Graham v. Amoco Oil Co.

United States Court of Appeals,

Fifth Circuit.

No. 93-3190.

Leanna M. GRAHAM, wife of David Graham, individually and on
behalf of minor child, Kayla J. Graham and as curator of David
Graham, Plaintiffs-Appellants,

v.

AMOCO OIL COMPANY, Defendant-Appellee.

May 26, 1994.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before JOHNSON, GARWOOD, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this personal injury case, we are primarily concerned with

the questions of duty and causation. Here, an oil rig worker

sustained an injury while working for his employer on the

employer's oil drilling rig. At the time of the injury, the

employer was operating as an independent contractor for the oil

company that owned the platform on which the rig was located. The

oil rig worker's wife and child sued the oil company for

negligently causing the injury. The district court granted summary

judgment to the oil company on the basis that the oil company was

not responsible for the negligent acts of the independent

contractor and committed no negligent acts itself that caused the

injury. Finding no reversible error, we affirm.

I

Amoco Oil Company ("Amoco") owned an offshore drilling

platform affixed to the Outer Continental Shelf of the Gulf of

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Mexico off the State of Louisiana. Amoco hired Dual Drilling

Company ("Dual") to drill several wells from the platform. On

December 2, 1990, David Graham, a Dual employee, was working on

Dual Rig 23 that was located on Amoco's platform. The rig was

rated as being capable of drilling wells to 20,000 feet. Amoco

ordered and delivered a load of 14,100 feet of 113/4O casing pipe

to the Dual rig for the drilling of the well listed as A-3.

Pursuant to the contract, a team of Dual employees, supervised by

Denis Riley, another Dual employee, unloaded the casing onto the

rig. The Dual rig had two cranes affixed to it, and Riley operated

one of these cranes as it picked up two lengths of casing from the

delivery ship and placed them onto pipe racks onboard the rig.

Because of the volume of casing being unloaded, casing and drill

pipe covered the floor of the rig. Graham was standing on some of

this drill pipe as he helped guide two pieces of casing that

Riley's crane was loading onto the pipe racks. Because Graham was

standing on the drill pipe, his head was a few feet higher than

normal. When the casing swung toward him, Graham ducked, but he

was too late as the casing caught his head against the second crane

and crushed it leaving Graham in a comatose state.

II

Graham's wife and child brought this action against Amoco on

behalf of Graham for his injuries and on their own behalves for

their loss of consortium. The plaintiffs alleged, inter alia, that

Amoco was negligent in two ways: first, it delivered too much

casing to the Dual rig at one time; and second, its "company man"

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failed to stop the unsafe unloading operation. The district court

granted summary judgment to Amoco on the grounds that: (1) Amoco

was immune from liability for the acts of Dual as an independent

contractor; and (2) Amoco's ordering of the casing was not the

legal cause of Graham's injury.

III

We review the summary judgment de novo using the same

standards that guided the district court. DFW Metro Line Servs. v.

Southwestern Bell Tel. Co., 988 F.2d 601, 603-04 (5th Cir.), cert.

denied, --- U.S. ----, 114 S.Ct. 183, 126 L.Ed.2d 142 (1993).

Accordingly, summary judgment is appropriate when, after viewing

the facts in the light most favorable to the nonmovants, no

material issue of fact exists, and the movant is entitled to

judgment as a matter of law. Id. at 604.

Louisiana law provides the general rule that a principal is

not liable for the negligent acts of an independent contractor

acting pursuant to the contract. Bartholomew v. CNG Producing Co.,

832 F.2d 326, 329 (5th Cir.1987); Hawkins v. Evans Cooperage Co.,

766 F.2d 904, 906 (5th Cir.1985). This general rule has two

exceptions under which a principal may be liable when: (1) the

suit arises out of the ultrahazardous activities of its independent

contractor; or (2) the principal retains operational control over

the independent contractor's acts or expressly or impliedly

authorizes those acts. Bartholomew, 832 F.2d at 329; Westridge v.

Poydras Properties, 598 So.2d 586, 590 (La.Ct.App.), writ denied,

605 So.2d 1099 (La.1992). Further, even though the general rule

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shields a principal from the acts of its independent contractor

that do not fall within the above exceptions, the principal remains

liable for its own acts of negligence. Ellis v. Chevron U.S.A.

Inc., 650 F.2d 94, 97 (5th Cir.1981); Smith v. Indiana Lumbermens

Mutual Ins. Co., 175 So.2d 414, 416 (La.Ct.App.), writ denied, 247

La. 1089, 176 So.2d 146 (1965).

In the instant case, we must determine whether Amoco is liable

for the acts of Dual under the second exception to the general

rule, that is, whether Amoco retained control over, or expressly or

impliedly authorized, Dual's unloading activities that resulted in

Graham's injury. Further, we must determine if Amoco is liable

under principles of negligence for its own independent acts of

ordering and delivering the shipment of casing to Dual's rig.

IV

First, the plaintiffs argue that Amoco is liable for the

unloading activities of Dual under the second exception to the

general rule of immunity for the acts of an independent contractor.

Specifically, they argue that Amoco is liable for Graham's injury

because it's "company man," Dudley Blanchard, authorized the

payment for the extra men necessary to unload the large order of

casing, and he inspected the color codes on the casing. Further,

the plaintiffs assert that Blanchard was present on the Dual rig

during the unloading, saw the unsafe conditions created by the

excess amounts of casing stacked on the rig—including the danger

that a worker would be pinned against a crane while standing on a

stack of drill pipe that covered the floor of the rig—and did not

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stop the operation.

We are faced, however, with Amoco's contract with Dual that

provided:

Contractor [i.e., Dual,] shall be solely responsible for the
supervision of the following operations of the Rig as
appropriate: towing, rigging up, positioning on drilling
locations, rigging down, loading and unloading operations on
and off the Rig, and including also such operations onboard
said Rig as may be necessary or desirable for the safety of
said Rig.

(Emphases added).

The contract also provided that although Amoco retained the right

to inspect the work site as the project progressed, it was

"interested only in the results obtained."

In Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 550-51

(5th Cir.1987), we held that a principal did not retain control

over the step-by-step operations of a drilling rig through the

presence of a "company man" when the contract provided that the

independent contractor was responsible for the performance of all

the work, and the principal was interested solely in the results

obtained. As we have noted above, the contract here expressly

provides that Dual has sole responsibility for unloading and safety

activities. Amoco's "company man" only approved the payment of

extra workers to handle the unloading of the casing and inspected

the color codes on the pipe. This minimal degree of involvement

does not amount to a retention of operational control over the

unloading activities. See Williams v. Gervais F. Favrot Co., 499

So.2d 623, 626 (La.Ct.App.1986) (holding that periodic inspections

by owner did not amount to operational control of construction site

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managed by independent contractor), writ denied, 503 So.2d 19

(La.1987).

It is true, as Graham points out, that in Bartholomew, 832

F.2d at 329-30, we held a principal liable for the acts of an

independent contractor. There, however, its representative

expressly ordered the independent contractor to engage in an unsafe

work practice that eventually caused an injury to the plaintiff.

There was no such express authorization in the instant case because

Amoco's "company man" did not order Dual's employees to engage or

not to engage in any unloading practice. Id. In any event, it is

certainly clear that Amoco did not expressly authorize any of

Dual's negligent unloading acts.

Nor do the facts here permit a conclusion that Amoco impliedly

authorized the condition that caused Graham's injury. In Williams,

499 So.2d at 626, for example, the court held that a principal did

not "impliedly or expressly authorize [the independent contractors]

to undertake the dangerous ... project which led to the death of

the [plaintiff's] husband ... [because] only the [independent

contractors] participated in the decision to use [the negligent]

procedure." Further, in Davenport v. Amax Nickel, Inc., 569 So.2d

23, 28 (La.Ct.App.1990), writ denied, 572 So.2d 68 (La.1991), the

court held that neither the express or implied authorization

exception applied when the principal's personnel inspected the job

site and may have pointed out certain safety violations. In the

instant case, the "company man" did not participate in any

decision-making process concerning the manner in which the Dual

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team unloaded and stacked the casing. Nor did the "company man"

give any advice concerning safety violations. Instead, the

plaintiffs allege that Amoco's "company man" merely observed Dual's

employees performing the duties for which the governing contract

gave them the "sole" responsibility. Thus, we cannot say that

Amoco impliedly authorized the unsafe unloading procedures that

caused Graham's injury. We therefore hold as a matter of law that

Amoco was not liable for Dual's negligent unloading acts that

caused Graham's injury.

V

Second, the plaintiffs argue that Amoco is liable for its own

independent acts of negligence. Specifically, plaintiffs allege

that Amoco was negligent in creating an unsafe work place by

ordering the large load of casing to be delivered to the Dual rig

in one shipment without notification to Dual. See Frick v. Ensor,

560 So.2d 446, 446 (La.) (holding wrestling promoter liable for the

negligent injury of a spectator by a wrestler, who qualified as an

independent contractor, because the promoter breached its "duty to

... control the program in such a manner as not to create a

dangerous situation"), rev'g 557 So.2d 1022 (La.Ct.App.1990);

Ellis, 650 F.2d at 97 (holding principal liable for injury to

independent contractor's employee caused by principal's own

negligence). Further, plaintiffs allege that Amoco was negligent

when its "company man" saw that Dual's stacking and unloading

procedures violated Amoco's safety manual and failed to correct

those procedures.

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 A

The plaintiffs' argument principally concerns the duty, if

any, that Amoco owed to Graham. Duty is a question of law. Harris

v. Pizza Hut of Louisiana, Inc. 455 So.2d 1364, 1371 (La.1984). In

Crane v. Exxon Corp., 613 So.2d 214, 221 & n. 7 (La.Ct.App.1992),

the Louisiana court defined the principal's duty by reference to

its contract with the independent contractor. The Louisiana court

held that, under the contract, the principal had no duty to provide

a safe work place to the independent contractor's employees. Id.

Further, in Kent v. Gulf States Utils. Co., 418 So.2d 493, 500

(La.1982), where a worker was injured when a pole he was using

touched power lines, the Louisiana Supreme Court held that even

though the principal's representative "arguably could have

prevented the accident by interjecting himself [into the unsafe

situation], ... he had no such duty to [the plaintiff], and is not

liable for failing to do so." See Ainsworth, 829 F.2d at 551

("Louisiana law will not support the imposition of liability upon

[the principal] for failure to intercede in [the independent

contractor's] decision to work without lights."). In the instant

case, Amoco's duties were expressly delineated in its contract with

Dual. Amoco had the duty to deliver suitable casing, but did not

have any duty whatsoever with respect to the working conditions or

procedures of the Dual employee—Graham—who was injured as he was

supervised by another Dual employee—Riley—while each were

performing activities that the contract expressly delegated to

Dual.

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 Nor did Amoco assume an ex-contract duty to provide a safe

work place. In Davenport, 569 So.2d at 28, the Louisiana court

rejected the plaintiff's contention that the principal's imposition

of a work deadline not provided for in the contract also imposed a

duty on the principal to provide a safe work place to accomplish

the meeting of that deadline. The contract provided that the

independent contractor—not the principal—had the duty to follow

safe procedures. Id. Similarly, in the instant case, we reject

the plaintiffs' contention that ordering and delivering the casing

imposed an ex-contract duty on Amoco to provide a safe work place

to unload that casing when the contract specifically places all

loading and unloading duties upon Dual—not Amoco.1

The plaintiffs further argue that Amoco's internal safety

manual indicates that certain practices Dual followed were unsafe,

i.e., stacking an excessive amount of casing and stacking drill

pipe in the walkways, and that the "company man" had the authority

and obligation to stop the operation and correct the overstacking

problem. The contract, however, expressly states that the contract

itself is the sole governing agreement. Furthermore, the contract

expressly provides that prior and future contracts, agreements, or

work orders will not alter or amend its terms. The contract never

adopted Amoco's safety manual; instead, the contract provides that

1
The cases cited by the plaintiffs do not change this
result. In Frick, 557 So.2d at 1023, the contract, unlike
Amoco's contract, did not delineate which party was responsible
for working conditions and safety. In Ellis, 650 F.2d at 97, the
principal negligently left a piece of timber on the work site.
In the instant case, only Dual—and not Amoco—placed the drill
pipe the rig that allegedly contributed to Graham's injury.

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Dual shall "observe safe industry working practices." Thus, the

express words of the governing contract obviate the plaintiffs'

attempt to impose extracontractual standards on the parties. See

Crane, 613 So.2d at 221.

Finally, Amoco's "company man" did not affirmatively assume

any duty to provide Dual's employees with a safe work place simply

by observing their unsafe work habits. In Crane, 613 So.2d at 221,

the principal's representative voluntarily and affirmatively went

beyond the contract and reprimanded the independent contractor for

various safety violations. The court held that the principal had

assumed the duty of monitoring the safety of the job site and then

breached that duty by failing to have an unsafe condition

corrected. Id. In the instant case, Amoco's "company man" did not

voluntarily point out safety violations or reprimand Dual's

employees for such alleged violations. Accordingly, Amoco cannot

be said to have vicariously assumed the duty of providing Graham

with a safe work place.

Amoco's only duty was to provide a sufficient amount of casing

of suitable quality to case the A-3 well. Amoco's delivery of

14,100 feet of 113/4O casing in one shipment to Dual's rig that was

rated with a capability of drilling 20,000 feet did not breach this

duty.

B

Even assuming arguendo that Amoco had the duty to deliver

less casing than it did, and/or the duty to notify Dual of the

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exact amount of casing to be delivered,2 the plaintiffs' claim

still fails because of the lack of legal causation. The Louisiana

Supreme Court has held:

Negligence is only actionable where it is both a cause in fact
of the injury and a legal cause of the injury. Legal cause
requires a proximate relation between the actions of a
defendant and the harm which occurs and such relation must be
substantial in character.

Sinitiere v. Lavergne, 391 So.2d 821, 825 (La.1980) (emphases

added).

In Sutton v. Duplessis, 584 So.2d 362 (La.Ct.App.1991), the

Louisiana Court of Appeals explained its view of legal causation in

context of a personal injury suit. As opposed to factual, or "but

for," causation, the Sutton Court defined legal, or "proximate,"

cause as "any cause which, in natural and continuous sequence,

unbroken by any efficient, intervening cause, produces the result

complained of and without which the result would not have

occurred." Id., at 365 (citations omitted). Further, the Sutton

Court stated that when an accident results from two negligent acts,

"one more remote and one an intervening cause, the presence of the

intervening cause prevents a finding of liability on the one

responsible for the more remote cause." Id. at 365-66 (citations

omitted). The Sutton Court applied this concept of legal causation

in assessing the comparative negligence of a woman whose son ran

2
Amoco submitted a "Form 46" that states the amount of pipe
to be used on well A-3 to the district court. Although the form
is dated two months before the accident and would have put Dual
on notice as to how much pipe was being ordered, Dual asserts
that it never received the form and, for summary judgment
purposes, we accept Dual's version of the facts. See DFW, 988
F.2d at 604.

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into the street and was struck by a car after she failed to pick

him up as classes ended. Id. at 364. Although there was factual

causation, i.e., the child would not have been injured if his

mother had picked him up from school on time, the court held that

the mother's negligence did not constitute the legal cause of her

son's injury. This was because the school board's negligence

superseded any negligence on the part of the child's mother for not

picking him up on time. Id. 366. The school board violated its

policy—and duty—of dealing with the foreseeable possibility that

parents would show up late to pick up their children by not keeping

a child inside the school building until his mother arrived. Id.

Similarly, in the instant case, although we may assume there

was factual causation, i.e., Graham would not have been injured by

the casing if Amoco had never delivered it, such delivery was not

the legal cause of Graham's injury. We reach this conclusion

because Dual's negligence in unloading the casing and supervising

Graham superseded any arguable negligence on the part of Amoco.

Further, the delivery in and of itself is too remote to

constitute the legal cause of Graham's injury. The plaintiffs have

been unable to point us to a case in which the order and delivery

of goods or materials was held to be the proximate cause of an

injury that occurred during unloading of those good or materials.

In United States Steel Corp. v. McCraney, 257 F.2d 457, 462 (5th

Cir.1958), we dealt with a claim involving Mississippi law, and

held:

Under settled law, the loader of a shipment has the right to
assume that the consignee or those who are in charge of the

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 unloading for him will take proper precautions to avoid
injury, and where, as here, it appears that plaintiff's injury
was not due at all to negligence in the loading but solely to
the failure of plaintiff's employer and of the plaintiff to
take proper precautions in unloading, it must be held, as a
matter of law, that defendant was not negligent.

(Emphases added).

We find this logic compelling in the instant case. Amoco merely

ordered and delivered the casing. Amoco could reasonably assume

that Dual would properly fulfill the duties to which Dual

voluntarily agreed to be contractually bound. In fact, Dual made

all decisions after the delivery, including whether to unload the

casing, how much of the casing to unload, how and where to stack

the casing and drill pipe on its rig, and how to supervise its

employees—including Graham. Thus, we hold that the ordering and

delivery of the casing was not substantially related to Graham's

injury and, thus, did not constitute the cause of that injury. See

Sinitiere, 391 So.2d at 825.

VI

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

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