Seneca v. Phillips Petroleum Co. ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-4334
CAL R. SENECA, RYAN SENECA
and JAMIE SENECA,
Plaintiffs-Appellants,
versus
PHILLIPS PETROLEUM COMPANY, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(June 10, 1992)
Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Cal R. Seneca, Ryan Seneca and Jamie Seneca appeal from the
grant of summary judgment in their action against Phillips
Petroleum arising from Cal Seneca's back injury incurred on a
Phillips offshore platform. We find that the district court's
grant of summary judgment on Seneca's negligence claim was based on
an erroneous interpretation of Ainsworth v. Shell Offshore, Inc.,
829 F.2d 548 (5th Cir. 1987). Phillips is nonetheless entitled to
summary judgment on Seneca's negligence claim because the record
evidence demonstrates that no material issue of fact exists on this
claim. Seneca has also asserted claims under La. Civ. Code Art.
2317 and 2322. We affirm the district court's grant of summary
judgment for Phillips on both of these claims.
I.
Nitrogen Pumping and Coiled Tubing Specialists, Inc. (NPACT)
provides coil tubing services for Phillips Petroleum's drilling
operations in the Gulf of Mexico. At the time of the accident,
Seneca was an NPACT employee assigned to perform coil tubing
services on an offshore platform owned and operated by Phillips.
Phillips was responsible for transporting workers to and from
its offshore facilities. On April 14, 1987, Tad Carl, an NPACT
foreman, asked Phillips to bring a replacement worker out to the
platform to allow an NPACT employee to be transported to shore.
The replacement employee arrived at the dock and signed in, but for
some reason was not transported to Platform 66C to join Seneca's
crew. Seneca alleges that Phillips was negligent in its failure to
inform the replacement worker that he should board the helicopter
going out to platform 66C.
After the NPACT employee had left the platform but before the
replacement employee had arrived, Phillips ordered NPACT to rig
down its coil tubing unit on Platform 66A. A rig down operation
would normally call for three employees, but because of the delay
in transporting the replacement worker to the platform, only two
NPACT employees were available. NPACT employees Carl and Seneca
were moved to 66A to begin the rig down operation and Carl was
assured that Phillips employee John Guidry would help them with the
rig down.
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Before the rig down was completed, Guidry stopped assisting
Seneca and left the immediate area, apparently in response to an
alarm or buzzer on the platform. He did not indicate how long he
would be gone or where he was going. Seneca continued to coil the
last few feet of hoses and then attempted to close the heavy gate
to the hose basket by himself. He had never closed the gate by
himself before, but had always had the assistance of a coworker.
He had, however, seen other, larger men close these gates before by
themselves. By his own admission, Seneca made no efforts to locate
anyone to help him lift the gate. Seneca decided to lift the gate
because there was no one else within sight or hearing and "you just
don't whine to anyone about . . . well, you left me here and you
wouldn't do it." Seneca severely injured his back in the attempt
to close the gate.
Seneca filed suit against Phillips on several theories of
liability. In October 1988, Phillips moved for summary judgment on
Seneca's claims under La. Civ. Code Arts. 2315, 2316, 2317, and
2322. The court granted its motion as to Art. 2317, but denied it
as to the other provisions. In February 1989, Phillips filed
another motion for summary judgment on the remaining claims. The
district court granted the motion for summary judgment as to all
claims. Seneca timely appealed.
II.
The district court held that under Ainsworth v. Shell
Offshore, Inc., 829 F.2d 548, 550 (5th Cir. 1987), Phillips owed no
duty to Seneca. This basis for the grant of summary judgment was
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based upon a misinterpretation of the proper scope of Ainsworth. In
Ainsworth, Shell's subcontractor had been negligent in its
maintenance of safe working conditions on the platform and the
question was to what extent a contractor is liable for its
subcontractor's negligence. We held that under Louisiana law "a
principal generally is not liable for the offenses an independent
contractor commits in the course of performing its contractual
duties." 829 F.2d at 550 (emphasis added). Unlike Ainsworth,
Seneca does not base his claim upon the negligent acts of the
subcontractor, but alleges that his harm was caused directly by the
negligent acts of Shell employees. Therefore, Ainsworth has no
application here.
Phillips argues that we may nonetheless affirm the summary
judgment on the ground that there is no genuine issue of material
fact on the question of Phillips' negligence. See Church of
Scientology of Calif. v. Cazares, 638 F.2d 1272, 1281 (5th Cir.
1981) (court may uphold grant of summary judgment on different
grounds than relied upon by trial court.). We agree. Our review
of the record convinces us that Phillips is entitled to summary
judgment on the issues of negligence and causation.
Seneca relies upon Lazzell v. Booker Drilling Co., Inc., 816
F.2d 196 (5th Cir. 1987), where we held that a principal could be
liable for its employees' negligent failure to carry through on a
promise to help a subcontractor complete operations on the oil rig.
Lazzell stands for the proposition that a contractor who promises
to assist a subcontractor in the completion of a task accepts the
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responsibility of performing that task non-negligently. Assuming
arguendo that Phillips accepted such a duty in this case, Seneca
cannot prevail unless he can also demonstrate that Phillips'
employees acted negligently and that their negligence caused his
injury.
Seneca alleges that Phillips is liable because Guidry was
negligent in leaving the work area during the rig down operation.
No reasonable jury could conclude from the record evidence that
Guidry was negligent in leaving the work he was doing with Seneca
for one to two minutes during an operation that took several hours.
There is no evidence that a hand assisting in the rig down
procedure is required to be available at every moment during a
routine rig down. The undisputed evidence is that Guidry left
Seneca's immediate area only one to two minutes before the accident
and was back in time to help Carl tend the injured Seneca. Unlike
the situation in Lazzell where an impending storm made immediate
action necessary, there were no exigent circumstances requiring
that the gate be lifted before Guidry returned or someone else was
available. In fact, Seneca admitted in his deposition that there
were several other tasks to be completed in the rigdown which could
have been done safely in Guidry's absence. This accident resulted
from Seneca's decision to attempt the lift of the gate on his own,
not from any negligent action by Guidry.
Seneca further asserts that Phillips was negligent in failing
to ensure that a replacement NPACT crew member was transported to
the platform. Even if we assume that Phillips was negligent in
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arranging the crew change, this alleged negligence cannot be said
to have proximately caused Seneca's injury. The undisputed
evidence indicates that NPACT had on several previous occasions
completed rigdown procedures with two NPACT men and an additional
man provided by Phillips. Seneca has offered no evidence that it
was improper for the rig down to be completed by a combined work
crew of NPACT and Phillips employees. His only real complaint is
that the employee whom Phillips assigned to do the work was
negligent. Because we find that Guidry did not negligently cause
Seneca's injuries, the failure of Phillips to transport another
NPACT worker to take his place cannot constitute a proximate cause
of Seneca's injury.
III.
Seneca also alleges that Phillips is strictly liable under La.
Civ. Code Art. 2317. To prove liability under Art. 2317, the
plaintiff must show that the thing which caused the injury was in
the care or custody of owner; that a vice or defect existed in the
thing; that the vice or defect created an unreasonable risk of
harm; that the defendants failed to make the thing safe; and that
the vice or defect caused the alleged injury. Friou v. Phillips
Petroleum Co., 948 F.2d 972, 975 (5th Cir. 1991). The district
court granted summary judgment for Phillips because Seneca failed
to produce sufficient summary judgment evidence to support his
argument that Phillips had control over the NPACT coil tubing unit.
Our case law has broadly interpreted the custody requirement
to extend to those who have general safety supervision over an
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area. Dobbs v. Gulf Oil Company, 759 F.2d 1213 (5th Cir. 1985);
Haas v. Atlantic Richfield, 799 F.2d 1011 (5th Cir. 1986). We need
not address the issue of custody, however, because Seneca has
failed to establish a genuine issue of material fact as to whether
the coil tubing unit contained a vice or defect. Seneca alleges
that the unit was defective because it did not contain a tag
cautioning that two persons are required to lift the basket. The
sole evidentiary support for this claim is the expert report of
Stephen Killingsworth.
We first note that there are numerous procedural problems with
our consideration of Killingsworth's report at all. The report was
placed into evidence after the district court had already ruled
upon Phillips' motion for summary judgment. On appeal, we consider
only the materials before the district court at the time of its
ruling. Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th
Cir. 1988). The district court denied Seneca's motion to alter or
amend the judgment on the basis of this evidence. We review the
denial of such a motion for abuse of discretion only. Schauss v.
Metals Depository Corp., 757 F.2d 649 (5th Cir. 1985). Seneca had
ample opportunity to come forward with evidence supporting its
claim of a vice or defect and failed to do so. The district court
acted well within its discretion in refusing to alter or amend the
judgment on the basis of an unsworn letter from a person with no
recitation of his qualifications or any other indication of
expertise. See Duplantis v. Shell Offshore, Inc., 948 F.2d 187,
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191 (expert letter not considered for summary judgment purposes
where it is unsworn and fails to indicate expert's qualifications).
Even if we consider Killingsworth's report, however, we would
still affirm summary judgment for Phillips. The relevant part of
the report states that "[t]he only possible deficiencies in the
coiled tubing system's gate was [sic] the lack of caution tags
instructing users to have two people lift the gate. However, the
lack of caution tags was not the cause of this accident." Such an
equivocal statement of possible defect coupled with a clear denial
of causation cannot possibly create an issue of fact sufficient to
withstand summary judgment.
IV.
Seneca has also alleged liability under La. Civ. Code Art.
2322. In order to prove liability under Art. 2322, the plaintiff
must demonstrate that a building which the defendant owns has a
ruin caused by a vice in construction of a neglect of the owner
which causes the plaintiff's damage. Olsen v. Shell Oil Co., 561
F.2d 1178 (5th Cir. 1977). Art. 2322 extends to appurtenances of
buildings. In determining whether the coil tubing unit was an
appurtenance of the oil platform, the court considers how securely
the structure is attached to the building and the degree of
permanence intended. Harrison v. Exxon Corp., 824 F.2d 444 (5th
Cir. 1987).
The coiled tubing unit at issue here rested on skids and was
only temporarily connected to the platform while it was in use. It
was intended to be moved by NPACT from one platform to another as
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needed. Therefore, the district court concluded that the unit was
not an appurtenance covered under Art. 2322.
Seneca argues that the large size of the coiled tubing unit
and the number of hours required to disengage and move it make it
permanent enough to support Art. 2322 liability. We disagree.
None of the cases to which Seneca points apply Art. 2322 to an item
which is designed to be moved regularly. Although the coiled
tubing unit is difficult to move, it is clearly designed for
temporary use on a platform and not as a permanent addition. The
district court correctly granted of summary judgment on this claim.
The judgment of the district court is AFFIRMED.
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