Boyd v. Georgia Pacific Corp. ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2008
No. 08-60045 Charles R. Fulbruge III
Summary Calendar Clerk
TRACY LEE BOYD
Plaintiff-Appellant
v.
GEORGIA PACIFIC CORPORATION
Defendant-Appellee
Appeal from the United States District Court for the
Southern District of Mississippi
USDC No. 2:06-cv-253
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In this appeal, Plaintiff-Appellant Tracy Lee Boyd (“Boyd”) argues the
district court erred in granting summary judgment on his premises liability
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-60045
action against Georgia Pacific Corporation (“GP”). For the reasons below, we affirm.
I.
On July 19, 2003, the date of the accident, Boyd was a painter employed
by an independent contractor Graves Services. Pursuant to a contract between
Graves Services and GP, Boyd was at the GP facility in Taylorsville, Mississippi
to pressure wash, sandblast, and paint an elevated loading rack. After pressure
washing the loading rack, Boyd began drying the upper level of the rack with an
air hose. While drying the loading rack, Boyd walked backwards through an
open access gate and fell approximately thirteen feet to the ground below and
was injured.
Boyd had more than twenty-five years of experience in the painting and
sandblasting field, which frequently required him to work in elevated locations
including areas such as the loading rack in question. Boyd admitted that when
the accident happened he had been working on the loading rack for
approximately five hours and that he was aware of the access gate.
II.
We “review a district court’s summary judgment ruling de novo, applying
the same standard as the district court.” Nationwide Mut. Ins. Co. v. Lake
Caroline, Inc., 515 F.3d 414, 418 (5th Cir. 2008). Summary judgment is proper
when 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); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986). When granting summary judgment, a court must view “the
facts in the light most favorable to the non-movant.” Pratt v. City of Houston,
Tex., 247 F.3d 601, 606 (5th Cir. 2001) (citing Walker v. Thompson, 214 F.3d 615,
624 (5th Cir.2000)).
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No. 08-60045
III.
Under Mississippi law, a premises owner or occupier has a duty to a
business invitee to “exercise reasonable or ordinary care to keep the premises in
a reasonably safe condition.” Jones v. James Reeves Contractor, Inc., 701 So. 2d
774, 782 (Miss. 1997) (citing Jackson Ready Mix Concrete v. Sexton, 235 So. 2d
267, 270 (Miss. 1970)). The premises owner or occupier, however, “is not liable
for injuries which are not dangerous or which are, or should be known to the
business invitee.” Id.; see also Stokes v. Emerson Electric Co., 217 F.3d 353, 357
(5th Cir. 2000) (“dangerous conditions of which contractors had actual or
constructive knowledge were deemed open and obvious to them and therefore
could not provide a basis for recovery”). Additionally, the owner or occupier need
not protect a business invitee “against risk arising from or intimately connected
with defects of the premises, or of machinery or appliances located thereon,
which the contractor has undertaken to repair.” Id. (quoting Jackson Ready
Mix, 235 So. 2d at 271). Generally, if the contractor has control over the work
being performed and the work area where that work is being done, the owner
has no liability. The key question is whether the owner or occupier “maintains
any right of control over the performance of that aspect of work which gave rise
to the injury.” Id. (quoting Magee v. Transcontinental Gas Pipeline Corp., 551
So. 2d 182, 186 (Miss. 1989)).
We agree with the district court that Boyd did not demonstrate that GP
contractually or de facto maintained a right of control over performance of that
aspect of the work that gave rise to his injuries or the area where the work was
done. There is no evidence that GP retained or exercised control over Boyd or
Graves Services in the relevant pressure washing, drying, and painting of the
loading rack. Additionally, Boyd testified that he had years of experience in
similar work and in similarly elevated circumstances, that he had been working
in close proximity to the gate in question for approximately five hours, and that
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No. 08-60045
he was aware of the danger posed by the site and its attendant surroundings.
Boyd knew that the gate was there and the danger it posed. According to his
admissions, he backed through the gate while focusing on the ground. Thus,
essentially for the reasons assigned by the district court, we affirm the district
court judgment.
AFFIRMED.
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