LeJeune v. Shell Oil Co.

• Citation: 950 F.2d 267
• Decision Date: 10 January 1992
• Docket Number: No. 91-3083,91-3083
• Parties: John LeJEUNE and Loretta LeJeune, Plaintiffs-Appellants, and Aetna Casualty and Surety Company, Intervenor-Appellant, v. SHELL OIL COMPANY, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 267

950 F.2d 267

John LeJEUNE and Loretta LeJeune, Plaintiffs-Appellants, and Aetna Casualty and Surety Company, Intervenor-Appellant, v. SHELL OIL COMPANY, et al., Defendants-Appellees.

No. 91-3083.

United States Court of Appeals, Fifth Circuit.

Jan. 10, 1992.

Rehearing Denied Jan. 30, 1992.

Philip Miles Bradley, Gordon R. Crawford, Gonzales, La., for LeJeune.

David K. Johnson, Funderburk & Andrews, Baton Rouge, La., for intervenor-appellant Aetna Cas. Co.

Robert A. Knight, B. Frank Davis, Bernard, Cassisa, Saporito & Elliott, Metairie, La., for Shell Oil Co.

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

Before REYNALDO G. GARZA, GARWOOD, Circuit Judges, and MAHON, District Judge. ^*

REYNALDO G. GARZA, Circuit Judge:

Plaintiffs contest the district court's grant of summary judgment in favor of Shell Oil Company (Shell), dismissing plaintiff John LeJeune's allegation that he suffered injury while performing maintenance duties at a Shell Complex. For the reasons stated below, the district court's Order of Summary Judgment is AFFIRMED.

BACKGROUND

On March 10, 1987, Cajun Painting, Inc. (Cajun), contracted with Shell to perform certain painting operations at its Norco Manufacturing Complex. On February 3, 1989, plaintiff-appellant John LeJeune (LeJeune), a Cajun employee, was spray-painting the bottom of a pipe rack. He had performed this job previously, but a Shell employee had determined that the work was unsatisfactory and had to be redone. As the pipe rack was only between six to twelve inches off the ground, LeJeune had to kneel on the top of the pipes and reach under the rack with the spray-gun in one hand, while holding onto a pipe to steady himself with the other hand. According to LeJeune, his hand holding the pipe slipped, and he injured his back.

LeJeune and his family filed suit in state court against Shell and two Shell employees, Plant Manager Frederick Foster and Safety Supervisor Ernie Martin. Shell filed a Notice and Petition of Removal, claiming that LeJeune had no case against the two employees, and had joined them merely to destroy diversity. Plaintiffs filed a Motion to Remand the case to state court. The trial court denied plaintiffs' motion.

Shell then filed a Motion for Summary Judgment, which the court granted on January 9, 1991, dismissing plaintiffs' case.

ANALYSIS

After reviewing the evidence and inferences to be drawn therefrom in the light most favorable to the nonmoving party, summary judgment is mandated "if 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). Moreover, "this Court reviews the grant of summary judgment de novo, using the same criteria used by the district court in the first instance." Abshire v. Gnots-Reserve, Inc. (In re Copper/T. Smith), 929 F.2d 1073, 1076 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 190, 116 L.Ed.2d 151 (1991) (citing Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988)).

A dispute about a material fact is genuine "if 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, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Moreover, "the substantive law will identify which facts are material." Id. Having reviewed the record, we are persuaded that the district court correctly determined that there is no genuine issue of material fact and that Shell is entitled to judgment as a matter of law.

I. Shell's Safety Guidelines are not a Basis for Liability.

Plaintiffs claim that a genuine issue of material fact exists as to whether Shell failed to follow its own Safety Guidelines Shell publishes a manual applicable to its Norco complex entitled Shell Safety Guidelines and Requirements for Contractors (the Manual). This Manual is clearly intended for use by contractors in formulating their own safety procedures. According to the policy statement at the front of the Manual, "[i]n addition to adhering to applicable local, state, and federal regulations, contractors are expected to develop safety procedures manuals to be used by their supervisors and employees in the performance of work at Shell locations.... In keeping with that objective, overall safety guidelines and requirements have been developed to assist the contractors in preparing their safety procedures manual."

and was therefore in violation of Louisiana Civil Code art. 2315.

The Manual is a lengthy document and contains safety procedures which contractors are expected to follow. Moreover, according to the Manual, work could not begin until Shell issued a safe work permit, which Shell did issue in this case. According to the Manual, above and beyond the safety Guidelines which the contractor was to follow, Shell did have certain responsibilities prior to the issuance of a safe work permit. Such a permit, according to the Manual, could not be issued until Shell and the contractor had jointly inspected the area to be worked on. Moreover, Shell was to examine the area to be worked on to be sure that it was safe. ¹ In addition, Shell was to "issue explicit instructions to the craftsman to warn him of any potential safety problems, special precautions, or protective equipment which may be required (e.g. respiratory protection, hearing protection, acid hoods, etc.)."

The kind of "potential safety problems" requiring "explicit instructions" under the Manual clearly are not the type encountered by plaintiff in the performance of his job. More importantly, "[w]e have frequently noted that, under Louisiana law, 'the relationship between the principal and the independent contractor is in large measure determined by the terms of the contract itself.' " Duplantis v. Shell, 948 F.2d 187, 193 (5th Cir.1991) (quoting Ham v. Pennzoil, 869 F.2d 840, 842 (5th Cir.1989)). According to the contract between Shell and Cajun, "[c]ontractor shall act as an independent contractor on all work covered by this contract. He shall maintain complete control over and have full responsibility for his employees." Moreover, "[c]ontractor shall perform all work diligently, carefully and in a good workmanlike manner, shall furnish all labor, supervision, machinery, equipment, materials and supplies necessary therefor ..."

Regarding safety, the contract stated:

The contractor shall perform all work in such a manner as to cause a minimum of interference with buyer's operations, and shall take all necessary precautions (including those required by the buyer's safety regulations) to protect the premises and all persons and property thereon from damage or injury and shall assume responsibility for the taking of such precautions by employees, agents, permitters and sub-contractors.

The contract further required that:

Contractor shall maintain his own independent safety program and shall provide such safety equipment and protective clothing as required. He shall strictly enforce all rules and regulations set forth in our "Safety Guidelines and Requirements for Contractors."

According to the contract, Cajun was responsible for safety and for supervision. The record reveals that LeJeune's supervisor, Brian Gaubert (Gaubert), was a Cajun employee. According to Gaubert's affidavit:

Cajun Painting paid John LeJeune's weekly salary, provided him with the necessary tools, assigned and supervised his Therefore, if there was negligence regarding safety, it was Cajun's negligence. Plaintiffs place great reliance on the expert testimony of Michael Frenzel who testified that there were safer methods available for painting the pipe rack. It was Cajun's responsibility, however, to devise the method of performing the work. Therefore, plaintiffs can only succeed under their art. 2315 theory if Shell is responsible for Cajun's hypothetical negligence.

daily work; ... I, as Cajun Painting foreman, was responsible for the supervision of John LeJeune's work, activities and safety at the Norco Manufacturing Complex.

We note that "[u]nder Louisiana law, a principal generally is not liable for the offenses an independent contractor commits in the course of performing contractual duties." Triplette v. Exxon Corp., 554 So.2d 1361, 1362 (La.App., 1st Cir.1989). Two exceptions exist. One is if the work the contractor is to perform is "ultrahazardous." Id. Plaintiffs do not claim that LeJeune's job fit this description. "The second exception imposes liability upon a principal for the negligent acts of an independent contractor when the principal reserves the right to supervise or control the work." Id. at 1363. In other words, "[a] principal is not liable for the torts of an independent contractor unless the principal exercises operational control over or expressly or impliedly authorizes the independent contractor's actions." Duplantis, at 192 (quoting Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cir.1989)).

In Landry, we found that:

In order for [a principal] to be liable for the actions of an [independent contractor], the [principal] must have retained at least some degree of control over the manner in which the work was done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations or deviations. Such a general right is usually reserved to employers, but this does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of right of supervision that the contractor is not entirely free to do the work in his own way.

Landry, 889 F.2d at 1471 (quoting RESTATEMENT (SECOND) OF TORTS § 414, comment c) (quoted in D...