobil Exploration and Producing N.
Am., Inc., 939 F.2d 307, 309-10 (5th Cir. 1991) (concluding that no
cause of action arises merely from the breach of an MMS regulation
because the regulations were not created solely to provide
safeguards or precautions for the safety of others). A private
citizen is not afforded a cause of action because of a violation of
an MMS provision. Instead, private citizens are merely empowered
to commence civil actions to compel compliance with the provisions.
See id. at 309-10 n.5.
12
Under Louisiana law, Sundowner -- not Chevron -- had the
primary responsibility of providing its employees with a safe place
to work, including safe equipment upon which to work and safe
methods by which to work. See Kent v. Gulf States Utils. Co., 418
So.2d 493, 500 (La. 1982). Thus, even if Chevron could possibly
have prevented this freak accident by employing additional safety
measures, Chevron did not have a duty to Sundowner's employees who
had to work on what turned out to be Sundowner's unsafe equipment.
See, e.g., Ainsworth, supra. Chevron cannot be held liable when
Chevron did not affirmatively create the hazardous situation by
requiring Sundowner to use dangerous equipment or methods. See
Kent, supra.
Those are the lessons of previous cases based on
Louisiana law. If the majority's artful reconstruction of duties
between principal and independent contractor's employees is
adopted, however, those authorities become meaningless. One can
hardly distinguish from this case a case in which a Chevron
employee observed oil spilled on the decks or scaffolding hastily
erected by the independent contractor. If Chevron allowed work to
continue, would it not run afoul of the newly defined duty to
provide a reasonably safe workplace? Such a result would fly in
the face of the above-cited authorities.
To the extent the majority's holding is inconsistent with
our previous decisions and with Louisiana tort law, it has little
precedential force. I must respectfully dissent.
13