Smith v. NOBLE DRILLING (US), INC., 2000-CA-00476-COA.

• Decision Date: 08 May 2001
• Docket Number: No. 2000-CA-00476-COA.,2000-CA-00476-COA.
• Parties: Kenneth SMITH, Appellant, v. NOBLE DRILLING (U.S.), INC., Appellee.
• Court: Mississippi Court of Appeals

784 So.2d 1003

Kenneth SMITH, Appellant, v. NOBLE DRILLING (U.S.), INC., Appellee.

No. 2000-CA-00476-COA.

Court of Appeals of Mississippi.

May 8, 2001.

Mark W. Davis, Abigail Susannah Marshall, Attorneys for Appellant.

James H. Heidelberg, Pascagoula, Robert Michael Cunningham II, Attorneys for Appellee.

BEFORE KING, P.J., PAYNE, and MYERS, JJ.

PROCEDURAL HISTORY

PAYNE, J., for the Court:

¶ 1. On March 18, 1999, Kenneth Smith filed a premises liability/negligence action against Noble Drilling for injuries sustained on July 13, 1998, from an on-the-job accident. Noble moved for summary judgment which was granted by the Circuit Court of Jackson County after a hearing in March 2000. Smith appeals from the summary judgment. Finding no error, this Court now affirms.

FACTS

¶ 2. Smith was employed as a shipfitter by HAM Marine, Inc., and was injured while working on an oil rig owned and operated by Noble Drilling. Noble and HAM entered into a contract on August 29, 1997, for repairs and modifications to the oil rig while located at HAM's shipyard in Pascagoula. Smith was climbing a metal ladder within a stability column of the rig when the ladder came in contact with a bare spot on one of a number of welding lines running down the ladder way. The welding lines were the property of HAM. The contact sent an electrical current through the ladder, shocking Smith and causing him to fall about twenty feet. He suffered injuries to his head, face, jaw, and left wrist.

¶ 3. Smith filed suit against Noble alleging that, as owner of the rig, Noble Drilling was negligent by failing to provide Smith with a safe work environment; failing to provide safe welding lines; failing to warn him of the dangerous condition of the welding lines; and failing to provide him with a safety harness to prevent falls.

¶ 4. The Circuit Court of Jackson County found that Smith was injured by faulty welding lines provided by HAM, not Noble; that HAM failed to warn of the condition of the lines, if such warning was necessary since Smith had tried to repair a line at some point prior to the fall; and that Smith himself decided not to use fall protection on the ladder. The court further stated that without some showing of control by Noble, Smith cannot prevail on his claim.

ISSUES PRESENTED

STANDARD OF REVIEW

¶ 5. Smith made the following assignments of error:

I. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT NOBLE DRILLING DID NOT HAVE CONTROL OVER HAM MARINE'S WORK.

II. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT NOBLE'S CONTRACT WITH HAM MARINE DOES NOT REQUIRE HAM MARINE TO FOLLOW NOBLE'S SAFETY PROCEDURES.

¶ 6. The standard of review on an appeal from summary judgment is de novo, as set forth in Aetna Cas. and Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). The proponent of a summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. M.R.C.P. 56(c); Collier v. Trustmark Nat'l Bank, 678 So.2d 693, 696 (Miss.1996). The non-movant may not defeat the motion merely by responding with general allegations, but must set forth in an affidavit or otherwise, specific facts showing that issues exist which necessitate a trial. Drummond v. Buckley, 627 So.2d 264, 267 (Miss.1993). The evidence must be viewed in the light most favorable to the party against whom the summary judgment motion was made. Quinn v. Mississippi State Univ., 720 So.2d 843 (¶ 10) (Miss.1998).

DISCUSSION

I. DID NOBLE DRILLING HAVE CONTROL OVER HAM MARINE'S WORK.

¶ 7. "Where the owner surrenders to the contractor all control over the performance of that aspect of the work that gives rise to the injury, there is ... no liability." Lambert v. Georgia-Pacific Corp., 32 F.Supp.2d 914, 917 (S.D.Miss. 1999). Smith argues, under this Court's case of Vu v. Clayton, 96-CA-00408-COA (Miss.Ct.App., July 20, 1999), that the extent to which a premises owner has surrendered control is a matter for a jury to consider. In that case, an independent contractor fell through the floor of an attic in which he was installing an air conditioner. This Court reversed a directed verdict for the defendant building owner stating that there was no evidence that the contractor was given unfettered control of the premises and the work he conducted, the jury could have found in favor of the contractor, and at the very least, the extent to which control was surrendered was a matter for the jury to consider. Id. at (¶ 11). However, the Mississippi Supreme Court reversed this Court, and reiterated that the party in the best position to eliminate a dangerous condition should be charged with that responsibility, stating:

In contrast to [the defendants'] absence of knowledge of the conditions in the attic, Vu had been in the attic approximately ten times over the course of two days. He had twenty years of experience in climbing into attics. In Tharp v. Bunge Corp., 641 So.2d 20 (Miss.1994), this Court eliminated the open and obvious defense in premises liability actions. However, the Court held that "[t]he party in the best position to eliminate a dangerous condition should be burdened with that responsibility." Id. at 25.

Vu v. Clayton, 765 So.2d 1253 (¶ 11) (Miss. 2000). Noble contends that in this case, the party in the best position to observe and correct a defective welding line was Smith and his employer HAM Marine.

¶ 8. The Vu court also stated:

Because Vu failed to show any knowledge, either actual or constructive, on the part of either [defendant] of the allegedly dangerous condition in the attic and because the risk of falling through the ceiling was intimately connected with repair work in the attic, the trial court correctly directed a verdict in favor of [the defendants].

Id. at (¶ 15). Noble contends that Smith and his employer were in the best position to eliminate any dangerous condition created by HAM's welding leads. In his deposition, Smith testified that he had seen and taped a bad welding lead because he did not want anyone to get hurt. When asked who the welding lead belonged to, Smith said "HAM Marine." Smith testified that he obtains tools and safety harnesses from HAM's tool room, and that he felt he needed a safety harness the day of the injury, and every day. Smith also testified that no Noble employee had been in the area the day of his injury.

¶ 9. The Vu court further reiterated that a property owner is not under any duty to protect against risks arising from or intimately connected with defects of the premises, or of the machinery or appliances located thereon, which the contractor has undertaken to repair. Id. at (¶ 12) Also, the court noted that a property owner is not an absolute insurer of an invitee's safety and is not liable for conditions which should have been known by the business invitee. Vu, 765 So.2d at (¶ 13). Noble contends that Smith admittedly had actual knowledge of the defect in the welding lines and the placement of the leads. The defective leads belong to HAM and the use thereof is a task intimately connected with carrying out the construction work. Noble argues that to hold it liable for Smith's injuries would make Noble an absolute insurer of Smith's safety.

¶ 10. Smith contends that there is enough evidence with which a jury could reasonably conclude that HAM did not have unfettered control over the work it performed for Noble. Noble argued through its agent, Grady Pittman, that because HAM's work was new construction, Noble had no reason to go into that area. Smith claims that Pittman then stated that although he had not been in the area where Smith was working, he would not commit to an answer that no one else from Noble had been there. Pittman stated that Noble's employee in charge of safety, Robert Bourque, would not go into an area where Noble personnel were not working unless he knew it was safe or unless he was asked to go. Smith, however, stated in his deposition that he saw Noble's safety man every day. Smith stated that Bourque would be walking around "up top." Smith contends that when reading Pittman's deposition, it appears that Bourque was supervising personnel either in an area where he did not belong or else was told to be there. Smith claims that this conduct illustrates control beyond that which Noble would have this Court to believe.

¶ 11. Noble points out that Smith testified in his deposition that Noble's safety man did not direct him in any manner with regard to any type of job that Smith performed. Smith admittedly did not receive direction from Noble's supervisory personnel and did not ask Noble for safety equipment. John Perranich, structural superintendent for HAM, stated by affidavit that at all times pertinent to the litigation, Smith was under his supervision, or that of another HAM employee, Tim Beech. If Smith reported an unsafe practice or condition, Smith stated that it would be to HAM's safety man, and that he would go to HAM's tool room for safety equipment.

¶ 12. Noble contends that not even Smith...