920 F.2d 272 (5th Cir. 1991), 90-3238, Ladue v. Chevron, United States, Inc.

Docket Nº:90-3238.
Citation:920 F.2d 272
Party Name:Stephen T. LADUE, Plaintiff-Appellant, v. CHEVRON, U.S.A., INC., Defendant-Appellee.
Case Date:January 04, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 272

920 F.2d 272 (5th Cir. 1991)

Stephen T. LADUE, Plaintiff-Appellant,

v.

CHEVRON, U.S.A., INC., Defendant-Appellee.

No. 90-3238.

United States Court of Appeals, Fifth Circuit

January 4, 1991

Rehearing and Rehearing En Banc

Denied Feb. 7, 1991.

Edward F. Kohnke, IV, Richard V. Kohnke, Healey & Kohnke, New Orleans, La. for plaintiff-appellant.

David L. Duplantier, U.S. Atty., Chevron, Inc., George Burton Jurgens, III, Marion L. Fagan, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, SMITH, and BARKSDALE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A roustabout, employed by an independent contractor hired to replace decayed deck grating on an offshore mineral-production platform, was injured when a piece of the deck grating gave way under his weight. He brought suit under the Outer Continental Shelf Lands Act, alleging that the platform owner was strictly liable under Louisiana Civil Code Articles 2317 and 2322. Because we believe that the Louisiana

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Supreme Court would hold that the platform owner owed no duty under these articles to an independent-contractor repairman injured by the very condition he was hired to repair, we affirm the summary judgment granted by the district court.

I

Stephen T. Ladue was employed as a roustabout by Bama Contractors, Inc., an oil-field construction contractor. Bama contracted with Chevron to replace the deteriorating deck gratings on Chevron's South Pass 78D oil and gas platform, located off the coast of Louisiana. Bama was told by Chevron that the gratings were rusted and in poor condition; Bama nevertheless entered into the contract and represented to Chevron that it could perform the work safely. Ladue was a member of the welding crew dispatched by Bama to do the job.

The crew's method of operation was to cut the welds holding one piece of grating in place, lift it out of the deck, immediately replace it with a new piece of grating, and then promptly weld the new piece to the structural support beams of the platform. The crew replaced the grating sequentially, moving from one side of the platform to the other.

Ladue was assisting the Bama crew in removing a piece of grating approximately eighteen inches wide by seven feet long. He was standing on a piece of old grating immediately adjacent to the piece being changed. This was the next section to be changed and it had, in fact, already been cut free from one of the two structural beams supporting it. As Ladue reached down to lift out the grating being changed, the piece he was standing on broke loose. Ladue managed to avoid falling into the water seventy feet below by catching hold of the deck, but in doing so he injured his hand, arm, shoulder, and back.

Ladue brought suit against Chevron under the Outer Continental Shelf Lands Act, 1 claiming that Chevron was strictly liable for his injuries under Louisiana Civil Code Articles 2317 and 2322, and liable in negligence under Civil Code Article 2315. The district court granted Chevron's motion for summary judgment on all three causes of action. 2 Ladue challenges the district court's judgment only with respect to his strict liability claims under Articles 2317 and 2322.

II

Summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." 3 In ruling on a motion for summary judgment, the court must first ascertain from the applicable substantive law which factual issues are material; then, viewing the evidence submitted in a light most favorable to the nonmovant, the court must decide whether a reasonable trier of fact could find for the nonmoving party. 4 We review the district court's ruling on a motion for summary judgment de novo. 5

A. Ascertaining the Applicable Law

To recover under Article 2317, 6 a plaintiff must prove "that he was injured by a defective thing which was in the care or custody of the defendant." 7 To recover under Article 2322, 8 a plaintiff must prove

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"that his injury was caused by the ruin of a building owned by the defendant, and that the ruin was attributable to a vice in the building's original construction or to a failure to repair it." 9 Under both Articles, a plaintiff must prove that the vice or defect at issue posed an unreasonable risk of injury. 10

Chevron argues that neither Article 2317 nor Article 2322 should be read to extend the liability of the owner of a thing or a building to an independent-contractor repairman who is injured by the very condition he has been hired to repair. Ladue counters that the Louisiana courts have recognized no such exception to the strict liability scheme created by those provisions. Each side cites a number of cases decided by the Louisiana courts to support its respective position.

When adjudicating claims for which state law provides the rules of decision, even when those claims are "federal questions" in form, we are bound to apply the law as interpreted by the state's highest court. 11 When the state's court of last resort has yet to speak on an issue, as in this case, our task is to determine, to the best of our ability, how that court would rule if the issue were before it. 12 We are therefore bound by an intermediate state appellate court decision only when we remain unconvinced "by other ... data that the highest court of the state would decide otherwise." 13

The only Louisiana decision directly on point is Mason v. Liberty Mutual Insurance Company, 14 decided in 1982 by the Louisiana Court of Appeal for the Fourth Circuit. Mason was employed by a renovation contractor. He fell and injured himself while on the roof of a porch, attempting to determine whether the porch could be repaired or whether it must be demolished. Like Ladue, Mason brought suit under Articles 2315, 2317, and 2322. The trial court in effect granted summary judgment on Mason's claims under Articles 2317 and 2322, concluding that those two articles should not be read to " 'destroy the basic protections afforded owners of immovables who seek to maintain their property in a proper state of repair.... In our view it was never intended that a repairman could recover against an owner [under Article 2322] if said repairman is attempting to respond to the call to make repairs.' " 15

The court of appeals reversed. The court first cited dicta in the Louisiana Supreme Court's decisions in Olsen v. Shell Oil Company 16 and Fonseca v. Marlin Marine Corporation 17 to support the proposition that Articles 2317 and 2322 encompass all persons injured by a defective thing or building. In Olsen, the Louisiana Supreme Court had remarked that " 'it would be singular, indeed, if the men at work in [a] building were excluded from the[ ] just and salutary operation [of Article

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2322].' " 18 In Fonseca, the court stated in passing that "Article 2322 makes the owner of a building answerable in damages to any person who is injured--while rightfully inside or outside the building--in an accident caused by the owner's neglect to repair the building or from a vice (defect) in its original construction." 19 The Mason court declined to follow dicta in decisions by other state courts of appeals, concluding that the Louisiana Supreme Court had never expressed any intention "to insulate an owner of a building from a claim of strict liability under [Article] 2322 to a repairman who is injured through the owner's neglect to repair or from a vice in the original construction." 20

While the Mason decision is instructive, we are convinced after examining all of the pertinent authorities that the Louisiana Supreme Court would decide otherwise. In Entrevia v. Hood, 21 decided subsequent to the Louisiana Fourth Circuit's decision in Mason, the Louisiana Supreme Court issued a comprehensive statement on the manner in which a court is to determine liability under Articles 2317 and 2322. The plaintiff in Entrevia was injured when the steps leading to an abandoned house collapsed beneath her. She was on the premises without the owner's knowledge or permission; the house was obviously vacant, and was surrounded by a fence and "No Trespassing" signs. The plaintiff brought suit against the owner under Articles 2317 and 2322.

The Louisiana Supreme Court began by examining the principles of fault underlying the strict liability provisions of Articles 2317 and 2322. Quoting at length from its landmark decision in Loescher v. Parr, 22 the court emphasized that Articles 2317 and 2322 impose liability only when the defect in the thing or building " 'creates an unreasonable risk of harm to others.... [The owner's] fault rests upon his failure to prevent the risk creating harm and upon his obligation to guard against the condition ... which creates the unreasonable risk of harm to others.' " 23 Because this is so, the court held, a building owner "cannot be held responsible for all injuries resulting from any risk posed by his building." He may be held liable for "only those caused by an unreasonable risk of harm to others." 24

Determining whether a particular risk is unreasonable is a question to be decided "from the standpoint of justice and social utility." 25 "Except in the clearest of cases, it is necessary for the judge, in shaping his decision about how the law applies to the facts, to consider the particular situation from the same standpoint as would a legislator regulating the matter." 26 The court must consider "the moral, social and economic values [involved] as well as the ideal of justice in reaching an intelligent and responsible decision." 27

The Louisiana Supreme Court explicitly recognized that this sort of analysis "is similar to that employed in determining whether a risk is unreasonable in a traditional negligence...

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