United States District Court, E.D. Louisiana
ROBERT G. HICKS ET AL.
BP EXPLORATION & PRODUCTION, INC. ET AL.
ORDER AND REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE
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. 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”).
the Court is the BP defendants' motion for summary
judgment. 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.” Plaintiffs oppose the
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).
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).
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).
“[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).
reviewing the parties' submissions and the applicable
law, the Court concludes that summary judgment in the BP
defendants' favor is not appropriate.
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.” The Court previously
concluded that Louisiana law governs plaintiffs' non-time
charterer claims against BP.
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.” 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
Id. at 579.
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.
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. Therefore, the Court will deny the BP
defendants' request for summary judgment on breach and
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.” The BP
defendants contend that platform workers involved in the
personnel basket transfer that allegedly injured
Hicks-including, inter alia, Freddie Greer
(“Greer”),  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'
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 ...