James Offord v. United States Gypsum Corp. , 358 F. App'x 540 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 22, 2009
No. 09-30553 Charles R. Fulbruge III
Summary Calendar Clerk
JAMES OFFORD; PATRICIA OFFORD,
Plaintiffs – Appellants
v.
L & W SUPPLY CORPORATION, doing business as Seacoast Supply,
Defendant – Appellee
v.
AMERICAN CASUALTY COMPANY,
Intervenor – Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-8704
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
James Offord appeals the district court’s grant of summary judgment in
favor of defendant L&W Supply Corporation d/b/a Seacoast Supply (“Seacoast”)
on his negligence claim. We affirm for the following reasons.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR . R. 47.5.4.
No. 09-30553
BACKGROUND
James Offord injured his head and spine when he fell off the trailer bed of
an eighteen-wheeled truck. His employer, Western Express, had been hired by
United States Gypsum Corporation (“Gypsum”) to deliver sheetrock to Seacoast.
Seacoast’s employees were responsible for unloading the sheetrock from Offord’s
truck, but Offord had to first remove the tarps used to cover the load. Offord
climbed on top of the load to remove one of the tarps, slipped on a wet plastic
sheet, and fell to the ground below. Although he received workers’ compensation
benefits from his employer, Offord sued both Gypsum and Seacoast for
additional damages. The district court entered summary judgment in favor of
Seacoast and Gypsum on all claims. Offord now appeals the district court’s
grant of summary judgment in favor of Seacoast only.
STANDARD OF REVIEW
“We review the district court’s grant of summary judgment de novo.”
Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary
judgment is appropriate only “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law.” F ED. R. C IV. P. 56(c).
DISCUSSION
Offord contends that Seacoast unreasonably failed to warn him not to
climb on top of his truck, provide him with safety “fall” equipment, or otherwise
help him remove the tarp. He also asserts that Seacoast had a duty to “inform
and require plaintiff to follow [Seacoast’s] safety rules,” which prohibit climbing
on top of trucks to remove tarps, and to follow OSHA guidelines. Though Offord
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mainly contends that Seacoast is independently liable for failing to provide him
with a safe work environment, he begins by arguing that Seacoast is vicariously
liable for, presumably, his employer’s negligence.
Under Louisiana law, a principal is generally not liable for the torts of its
independent contractors. See, e.g., Roberts v. Cardinal Servs. Inc., 266 F.3d 368,
380 (5th Cir. 2001), cert. denied, 535 U.S. 954, 122 S. Ct. 1357 (2002). There are
two exceptions to this rule. A principal may be liable if (1) it maintains
operational control over the injury causing activity or (2) the activity is
ultrahazardous. Id. The district court found that neither exception was
implicated. On appeal, Offord argues that the first exception applies because
“Seacoast exercises complete control of the loading and unloading of loads.”
Nothing in the record indicates that Seacoast controlled the manner in
which Offord was to complete his work. As the district court noted:
[T]he facts presented . . . establish only that Seacoast ordered a load
of sheetrock from U.S. Gypsum, that U.S. Gypsum contracted with
Western Express to deliver the sheetrock to Seacoast, that Western
Express employees covered the load with plastic tarps for weather
protection, and that Seacoast employees would accept and unload
the sheetrock if its condition was found satisfactory upon inspection.
[Seacoast’s] standard procedure was simply to provide adequate
space for untarping, and otherwise rely upon the expertise of the
delivery drivers to accomplish this task in accordance with their
training, their employer’s directives, and any requirements imposed
by the contractual arrangement between the shipper and
transportation company.
The district court further noted that Offord, “not someone at Seacoast, decided
how to remove the tarp” and “that no one forced or directed him to climb up on
the load or did anything that caused him to be on the load.” These findings are
supported by the record. The district court was therefore correct to hold that
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Seacoast should not be held vicariously liable for Offord’s injuries.
The district court was also right that Offord has not established any
independent fault on Seacoast’s part. “Generally, the owner or operator of a
facility has the duty of exercising reasonable care for the safety of persons on
the premises and the duty of not exposing such persons to unreasonable risks
of injury or harm.” Manning v. Dillard Dep’t Stores, Inc., 753 So. 2d 163, 165
(La. 1999). The extent of that duty is determined by the particular facts of the
individual case. Crane v. Exxon, 613 So. 2d 214, 221 (La. Ct. App. 1992). Offord
argues that Seacoast negligently failed to provide him with safety equipment
and help removing the tarp. In support, he cites several cases in which a
principal assumed the duty to provide a safe work environment by actively
supervising its independent contractors. Id.; Moore v. Safeway, 700 So. 2d 831
(La. Ct. App. 1996). For reasons already discussed, these cases are
distinguishable. There is no evidence that Seacoast controlled or actively
supervised Offord’s work. Offord points to no case imposing a duty on
principals to provide safety equipment or assistance to its independent
contractors, absent such a showing. See Davenport v. Amax Nickel, Inc., 569
So. 2d 23, 28 (La. Ct. App. 1990) (“We are not aware of a Louisiana statute or
jurisprudence which imposes a duty” on a principal to provide an independent
contractor “with adequate fall protection.”).
The Occupational Safety and Health Act standards, according to Offord,
establish that Seacoast breached a duty of care to him. The duty of one
employer to comply with OSHA standards for the benefit of another employer
has only been recognized by this circuit in the multi-employer construction work
site context. Am. Petroleum Inst. v. OSHA, 581 F.2d 493, 509 (5th Cir. 1978).
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This court has rejected any such duty outside the multi-employer work site
context. See Horn v. C.L. Osborn Contracting Co., 591 F.2d 318, 321 (5th Cir.
1979); Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675, 675 (5th Cir. 1975)
(per curiam). Offord fails to brief whether such a worksite existed here and the
record does not suggest that Seacoast acted as a general contractor. More
importantly, Offord fails to identify any OSHA safety regulation that was
potentially violated by Seacoast. These arguments are therefore waived.
Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009).
Finally, Offord argues that Seacoast had the duty to warn him not to
climb on the tarp. He cites several cases stating that “[i]t is the duty of one
doing construction work to properly label, mark or barricade places in the
construction site that present an unreasonable risk of harm to those in the
area.” Toledano v. Sewerage & Water Bd., 671 So. 2d 973, 976 (La. Ct. App.
1996); see also, e.g., Carr v. Boh Bros. Const. Co., 557 So. 2d 356, 358 (La. Ct.
App. 1990). None of the cited cases impose a duty to warn on facts similar to
those at issue. Indeed, none of these cases deal with a principal’s liability for
injuries sustained by an independent contractor. Consequently, these cases do
not alter the court’s conclusion that Offord has failed to show that Seacoast
acted negligently.
CONCLUSION
The district court correctly granted summary judgment in favor of
Seacoast on Offord’s negligence claim. AFFIRMED.
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