Seneca v. Phillips Petroleum Co.

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 10, 1992
• Docket: 91-4334
• Status: Published

Opinion

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.

2 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

3 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

4 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

5 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

6 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,

7 191 (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

8 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.