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Davis v. Dynamic Offshore Resources, L.L.C.

United States Court of Appeals, Fifth Circuit

May 12, 2017

THOMAS DAVIS, Plaintiff-Appellant
v.
DYNAMIC OFFSHORE RESOURCES, L.L.C., Defendant-Appellee

         Appeal from the United States District Court for the Southern District of Texas

          Before JONES, CLEMENT, and ELROD, Circuit Judges.

          EDITH BROWN CLEMENT, Circuit Judge:

         Dynamic Offshore Resources LLC ("Dynamic") owns and operates offshore platforms in the Gulf of Mexico. Thomas Davis, a crane mechanic employed by Gulf Crane Services, was allegedly injured during a personnel-basket transfer to Dynamic's 86A platform. No Dynamic employees were present at the 86A platform. Independent contractors employed the lead operator, the crane operator, and all other workers on the platform. Davis brought suit against Dynamic for negligence and gross negligence. The district court granted summary judgment to Dynamic, holding that it was not vicariously liable for the alleged negligence of its independent contractors.

          Davis appeals the district court's grant of summary judgment to Dynamic. We AFFIRM.

         I

         On March 26, 2013, a Gulf Crane employee told Davis that a winch on a crane on Dynamic's 86B platform had not passed inspection and needed to be replaced. A new winch was located at the 86A platform. When Davis arrived by boat at the 86A platform, an equipment transfer basket lowered the winch into the boat. Another worker was lowered into the boat via personnel-basket transfer and informed Davis that they were going to change the winch at the 86B platform.

         Davis decided to delay replacing the winch because of safety concerns related to wind. Davis's "stop work authority" authorized him to stop work "at all times." He needed to inform Dynamic's foreman, who was on another platform, of his decision to delay the work. Instead of contacting the foreman by radio from the boat, Davis asked the crane operator to transport him to the 86A platform via personnel basket so he could call the foreman privately from the phone located on the platform.

         As Davis was being lifted, the personnel basket suddenly dropped six to eight feet. Davis testified at his deposition that the drop occurred because the crane operator swung the personnel basket into the wind when he should have swung it with the wind. After the drop, the crane operator continued the transfer until Davis was on the 86A platform. Davis testified that he immediately "felt pain in [his] shoulder, [his] back, [his] knees" after the drop.

         II

         This court reviews de novo an order granting summary judgment, "applying the same standard as the district court." Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Fed.R.Civ.P. 56(a).

         III

         "It is well established that a principal is not liable for the activities of an independent contractor committed in the course of performing its duties under the contract." Bartholomew v. CNG Producing Co., 832 F.2d 326, 329 (5th Cir. 1987). Louisiana law recognizes two exceptions to this general rule: (1) "a principal may not escape liability arising out of ultrahazardous activities which are contracted out to an independent contractor"; and (2) "a principal is liable for the acts of an independent contractor if he exercises operational control over those acts or expressly or impliedly authorizes an unsafe practice." Id. There are two issues on appeal: (1) whether personnel-basket transfers are ultrahazardous activity; and (2) whether Dynamic authorized an unsafe working condition.

         First, personnel-basket transfers are not ultrahazardous activity because they "require substandard conduct to cause injury." Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 550 (5th Cir. 1987). Evidence that the transfer was made in high winds is irrelevant to whether personnel-basket transfers are ultrahazardous. "Whether an activity qualifies as ultrahazardous under the Louisiana doctrine is a question of law." Hawkins v. Evans Cooperage Co., 766 F.2d 904, 907 (5th Cir. 1985). Louisiana law considers only whether an activity is per se ultrahazardous, not whether an activity in specific conditions is ultrahazardous. See, e.g., id.; O'Neal v. Int'l Paper Co., 715 F.2d 199, 201-02 (5th Cir. 1983). Davis's counsel conceded at oral argument that a personnel basket transfer is not "in and of itself" ...


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