Hall v. Moveable Offshore, Inc.

• Decision Date: 13 June 1972
• Docket Number: No. 71-2914 Summary Calendar.,71-2914 Summary Calendar.
• Citation: 455 F.2d 633
• Parties: Earl HALL, Plaintiff-Appellant, v. MOVEABLE OFFSHORE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

455 F.2d 633 (1972)

Earl HALL, Plaintiff-Appellant, v. MOVEABLE OFFSHORE, INC., Defendant-Appellee.

No. 71-2914 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 22, 1972.

Rehearing Denied June 13, 1972.

Harry F. Maddin, Corpus Christi, Tex., for plaintiff-appellant.

John H. Benckenstein, Beaumont, Tex., for defendant-appellee.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The central question in this appeal sounds more like a riddle—Who was in control of a scaffold without feet? The jury had the answer, but the Trial Court thought otherwise. The jury was right—or more accurately, theirs was the exclusive province to determine the issue after sifting through contested facts—and accordingly we reverse the Trial Court's judgment n. o. v. which dismissed Plaintiff's case.

The scenario in what would normally have been another multi-party donny-brook in which all lash out against each other, involves the following cast of characters in the order of their appearance, but headed by Hall, the injured Plaintiff, and Moveable Offshore, Inc., the sole Defendant. Dresser-Ideco sold an offshore drilling rig to High Seas, Inc. During construction of the rig at the Dresser Beaumont facility, scaffoldings leased from Safway Scaffold Company (whose name turned out to be somewhat less than prophetic) were erected about the rig, and particularly between the rig and the waterway through which it would eventually be carried to the drilling site. Forest Oil Company, drilling contractor for High Seas, hired Moveable Offshore, Inc. (Defendant) to transport the finished rig from the Beaumont facility down the Neches River to a drilling platform in the Gulf of Mexico. Moveable did not have available¹ a derrick barge required to load the rig, and accordingly contracted with Brown & Root, Inc. to furnish its derrick barge, the "Big John," and a crew to load the rig onto Moveable's transport vessel. Earl Hall (Plaintiff) was an employee of Brown & Root, who was injured while involved in this operation.

The injury occurred while Hall was assisting in attaching a tagline from the derrick barge to the drilling rig. In this readily foreseeable pursuit, he had climbed the scaffolding adjacent to the rig to throw one end of the tagline to a fellow employee, the other end being fastened to the barge. At this time one of the legs of the scaffold began to sink into the ground and the scaffold began to tilt dangerously. Fearing that he would be trapped beneath the scaffold or thrown therefrom, Hall jumped to the ground as the scaffold was tilting over. As a result of this fall, he sustained permanently disabling injuries.

Had the scaffolding been equipped with "feet" or some other suitable support beneath its tubular legs, the accident would never have occurred. Hall sued Moveable for its failure to provide him with a safe working place and for its negligent failure to inspect and discover dangerous conditions at the working site and to protect him against or warn him of these obstacles to safe performance of his duties. On a general verdict, the jury awarded him $51,000, but the Trial Court entered judgment n. o. v. for Moveable.² Hall appeals.

The question in this case is nominally one of duty.³ The rule in this Texas diversity action is that, "A general contractor in control of premises owes a duty to the employees of subcontractors similar to that owed by an owner or occupier of land to his invitees." McKee v. Patterson, 1954, 153 Tex. 517, 271 S. W.2d 391, 393 (emphasis added); Smith v. Henger, 1950, 148 Tex. 456, 226 S.W.2d 425. Therefore, the real crucial question becomes—Was Moveable "in control" of the facility then being used which was located on the Dresser premises? This was a question of fact, submitted to the jury for a general verdict on proper instructions. Implicitly—by virtue of the general verdict for Plaintiff—the jury found that Moveable was in control of the "premises."

The issue was contested, but there is sufficient evidence in the record to support the jury finding on this issue.⁴ After all, Moveable was the party who engaged Brown & Root to discharge functions which were essential to performance of Moveable's obligations. Moveable could anticipate that in rigging the rig for hoisting by the derrick barge, it might be necessary for workers to use some parts of the scaffolding which was so closely adjacent to the rig and had in fact been directly used in its construction. At least, it was not an unlikely or unnatural thing for workers to use this available and apparently adequate facility. Its location between the drilling rig and the water made it either essential or appropriate that it be used in executing the lift and transfer of the rig from the land onto a vessel. The practical necessities to carry out Moveable's engagement and the willingness of Dresser (the temporary "possessor" of the scaffolding before Moveable) that the scaffold be used if needed by Moveable or its subcontractors is quite enough to sustain the jury finding of control.

Since Moveable was in control of the premises, the only question remaining is the scope of the duty owed to Hall. The jury instructions correctly defined the duty as being "to inspect and discover dangerous conditions, and to protect his invitee from dangers of which the occupier knows, or of which he should have known in the exercise of ordinary care." The instructions also defined the duty to include the responsibility "to warn invitee" of dangerous conditions on the premises.⁵ It is undisputed that Moveable failed to fulfill this duty, and that such failure proximately caused Hall's injuries.

Thus, accepting Moveable's construction of Texas law, and the jury verdict which rested on unassailable instructions and which is amply supported by sufficient evidence, judgment n. o. v.⁶ was improper and must be reversed and remanded for entry of judgment on the jury verdict for the Plaintiff.

Reversed and...