United States District Court, E.D. Louisiana
ORDER AND REASONS
Deep Gulf Energy II, LLC filed a motion for summary judgment.
Rec. Doc. 65. Plaintiff filed a notice of no opposition. Rec.
Doc. 66. For the reasons discussed below, IT IS
ORDERED that the motion (Rec. Doc. 65) is
GRANTED and Plaintiff's claim against
Defendant Deep Gulf Energy II, LLC is DISMISSED WITH
BACKGROUND AND PROCEDURAL HISTORY
December 30, 2015, Plaintiff Kenneth Gardner allegedly
sustained injuries to his knee and back while working as an
electrical assistant on the Devil's Tower, a drilling
platform located in the Gulf of Mexico. See Rec.
Docs. 1 ¶¶ 9-10; 65-2 ¶¶ 1-2.
Specifically, Plaintiff was injured when he hit his knee on a
nail head on a scaffold that had been constructed on the
platform. See Rec. Doc. 1 ¶ 10. At the time of
the accident, Plaintiff “was employed by Omega Natchiq
. . . .” Id. ¶ 9.
Gulf Energy II, LLC contracted with various companies for
construction projects on the platform. See Rec. Doc.
65-2 ¶¶ 6-12. Two of these companies were Omega
Natchiq, LLC and Performance Energy Services (PES). See
Id. ¶¶ 6, 8. The contracts that Deep Gulf
executed with Omega and PES state that Omega and PES are
independent contractors. See Id. ¶¶ 7, 9.
Omega was hired to do electrical work on the platform and PES
was hired to erect scaffolding on the platform. See
Id. ¶¶ 10-12. When Plaintiff was injured, he
was assisting with Omega's electrical work on scaffolding
that PES had erected. See Rec. Doc. 1 ¶ 10.
December 2016, Plaintiff brought a negligence claim against
Deep Gulf, arguing that the condition of the scaffolding
created an unsafe work environment. See Rec. Doc. 1.
In May 2018, Deep Gulf filed the instant motion for summary
judgment, arguing that it is not liable for the negligent
acts of its independent contractors. See Rec. Doc.
65. Plaintiff then filed a notice of no opposition.
See Rec. Doc. 66.
judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of
material fact exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
the movant bears the burden of proof, it must
“demonstrate the absence of a genuine issue of material
fact” using competent summary judgment evidence.
Celotex, 477 U.S. at 323. But “where the
non-movant bears the burden of proof at trial, the movant may
merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir.
1994). Even when a motion for summary judgment is unopposed,
the movant must still carry its burden of showing that there
is no genuine issue of material fact. See Hibernia
Nat'l Bank v. Administracion Cent. Sociedad Anonima,
776 F.2d 1277, 1279 (5th Cir. 1985). When the movant meets
its burden, the burden shifts to the non-movant, who must
show by “competent summary judgment evidence”
that there is a genuine issue of material fact. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); Lindsey, 16 F.3d at 618.
invokes the jurisdiction of the Outer Continental Shelf Lands
Act (OCSLA) because his accident occurred on a stationary
platform attached to the outer continental shelf.
See Rec. Docs. 1 ¶¶ 7, 9; 7 ¶¶
2, 7; see also Rec. Doc. 65-4 ¶¶ 5, 7, 8.
OCSLA “mandates that when disputes arise involving
fixed structures erected on the outer Continental Shelf,
applicable laws of the adjacent state will be applied to the
extent not inconsistent with other federal laws and
regulations.” Coulter v. Texaco, Inc., 117
F.3d 909, 911 (5th Cir. 1997). Here, because the platform is
located off the coast of Louisiana, Louisiana negligence law
is applicable. See Rec. Docs. 1 ¶ 9; 7 ¶
7; 65-4 ¶ 6; Coulter, 117 F.3d at 911.
Louisiana negligence law, “a principal . . . cannot be
liable for injuries resulting from the negligent acts of an
independent contractor . . . unless (1) the liability arises
from ultrahazardous activities performed by the contractor on
behalf of the principal or (2) the principal retains
operational control over the contractor's acts or
expressly or impliedly authorizes those acts.”
Coulter, 117 F.3d at 911-12. Assembling scaffolding
and completing electrical work is not ultrahazardous.
See, e.g., Roberts v. Cardinal Servs.,
Inc., 266 F.3d 368, 371-72, 379-84 (5th Cir. 2001)
(holding that use of a “perforation gun, ” which
fires explosive charges, was not ultrahazardous). Therefore,
the only question is whether Deep Gulf retained operational
control of Omega and PES, which “requires an
examination of whether and to what extent the right to
control work has been contractually reserved by the
principal.” Coulter, 117 F.3d at 912.
“Operational control exists only if the principal has
direct supervision over the step-by-step process of
accomplishing the work such that the contractor is not
entirely free to do the work in his own way.” Fruge
ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564
(5th Cir. 2003).
Gulf's contracts with Omega and PES state that they are
independent contractors, that Deep Gulf “shall have no
direction or control” over Omega or PES, and that Deep
Gulf will only have the general rights of
“approval” and “inspection.” Rec.
Docs. 65-5 at 5; 65-6 at 5. PES was tasked with scaffolding
work on the platform and Omega was tasked with performing
electrical work using the scaffolding. See Rec.
Docs. 65-7; 65-8. Deep Gulf did not have employees
supervising the work on the platform when Plaintiff's
accident occurred. See Rec. Doc. 65-4 ¶ 13. In
Plaintiff's deposition, he stated that he only received
instructions from his Omega supervisor, not from Deep Gulf.
See Rec. Doc. 65-9 at 60. Similarly, a PES
representative explained in his deposition that Deep Gulf did
not directly control or supervise the construction of the
scaffolding. See Rec. Doc. 65-11 at 27. Accordingly,
Deep Gulf is entitled to summary judgment because it has
demonstrated that there is no genuine issue of material fact
about whether it exerted operational control over Omega and
PES. See Fruge, 337 F.3d at 564-65 (affirming
summary judgment in favor of principal because periodic
inspections of independent contractor's work did not
equate to operational control); Coulter, ...