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Bass v. Superior Energy Services, Inc.

United States District Court, E.D. Louisiana

February 3, 2015

JOSHUA BASS,
v.
SUPERIOR ENERGY SERVICES, INC. et al., Section:

ORDER AND REASONS

NANNETTE JOLIVETTE BROWN, District Judge.

In this litigation, Plaintiff Joshua Bass, who worked for Nabors Offshore Services ("Nabors, ") has filed suit against Superior Energy Services ("Superior, ") a co-contractor on a "gravel pack operation" that the two companies were performing for Energy XXI GOM, LLC ("Energy XXI")[1] on Energy XXI's "West Delta 73" offshore platform; Bass seeks damages for injuries he allegedly sustained while moving heavy equipment on that platform. Before the Court is Superior's "Motion for Summary Judgment, "[2] in which Superior seeks dismissal of Bass's negligence claims against it because, allegedly, as a matter of law, it owed no duty to Bass.[3] After considering the complaint, the pending motion, the memoranda in support, the memoranda in opposition, the record, and the applicable law, the Court will deny the pending motion.

I. Background

A. Factual Background

On June 28, 2012, Bass was working as a roustabout for Nabors, which had been hired as an independent contractor by Energy XXI, [4] on Energy XXI's"West Delta 73, " a fixed offshore platform on the Outer Continental Shelf off the coast of Louisiana.[5] Superior, another independent contractor hired by Energy XXI, [6] was present at the platform with Nabors that day to perform a "gravel pack" operation with Nabors.[7] During this process, Superior was to take a 75-foot jumper hose from its boat and attach it to the platform.[8] To move the hose into position on the platform, Nabors used its platform crane, which was operated by a Nabors employee.[9] After the hose had been partially moved so that one end sat on the floor of the platform's pipe rack area and the other end remained elevated, Bass, who was in the pipe rack area, attempted to move the hose by manually pulling on it.[10] The hose weighed over one thousand pounds, [11] and Bass allegedly injured his neck as he attempted to move the hose.[12]

B. Procedural Background

Bass filed a complaint in the Civil District Court for the Parish of Orleans on June 28, 2013, alleging that Superior's and Energy XXI's negligence caused his injuries.[13] Energy XXI filed a "Notice of Removal" in this Court on July 26, 2013. Energy XXI filed a "Motion for Summary Judgment" on June 16, 2014.[14] Bass did not oppose Energy XXI's "Motion for Summary Judgment, " and this Court granted the motion on July 22, 2014, [15] terminating Energy XXI as a party. Superior filed the pending "Motion for Summary Judgment" on June 20, 2014.[16] Bass filed an "Opposition to Superior Energy Service's Motion for Summary Judgment" on July 1, 2014.[17] On July 8, 2014, with leave of Court, Superior filed a reply in support of its motion.[18] On July 16, 2014, with leave of Court, Bass filed a "Supplemental Opposition to Superior Energy Services, Inc.'s Motion for Summary Judgment."[19] On August 7, 2014, with leave of Court, Superior filed a "Memorandum in Response to Plaintiff's Supplemental Memorandum."[20]

II. Parties' Arguments

A. Superior's "Motion for Summary Judgment" [21]

1. Duty

In support of its "Motion for Summary Judgment, " Superior contends that is entitled to summary judgment in its favor because, even assuming that a Superior supervisor told Bass to move the hose, as Bass alleges, Bass will be unable to show that Superior owed him a duty.[22] In support of its argument, Superior relies upon the unpublished Fifth Circuit Court of Appeals case of McCarroll v. Wood Group Management Services, Inc. [23] According to Superior, the Fifth Circuit in McCarroll affirmed the district court's grant of summary judgment in an analogous situation where the plaintiff claimed that the negligence of a co-contractor caused his injury.[24]

Superior asserts that the Fifth Circuit held in McCarroll that an independent contractor could not be held liable under the plaintiff's theory of "temporary supervision" because the independent contractor did not have "supervisory authority" over the plaintiff by virtue of the plaintiff's helping its employees.[25] Finding no supervisory authority, Superior contends, the Fifth Circuit concluded that the independent contractor owed no duty to the plaintiff.[26] Superior argues that Bass's "argument in this case that he was turned over' to another company to be supervised is even more tenuous than the situation in McCarroll, "[27] because Bass "admitted through his own testimony" that his immediate supervisor at all times remained Nabors employee Clyde Foreman.[28] Thus, Superior maintains, Bass "will be unable to establish that Superior was exercising supervisory authority' over him in this case."[29] Superior specifically quotes Foreman's deposition, in which Foreman stated that the "whole roustabout crew" (which included Bass) was participating in the gravel packing operation pursuant to Foreman's instructions, [30] and that Bass was under no obligation to follow instructions from Superior personnel.[31]

Superior also quotes the deposition of Earl Pradillo, another Nabors supervisor, stating that he did not tell Bass that Bass was to take his instructions from any Superior employee.[32] Pradillo, according to Superior, also testified that Bass was supposed to take instructions from Foreman and not any third-party companies.[33] Accordingly, Superior argues that Bass "will be unable to establish that Nabors granted Superior supervisory authority' over him, as is required under the applicable U.S. Fifth Circuit jurisprudence to establish the existence of a duty on the part of Superior to [Bass]."[34]

2. Breach

Superior further argues that it is entitled to summary judgment in its favor because, "even if it were assumed... that [Bass] could establish the existence of a duty..., [Bass] will be unable to establish that Superior breached any such duty."[35] According to Superior, Bass alleges that Superior was negligent because an unidentified Superior employee requested that Bass "move the hose back."[36] Superior contends that Bass had "admitted that the Superior employee did not request that [Bass] bend down and attempt to manually move an object that weighed over 1 ton while a crane was at all times readily available and attached to the hoses."[37] Thus, according to Superior, "[i]t is clear that, under these circumstances... [Bass] will be unable to establish any breach of duty by Superior."[38] Superior argues that this conclusion is "supported by the well-settled case law which holds that a principal is not responsible for the actions of an independent contractor when the principal only gives general instructions instead of detailed direction concerning the method of work."[39] Superior contends that Bass has alleged only that an unidentified Superior employee provided "at most, a general request when he allegedly asked that the hose be moved back."[40] Superior argues that Bass "was at all times free to move the hose in the manner he deemed appropriate, including by using the Nabors crane or by requesting help from his co-workers." Therefore, Superior asserts, it is not liable as a matter of law.[41]

B. Bass's Opposition

1. Duty

a. Supervisory Control

In opposition to the pending motion, Bass asserts that genuine issues of material fact preclude the award of summary judgment to Superior, because "the main issue is whether Superior's employees instructed Mr. Bass to perform the task in which he was injured, " and because Bass testified that "he was told by a Superior supervisor" to move the hose.[42] Bass asserts that although "Superior relies on the contract between Nabors and Energy [XXI]" in support of its assertion that Nabors "retained control over its employees, " the facts of the situation at issue here "undermine that reliance, " since "a Superior supervisor instructed Mr. Bass to perform the task which ultimately injured him, " thereby assuming supervisory control over him.[43]

Indeed, Bass asserts, "the Nabors supervisor on the platform on June 28, 2012 testified that neither he nor the rig manager were in charge of the jumper hose loading operation being performed, " and "Mr. Foreman did not give Mr. Bass any instructions that day."[44] Bass maintains that "[t]he only instructions given to [him] were those by the Superior supervisor who told him to move the end of the jumper hose."[45]

Bass argues that the present situation is distinguishable from McCarroll, cited by Superior, because the plaintiff in McCarroll "showed no evidence that the other independent contractor working on the platform was supervising him when he was injured, " whereas Bass's deposition here "is evidence of Superior's assumption of supervision over him."[46] Bass further asserts that McCarroll is distinguishable from the present case because Foreman testified that "he was not in a position on the rig or platform to give Mr. Bass instructions, " that he "gave Mr. Bass no instructions for completing the work on June 28, 2012, " and that "neither he nor the Nabors crane operator were in charge of the jumper hose placement operation."[47] Consequently, Bass argues, Superior owed a legal duty to him based on "its control over the jumper hose loading task in which Mr. Bass was injured."[48]

Bass further asserts that "there is question of fact as to whether Mr. Bass should have been assisting in the operation."[49] In support of this assertion, Bass cites the deposition of Ernest Villejoin, Superior's "second supervisor, " stating that platform personnel "only assisted" with jumper hose placement operations "on occasion."[50] Bass also cites Foreman's deposition in which Foreman stated that he would not allow any employee to remain on the platform if that employee was not involved with the jumper hose placement operation.[51] According to Bass, the fact that he was not taken off the floor as unnecessary to moving the hose, but received no instructions from Nabors supervisors, "begs the question of who was instructing [him] and supervising him."[52]

Bass further asserts that "there is clearly a genuine issue of material fact on whether Superior owed Mr. Bass a duty" because Bass's expert, Bob Borison, "opined that, by instructing Mr. Bass to move the end of the jumper hose, Superior took responsibility for supervising Mr. Bass and should have provided adequate instructions to [him] in performing the work."[53] Bass maintains that notwithstanding Superior's assertions that he "could have refused to perform the task, " he "was simply following acceptable industry standards by assisting a fellow working on the platform, " an assertion confirmed by Foreman in his deposition, in which he stated that "all of the personnel on the platform worked as a team.'"[54]

Additionally, Bass asserts, Foreman, Villejoin, and David Kiser, the Superior supervisor, sted in their depositions that the hose was in an unusual location, creating "a unique or rare situation that required Superior's supervisors to take control and supervise Mr. Bass."[55] Indeed, Bass argues, he stated in his deposition that he was told in his training with Nabors that "he was to take instructions from whoever's in charge of the job."[56]

b. Hazardous Condition

Bass asserts that under Louisiana law, the "the existence of a duty is a question of law... [and] varies depends on the facts, circumstances, and context of each case."[57] Further, Bass argues, "[a] contractor owes an obligation toward third persons to refrain from creating a hazardous condition."[58] Applying these propositions to the facts here, Bass points to the remarks he made in his deposition that: (1) he did not know how much the hose weighed; (2) he had never before lifted or moved a jumper hose; and (3) he was not given any instruction on how to move the hose nor any tools to move it.[59] In these circumstances, he contends, "Superior's instructions... created a danger for which [he] was not adequately trained or instructed."[60]

2. Breach

Finally, Bass asserts that "the failure to provide adequate instructions was a breach of Superior's duty" to him, because: (1) Bass "was unfamiliar with the weight of the hose, " had "never manually moved the end of the jumper hose before, " (2) because "proper instructions likely were not covered in the JSA meeting" conducted by Superior if, as Villejoin testified, the hose being on the floor was a rare situation; (3) because the Superior supervisor could have "signaled for the crane operator to move the hose and reposition the hose, as that was the proper tool for moving the hose."[61]

Further, Bass argues, Borison stated in his deposition that "it is unrealistic to think that the Nabors hands [such as Bass] would not listen to the Superior supervisors when they tell a Nabors employee what to do when the Superior supervisors were in charge of the entire operation and telling the Nabors crane operator where to place the hose."[62] In these circumstances, Bass maintains, "the lack of training and instruction was a breach of Superior's duty."[63]

Bass asserts that "it is clear that there are questions of fact as to whether Superior supervised Mr. Bass and whether Superior's supervision and instructions to Mr. Bass were the cause in fact of Mr. Bass's injuries."[64] These questions, according to Bass, make summary judgment improper.[65]

C. Superior's Reply in Further Support of Summary Judgment

In further support of its motion, Superior argues that Bass's opposition "highlights that there are no genuine issue [sic] of fact that preclude summary judgment in favor of Superior."[66] Superior points out that Bass has cited no case law to support his arguments, [67] maintains that it "remains undisputed" that Superior "did not provide [Bass] with instructions on how to perform his job, " and asserts that "Superior had no supervisory authority over [Bass]."[68]

1. Duty

Addressing the issue of duty, Superior avers that Bass "admits" in his opposition that "he was not told [by Superior] how to move the hose, only to do so, " further confirming that "he and he alone chose the work methodology ...


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