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
1
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
5
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.
7
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.
8
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.
9
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
12
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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