from the United States District Court for the Southern
District of Texas
JONES, CLEMENT, and ELROD, Circuit Judges.
BROWN CLEMENT, Circuit Judge:
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
appeals the district court's grant of summary judgment to
Dynamic. We AFFIRM.
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.
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.
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.
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).
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
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" ...