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Hicks v. BP Exploration & Production, Inc.

United States District Court, E.D. Louisiana

April 19, 2018

ROBERT G. HICKS ET AL.
v.
BP EXPLORATION & PRODUCTION, INC. ET AL.

         SECTION I

          ORDER AND REASONS

          LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE

         Robert Hicks (“Hicks”) alleges that he was injured during a personnel basket transfer on March 20, 2016 between the MAD DOG, an offshore platform on the Outer Continental Shelf (“OCS”) that is owned and operated by BP Exploration and Production Inc. (“BP Exploration”), and the OCSV SIEM STINGRAY (“STINGRAY”), a vessel time chartered by BP Exploration that was being used at the time as living quarters for some of the MAD DOG's workers.[1] Among the defendants that plaintiffs seek to hold accountable for Hicks' alleged injuries are BP Exploration and BP America Production Company (“BP America”) (collectively, “the BP defendants”).

         Before the Court is the BP defendants' motion for summary judgment.[2] The BP defendants contend that plaintiffs' claims against them should not proceed to trial, because (1) “the plaintiff[s] ha[ve] failed to come forward with any evidence that any alleged act of negligence by [ ] workers involved in the transfer breached a standard of care or actually caused his injury”; (2) “the claims against BP based on any alleged negligence from the platform should be dismissed on the basis of the independent contractor defense”; and (3) “BP did not breach any duties of a time charterer in regard[s] [to] the [ ] STINGRAY.”[3] Plaintiffs oppose the motion.[4]

         I.

         Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

         Once the party seeking summary judgment carries its initial burden, the nonmoving party must come forward with specific facts showing that there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue of material fact is not satisfied by creating “‘some metaphysical doubt as to the material facts, ' by ‘conclusory allegations, ' by ‘unsubstantiated assertions, ' or by only a ‘scintilla' of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. However, the nonmoving party's evidence “is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).

         Moreover, “[a]lthough the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . ., the material may be presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017) (quoting 11 Moore's Federal Practice-Civil ¶ 56.91 (2017)). “This flexibility allows the court to consider the evidence that would likely be admitted at trial . . . without imposing on parties the time and expense it takes to authenticate everything in the record.” Maurer v. Independence Town, No. 16-30673, 2017 WL 3866561, at *3 (5th Cir. Sept. 5, 2017).

         II.

         After reviewing the parties' submissions and the applicable law, the Court concludes that summary judgment in the BP defendants' favor is not appropriate.

         A.

         The first ground for summary judgment raised by the BP defendants is that “the plaintiff[s] ha[ve] failed to come forward with any evidence that any alleged act of negligence by [ ] workers involved in the transfer breached a standard of care or actually caused his injury.”[5] The Court previously concluded that Louisiana law governs plaintiffs' non-time charterer claims against BP.[6]

         “In an action [under Louisiana law] to recover damages for injuries allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence.”[7] Hanks v. Entergy Corp., 944 So.2d 564, 578 (La. 2006).

“Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); 2) whether the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant's substandard conduct was a cause-in-fact of the plaintiff's injures (the cause-in-fact element); (4) whether the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element).[8]

Id. at 579.

         “Duty varies depending on the facts, circumstances, and context of each case and is limited by the particular risk, harm, and plaintiff involved.” Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir. 1994) (discussing Louisiana law). That being said, “[t]here is an almost universal duty on the part of the defendant in negligence cases to use reasonable care so as to avoid injury to another.” Boykin v. Louisiana Transit Co., 707 So.2d 1225, 1231 (La. 1998); cf. Dupre, 20 F.3d at 157 (“As a general rule [under Louisiana law], the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm.” (internal quotation marks omitted)). “Whether the defendant breached [a] duty and whether that breach was a cause in fact of plaintiff's injuries are factual questions to be determined by the factfinder.” Hanks, 944 So.2d at 580.

         Having reviewed the materials submitted by the parties in connection with the present motion, the Court concludes that a reasonable jury could find that workers should not have proceeded with Hicks' personnel basket transfer in light of weather conditions, and that the decision to proceed with the transfer was both the cause-in-fact and legal cause of injury to Hicks.[9] Therefore, the Court will deny the BP defendants' request for summary judgment on breach and causation grounds.

         B.

         The next ground for summary judgment raised by the BP defendants is that “the claims against BP based on any alleged negligence from the platform should be dismissed on the basis of the independent contractor defense.”[10] The BP defendants contend that platform workers involved in the personnel basket transfer that allegedly injured Hicks-including, inter alia, Freddie Greer (“Greer”), [11] the site lifting coordinator-were independent contractors. Based on this contention, the BP defendants argue that Louisiana's independent contractor defense shields them from liability for those workers' actions.

         “The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.” McLeod v. Moore, 7 So.3d 190, 192 (La. Ct. App. 2d Cir. 2009). For an independent contractor relationship to exist between two parties under Louisiana law, the following five factors must be satisfied:

1. There is a valid contract between the parties;
2. The work being done is of an independent nature such that the contractor may employ nonexclusive means ...

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