Hosey v. Shell Oil Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DAVID HOSEY, ET AL. CIVIL ACTION

v. NO. 19-9816

SHELL OIL COMPANY, ET AL. SECTION "F"

ORDER AND REASONS

Before the Court is a motion for summary judgment by Shell

Oil Company and Shell Offshore Inc. For the reasons that follow,

the motion is GRANTED, and the plaintiffs’ claims are dismissed.

Background

This personal injury case arises from a roustabout’s claim

that he hurt his lower back when he and a co-worker manually lifted

and moved a washing machine into a cargo box while working the

night shift on the Olympus Tension Leg Platform in the Gulf of

Mexico.

Shell Offshore Inc.1 owns and operates the Olympus Tension

Leg Platform, which is located on and permanently attached to the

Outer Continental Shelf at Mississippi Canyon Block 807,

approximately 130 miles south of New Orleans. The Olympus TLP has

24 well slots and a self-containing drilling rig.

1 Shell Oil Company is an indirect owner of Shell Offshore Inc.;

Shell Oil Company neither owns nor operates the Olympus TLP.

The facts are not in dispute. Shell Offshore contracted with

Helmerich & Payne International Drilling Company in which H&P

agreed to provide personnel to perform drilling, completion, and

other operations in support of the oil and gas development from

the Olympus TLP. Specifically, the parties’ contract obliged H&P

to “furnish PERSONNEL as expressly specified herein, physically

fit, suitably trained, licensed and certified, as applicable and

supervision.” Shell was designated as the “COMPANY” and H&P was

designated as an “Independent Contractor” in which “the actual

performance of the WORK shall be by CONTRACTOR” and “CONTRACTOR

shall take reasonably necessary measures to provide safe working

conditions in connection with the WORK.”

On December 8, 2018, H&P lead roustabout David Hosey was

working the night shift2 on the platform’s third floor warehouse

porch. The tasks to be performed by H&P that night included moving

a washing machine into a shipping container; a task discussed and

performed solely by H&P employees. During a pre-shift meeting

among only H&P employees, the employees discussed the work to be

performed. The washing machine was either on a list of equipment

to be moved that evening, or the direction to move it was given

later by the H&P deck supervisor, Mark Alston, who testified that

2 The night shift started on 6 o’clock p.m. and ended at 6 o’clock

a.m. on December 9.

one Mr. Gomillion was told by Shell that moving the washing machine

was a task that needed to be completed during the particular shift.

The washing machine was located out on the platform’s third

floor warehouse porch, which is a landing area for a crane to place

cargo boxes outside of the third-floor warehouse. Once the cargo

box was placed on the landing area by the H&P crane operator, H&P

deck supervisor Mark Alston testified that he said “[w]hen we get

a chance, we need to put [the washing machine] in that cargo box.

It wasn’t a priority.”3 Hosey and his co-worker, Colby Davis,

ultimately took on the task of moving the “regular white washing

machine”4 into the cargo box. The washing machine, which weighed

more than 50 pounds, was located about 10 feet away from the cargo

box.5

H&P workers adhered to an H&P policy regarding lifting or

moving heavy items. H&P workers were instructed that “one person

should not lift over 50-pounds” and “[i]f [an item] is known to be

over 50-pounds or awkward, too awkward for one person to lift under

50-pounds, you should ask for assistance or use a lifting device.”

Consistent with H&P policy, Hosey and Davis briefly discussed how

they would manually lift and then put the washing machine in the

3 It was Alston’s expectation that the roustabouts would figure

out later who would be lifting the washing machine.

4 It was actually a stackable washing machine-dryer combination

unit.

5 The cargo box, or open-topped pallet box, is a metal box about

4x4x4 with no top and one door that swings open.

box: with one man on either side of the washing machine, they

“leaned the washer back, bent down, grabbed it and put it in the

box.” The cargo box with the washing machine in it was then lifted

by crane to another deck.

H&P deck supervisor Alston had instructed the crew to (but

not how to) put the washing machine in the cargo box and he watched

from the fourth floor as the task was completed. Other than Hosey

recalling that the washing machine was “awkward,” no H&P employee

noted anything out of the ordinary about moving it. It is

undisputed that no one from Shell instructed the H&P crew on how

to move the washing machine. Nor was any Shell representative in

the vicinity when the washing machine was lifted and moved.

A few hours later, Hosey says he felt pain in his lower back.6

Hosey now complains that he did not have access to using a

dolly when moving the washing machine. Hosey admits that he did

not discuss with his co-worker or anyone else the need for a dolly

before moving the washing machine. Nor did his co-worker consider

using a dolly to move the washing machine that night. In fact,

6 Hosey recalled that the washing machine was moved around 10:30

or 11:00 and the first time he felt pain in his lower back was

around “1 or 2 o’clock” or “around 12, 1, somewhere around that

area.”

Hosey and Davis had performed similar manual lifts in the past, as

had other H&P employees.7

A two-wheeled metal dolly was located in the warehouse just

adjacent to the third floor landing area where Hosey and Davis had

moved the washing machine to the cargo box. During the day, the

warehouse is unlocked and managed by Kermit Menard, a material

specialist employed by another Shell Offshore independent

contractor, Danos LLC. Mr. Menard used the dolly “to unload cargo

box materials and carry them inside the warehouse to put them on

the check-in tables.” Mr. Menard “would loan the dolly to anyone

who comes in the warehouse and asks for it,” including H&P

employees. After 6 p.m., however, the warehouse is locked. But

Mr. Menard remained “on-call” to provide access to the warehouse.

After 6 p.m., Mr. Menard could be contacted in three ways: contact

the control room; go to his room, 304 (right next to the entry

hallway for the door to the warehouse); or use the public address

system. “If [Mr. Menard is] up, [he] would answer the PA and open

the warehouse for you.” Neither Hosey nor Davis discussed or

requested or considered getting a dolly to assist in lifting the

washing machine on December 8, 2018. Alston testified that, if a

member of the crew determined that a dolly was needed to perform

7 Hosey stated that he had previously used a dolly to assist in

moving washing machines on prior occasions; he also testified that

he and Mr. Davis had “performed lifts like that in the past.”

a task, he would have expected his crew to wait until a dolly was

located; this included an expectation that someone would “call the

warehouse guy or they get him up.” Whether a dolly was needed or

could be useful was up to the crew members completing the task at

hand.

On April 26, 2019, David Hosey sued Shell Offshore Inc. and

Shell Oil Company, alleging that Shell’s negligence caused his

lower back injury. He seeks to recover for general damages, lost

wages, lost earning capacity, pain and suffering, as well as past

and future medical expenses, and loss of society and services. In

a later amended complaint, David’s wife, Jennifer, brought a claim

against Shell, seeking damages for loss of consortium. The

defendants now seek summary judgment dismissing the plaintiffs’

claims that the defendants’ negligence caused their injuries.

I.

A.

Summary judgment is proper if the record discloses no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. FED. R. CIV. P. 56(a). A dispute is

“genuine” if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if it “might

affect the outcome of the suit.” Id.

The Court emphasizes that the mere argued existence of a

factual dispute does not defeat an otherwise properly supported

motion. See id. Nor do “[u]nsubstantiated assertions, improbable

inferences, and unsupported speculation[.]” Brown v. City of

Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003); Hathaway v.

Bazany, 507 F.3d 312, 319 (5th Cir. 2007)("[T]he nonmoving party

cannot defeat summary judgment with conclusory allegations,

unsubstantiated assertions, or only a scintilla of evidence.").

Therefore, "[i]f the evidence is merely colorable, or is not

significantly probative," summary judgment is appropriate.

Anderson, 477 U.S. at 249-50 (citations omitted).

Summary judgment is also proper if the party opposing the

motion fails to establish an essential element of his case. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also In

re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017)(citation omitted)(If the non-movant will bear the burden of

proof at trial, “the movant may merely point to an absence of

evidence, thus shifting to the non-movant the burden of

demonstrating by competent summary judgment proof that there is an

issue of material fact warranting trial.”). In this regard, the

non-moving party must do more than simply deny the allegations

raised by the moving party. See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he

must come forward with competent evidence, such as affidavits or

depositions, to buttress his claims. Id. Hearsay evidence and

unsworn documents that cannot be presented in a form that would be

admissible in evidence at trial do not qualify as competent

opposing evidence. Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); FED. R. CIV. P. 56(c)(2).

Ultimately, to avoid summary judgment, the non-movant “must go

beyond the pleadings and come forward with specific facts

indicating a genuine issue for trial.” LeMaire v. La. Dep’t of

Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

In deciding whether a fact issue exists, the Court must view

the facts and draw reasonable inferences in the light most

favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372,

378 (2007); Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d

507, 513 (5th Cir. 2018). Although the Court must "resolve factual

controversies in favor of the nonmoving party," it must do so "only

where there is an actual controversy, that is, when both parties

have submitted evidence of contradictory facts." Antoine v. First

Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation

marks and citation omitted).

B.

It is undisputed that federal jurisdiction is predicated on

the Outer Continental Shelf Lands Act (OSCLA), 43 U.S.C. § 1331,

et seq.8 Absent from the papers is any discussion supporting the

parties’ assumption that Louisiana law governs this OCSLA case,

notwithstanding the Supreme Court’s recent pronouncements on the

subject. See Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S.

Ct. 1881 (2019).

The OCSLA “gives the Federal Government complete

‘jurisdiction, control, and power of disposition’ over the [outer

Continental Shelf], while giving the States no ‘interest or

jurisdiction’ over it.” Parker Drilling, 139 S. Ct. at 1888-89

(quoting 43 U.S.C. §§ 1332(1), 1333(a)(3)). Under the OCSLA,

federal law applies to the outer Continental Shelf “to the same

extent as if the outer Continental Shelf were an area of exclusive

Federal jurisdiction located within a State.” 43 U.S.C. §

1333(a)(1). So, “the only law on the [outer Continental Shelf] is

federal law, and state laws are adopted as federal law only ‘to

the extent that they are applicable and not inconsistent with’

federal law.” Parker Drilling, 139 S. Ct. at 1889 (quoting 43

8 The Outer Continental Shelf Lands Act established the Outer

Continental Shelf as a federal enclave. 43 U.S.C. § 1333(a)(1).

In so doing, Congress broadly conferred on the federal courts

jurisdiction to hear claims arising out of or related to oil

production on the Outer Continental Shelf. Id. at § 1349(b);

Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir.

2013)(The OCSLA “asserts exclusive federal question jurisdiction

over the OCS by specifically extending ‘[t]he Constitution and

laws of the civil and political jurisdiction of the United

States...[to the OCS].”).

U.S.C. § 1333(a)(2)(A))(internal brackets omitted). State law is

“applicable and not inconsistent with” federal law “only if federal

law does not address the relevant issue.” Parker Drilling, 139 S.

Ct. at 1889.

Here, the parties assume that Louisiana law applies as

surrogate federal law. Mr. Hosey’s alleged injuries occurred on

a fixed platform in federal waters on the Outer Continental Shelf.

Once OCSLA jurisdiction is established, as it is here, the Court

generally turns to the statute’s choice of law provision to

determine the law applicable to particular claims. For the

purposes of resolving this motion, the Court assumes as the parties

do that Louisiana law governs the question of Shell’s negligence

because federal law does not address the issue. See Parker

Drilling, 139 S. Ct. at 1889.9

II.

First, the Court takes up Shell Oil Company’s submission that

summary judgment in its favor is warranted because it neither owned

nor operated the Olympus TLP. The Court agrees. The plaintiff

offers no evidence to controvert the defendants’ evidence

9 Cf. 28 U.S.C. § 5001(b)(“In a civil action brought to recover on

account of an injury sustained in a place [subject to the exclusive

jurisdiction of the United States within a State,] the rights of

the parties shall be governed by the law of the State in which the

place is located.”).

demonstrating that Shell Oil Company owed no duty to the plaintiffs

because it neither owned nor operated the Olympus TLP. Summary

judgment in favor of Shell Oil Company is thus appropriate.

Second, Shell Offshore submits that it is entitled to judgment

as a matter of law because, as a principal, it maintained no

operational control over and thus owed no duty to H&P employee Mr.

Hosey. Even if he can show that Shell Offshore owed a duty as a

matter of law or contract, no such duty was breached. The

plaintiffs counter that Shell Offshore was independently (not

vicariously) negligent insofar as it owed a duty to provide

unfettered access to dollies so that H&P could opt for the safest

method of performing its work. The parties’ positions implicate

overlapping negligence principles. Mindful that the touchstone of

all negligence claims is reasonableness -- not perfection -- the

Court considers the scope of a principal like Shell’s duty to

independent contractors first and then the source and scope of any

independent duty owed.10

10 The plaintiffs insist that the independent contractor defense

is inapplicable here. The Court disagrees. The defense and its

attendant inquiry into operational control is essentially a

specific jurisprudential gloss on the Louisiana Code’s general

negligence principle. Even if the defense has no application where

the plaintiff -- for whatever reason -- chooses not to sue his

employer (that is, where the issue of vicarious liability

technically is not placed at issue by the plaintiff), the

defendants are entitled to judgment as a matter of law on the

issue. Ultimately, the plaintiffs fail to carry their burden on

A.

When an employee of an independent contractor injured while

working on an offshore oil platform sues the principal/platform

owner, the platform owner may invoke the independent contractor

defense. “It is well established that a principal is not liable

for the activities of an independent contractor committed in the

course of performing its duties under the contract.” Davis v.

Dynamic Offshore Resources, 865 F.3d 235, 236 (5th Cir.

2017)(quoting Bartholomew v. CNG Producing Co., 832 F.2d 326, 329

(5th Cir. 1987)). There are two exceptions to this general rule.

A principal is not shielded from liability if (1) the activities

which it contracts out to an independent contractor are

ultrahazardous; or (2) the principal “exercises operational

control over those acts or expressly or impliedly authorizes an

unsafe practice.” Bartholomew, 832 F.2d at 329 (holding that there

was some evidence to support the jury’s finding that the principal

was 30% at fault, given that the principal’s company man expressly

authorized an unsafe work practice, that is, failing to wash down

the rig floor which eventually caused Bartholomew to slip and twist

his back on the muddy rig floor).

each essential element of their negligence claim no matter their

theory.

To establish liability of a principal where there is no

ultrahazardous activity,11 then, the inquiry is whether there is

any evidence that the principal exercised operational control over

its independent contractor or expressly or impliedly authorized

the unsafe practice which caused the injured worker’s injuries.

There is no evidence that Shell exercised operational control over

H&P or that it expressly or impliedly authorized the method H&P

chose to move the washing machine.

Here, H&P elected the method or manner its crane crew would

use to move the washing machine. The record indicates that H&P

policy dictated that awkward items or items weighing more than 50

pounds called for a two-person manual lift or the assistance of

equipment. Lead roustabout Hosey and his co-worker Davis proceeded

with a two-person manual lift. There is no evidence that Shell

played any role in the movement of the washing machine, or that it

decided how the washing machine should be moved, or that it

authorized an unsafe working condition. “If ‘work is done in an

unsafe manner, the [principal] will be liable if he has expressly

or impliedly authorized the particular manner which will render

11 Lifting a washing machine, which can be accomplished safely when

proper precautions are used, does not qualify as an ultrahazardous

activity. See Ainsworth v. Shell Offshore, Inc., 829 F.2d 548,

549 (5th Cir. 1987)(pile driving, storage of toxic gas, blasting

with explosives, and crop dusting are examples of ultrahazardous

activities).

the work unsafe, and not otherwise.’” Davis, 865 F.3d at 236-237

(citation omitted, emphasis in original).

Where there is an absence of evidence that a principal

exercised operational control or otherwise authorized an unsafe

working condition that led to a worker’s injury, the case

literature is replete with examples of summary judgment being

granted in the principal’s favor. In Davis v. Dynamic Offshore

Resources, L.L.C., 865 F.3d 235 (5th Cir. 2017), for example, the

Fifth Circuit affirmed the grant of summary judgment by the

district court in favor of a principal. There, Davis, a crane

mechanic employed by an independent contractor was allegedly

injured during a personnel basket transfer to the principal’s

platform. The summary judgment record demonstrated that the

principal ordered that the crane winch be replaced on a particular

platform, but Davis postponed replacing the winch due to safety

concerns related to wind. Id. at 235-36. Davis nevertheless

decided to inform the principal’s foreman on another platform by

being transported to that other platform by personnel basket. Id.

at 236. During the transfer, Davis was injured. Id. Because the

principal did not order Davis to make a personnel basket transfer

in high winds -- that was Davis’s call -- the principal did not

authorize an unsafe working condition that caused Davis’s injury,

making summary judgment appropriate. Id. at 236-37.

And Shell invokes Offord v. L&W Supply Corp., 358 Fed.Appx.

540 (5th Cir. 2009), where the Fifth Circuit in an unpublished

opinion affirmed the district court’s grant of summary judgment in

favor of a principal. Truck driver Offord was injured when he

slipped and fell off the trailer bed of an 18-wheeler while

removing a tarp covering a load of sheetrock. Id. at 542. The

sheetrock was being delivered to a customer, Seacoast, whose

employees were responsible for offloading the sheetrock once the

tarp was removed from the truck. Id. Offord sued Seacoast for,

among other things, failing to provide equipment that would have

prevented his fall. Applying the general rule that a principal is

not liable for the acts of an independent contractor, the district

court granted Seacoast’s motion for summary judgment, and the Fifth

Circuit affirmed its finding that Offord “decided how to remove

the tarp” and “no one forced or directed him to climb on the load

or did anything that caused him to be on the load.” Id. at 542-

43. The Fifth Circuit also rejected the plaintiff’s claim that

Seacoast had a duty to provide fall protection equipment; no duty

existed and summary judgment was appropriate because there was no

evidence that Seacoast “controlled or actively supervised [the

plaintiff’s] work.” Id. at 543.

Like Davis and Offord, Hosey along with his co-worker decided

in the moment how H&P would perform the task of moving the washing

machine. In opting for a two-worker manual lift, this task was

accomplished consistent with H&P policy. No one at Shell directed

Hosey or H&P regarding the method or manner to use in moving the

washing machine 10 feet into the cargo box.

Rather than identifying facts indicating operational control

by Shell, Hosey says the defense is not relevant because he opted

not to sue H&P or otherwise pursue a theory of vicarious liability.

Hosey thus does not appear to dispute that Shell lacked operational

control over H&P in moving the washing machine. Hosey’s negligence

theory focuses instead on Shell’s policy that the warehouse was

locked at night: “By prohibiting access to the dollies for

Plaintiff and the rest of the H&P nighttime crew,” the plaintiff

argues, “Shell created a hazard and failed to ensure that the

operation of lifting and moving the washing machine on the night

of December 8, 2018 could be executed in the safest possible

manner.”

Broadly construing Hosey’s negligence theory, he suggests

that Shell’s policy hindering access to dollies at night impliedly

authorized or dictated a two-person manual lift (a method condoned

by H&P, which Hosey perplexingly does not suggest is unreasonably

hazardous) to the exclusion of using a dolly. The summary judgment

record does not support Hosey’s theory of negligence. Without

citation to the summary judgment record, plaintiff’s counsel

argues that the crane crew had no access to the dollies at night

and this is the reason why the plaintiff did not consider using

one. This is an unsubstantiated assertion. Stopping short of

saying he opted not to use a dolly on December 8, 2018 because he

did not think he could retrieve one, the record shows that H&P

workers faced with lifting heavy items routinely adhered to H&P’s

policy of lifting with their legs and either using two workers or

the assistance of a dolly. The plaintiff’s generalized testimony

that he would not have considered waking up the warehouse manager

unless it was an emergency does not itself create a genuine dispute

concerning whether dollies were reasonably available for use or,

critically, whether he asked for one or considered using one on

the night he claims he was injured. The plaintiff identifies no

material facts that would create a genuine dispute about Shell’s

lack of operational control over the methods H&P used to complete

its assigned tasks.

In this case, though, by abandoning any operational control

theory of liability, Hosey likewise seems to reject the theory

that the two-worker lift method was an unsafe practice which caused

his injury. This is perplexing. Hosey’s argumentative gymnastics

do not defeat Shell’s properly supported motion for summary

judgment. Insofar as the plaintiffs rely completely on a theory

of independent principal liability, the considerations that

preclude a finding of operational control (and by extension

vicarious liability) also compel the conclusion that Shell did not

owe an independent duty to H&P employees based on the terms of the

contract; even if it did, the duty was not breached. The Court

now turns to consider this independent negligence theory.

B.

“[E]ven though the general rule shields a principal from the

acts of its independent contractor that do not fall within the

[two referenced] exceptions, the principal remains liable for its

own acts of negligence.” Graham v. Amoco Oil Co., 21 F.3d 643,

645 (5th Cir. 1994)(citations omitted). The same considerations

that preclude a finding of operational control also compel the

conclusion that Shell did not owe an independent duty to H&P’s

employees. Hosey fails to demonstrate an issue of material fact

as to whether Shell is liable under Article 2315 because on this

record as a matter of law Shell owed no independent duty to Hosey;

even assuming, for the sake of argument, that it owed an

independent duty, the duty was not breached (nor does the record

suggest that any breach caused Hosey’s injury).

Civil Code Article 2315, Louisiana’s source of negligence

liability, instructs that “[e]very act whatever of man that causes

damage to another obliges him by whose fault it happened to repair

it.” LA. CIV. CODE art. 2315(A). "Every person is responsible for

the damage he occasions not merely by his act, but by his

negligence, his imprudence, or his want of skill." LA. CIV.

CODE art. 2316. Taking into account the conduct of each party and

the circumstances of each case, courts employ a duty-risk analysis

to determine whether to impose liability based on these broad

negligence principles. Lemann v. Essen Lane Daiquiris, Inc., 2005-

1095, p. 7 (La. 3/10/06); 923 So. 2d 627, 632.

To recover under the duty-risk approach, the plaintiffs must

prove five elements: (1) the defendants had a duty to conform their

conduct to a specific standard; (2) the defendants' conduct failed

to conform to the appropriate standard; (3) the defendants'

substandard conduct was cause in fact of the plaintiffs’ injuries;

(4) the defendants' substandard conduct was a legal cause of the

plaintiffs’ injuries; and (5) actual damages. Audler v. CBC

Innovis, Inc., 519 F.3d 239, 249 (5th Cir. 2008)(citation omitted).

If the plaintiffs fail to prove one of these elements, then the

defendant is not liable.

Whether a defendant owes a duty and the scope of any duty is

a question of law that varies “depending on the facts,

circumstances, and context of each case and is limited by the

particular risk, harm, and plaintiff involved.” Dupre v. Chevron

U.S.A., Inc., 20 F.3d 154, 156-57 (5th Cir. 1994)(citations

omitted). When an employee of an independent contractor alleges

that the relationship between a platform owner and its employer

creates an independent duty of care on the part of the platform

owner, the Court first looks to the terms of the contract between

the owner and the independent contractor. See Graham, 21 F.3d at

647 (citation omitted).

Here, the parties’ contract obliged H&P to “furnish PERSONNEL

as expressly specified herein, physically fit, suitably trained,

licensed and certified, as applicable and supervision.” Shell was

designated as the “COMPANY” and H&P was designated as an

“Independent Contractor” in which “the actual performance of the

WORK shall be by CONTRACTOR” and “CONTRACTOR shall take reasonably

necessary measures to provide safe working conditions in

connection with the WORK.” In support of its independent

negligence theory, the plaintiff points to Shell’s obligation to

provide to H&P certain items like “hand tools”; Hosey concludes

that this obliged Shell to provide dollies to platform workers.

Hosey does not identify any provision that allows Shell to control

the manner or method of H&P’s work. Hosey does not dispute that

H&P’s own general policy permitted manual lifts by two people when

moving something that weighed more than 50 pounds.

Shell submits that it had no duty to offer unfettered access

to dollies on its platform. Considering the facts, circumstances,

and context of this case including the particular risk, harm, and

plaintiff involved, the Court agrees.

The duty Hosey implores the Court to find as a matter of law

and impose upon Shell is the duty to provide unfettered access to

dollies. Hosey contends that Shell created a hazard by failing to

ensure that lifting and moving the washing machine could be

performed in the “safest possible manner.” Hosey’s position

ignores the context of this case in which Shell as principal owed

a duty to provide a reasonably safe platform and H&P as independent

contractor owed a duty to perform and supervise the reasonably

safe performance of the work. The record shows that H&P considered

it reasonably safe for two workers to perform a lift of heavy items

like the washing machine. Shell did not direct Hosey or H&P to

lift the washing machine in a particular way. In this regard, the

alleged hazard identified by the plaintiff (the manual lift of

heavy equipment) was not a hazard created by Shell; if it was a

hazard, it was permitted and condoned by H&P. The Court finds

that under the circumstances, including the particular risk and

the potential harm addressed by H&P’s own policy and custom, Shell

owed no particular duty to provide the safest possible method for

lifting heavy items. To be sure, in an analogous context, “[i]t

is well established that [c]ourts do not require a principal to

discover and correct unsafe loading procedures performed by

independent contractors.” Iglesias v. Chevron U.S.A. Inc., 656 F.

Supp. 2d 598, 602 (E.D. La. 2009).

Even assuming that Shell owed a contractual or ex contractual

duty to provide equal dolly access to daytime and nighttime crews,

Shell submits that it did not breach the duty. Again, the Court

agrees. To be sure, a platform owner must take reasonable steps

to ensure a safe working environment. Dupre, 20 F.3d at 157

(emphasis added). The record indicates that Shell’s policy of

locking the warehouse from 6 p.m. to 6 a.m. did not render all

dollies inaccessible; rather, it merely required that anyone

opting to use a dolly must first contact the warehouse manager or

find the other key in the control room.12 That there may have been

an extra hurdle to retrieve (or a delay in retrieving) a dolly

during the night shift does not render either dollies inaccessible

or the platform unsafe.13

In opposing summary judgment, the plaintiff argues that Shell

“preclud[ed] Plaintiff’s ability to obtain a dolly to assist in

completing the operation safely” and that the plaintiff “did not

utilize a dolly on the night of the incident because Shell

prevented them from having access to one.” But the plaintiff’s

12 Even during day shifts, the record indicates that anyone seeking

out a dolly either found one around the platform or asked the

warehouse manager for permission to use the dolly located there.

13 H&P Deck supervisor Mark Alston, who observed Hosey and Davis

performing the lift, testified that “[i]f the crew...decided that

they needed a dolly to move the washing machine,” he “expected

them to wait until we got a dolly down there or we got some more

people down there to look at the job.” With respect to how to get

a dolly at night, Alston testified that he “hope[ed] they have one

unlocked” and if he cannot find one unlocked, then “to wait” or,

if something is needed from the warehouse at night, “[w]e call the

warehouse guy or they get him up.”

hindsight negligence theory fails to withstand summary judgment

practice and procedure. Again, even assuming that Shell owed a

duty to provide unfettered access to dollies, the plaintiff fails

to identify material facts in the record that create a genuine

dispute on the issue of breach. Although the plaintiff indicated

that he would not have woken up the warehouse manager unless it

was an emergency, nowhere in the record are there facts to support

the plaintiff’s argument that, on the night of December 8, 2018,

he did not use a dolly because he was barred access to one.

It is the plaintiffs’ burden to establish that Shell owed a

duty under Louisiana law to provide its independent contractor

with unrestricted access to equipment on a platform even if the

equipment is not requested or considered by the employees in the

performance of their work. It is likewise plaintiffs’ burden to

establish that Shell breached any such duty. They have failed to

satisfy either burden. The plaintiffs have failed to provide the

Court with any legal authority or contested issue of material fact

to suggest that a platform owner somehow exposes an independent

contractor to an unsafe work environment when that contractor

performs its work without even asking for or seeking equipment

they know is on the platform. There is no evidence offered to

suggest that H&P was prohibited from accessing dollies on the

platform. The record shows that Shell provided reasonable (though

perhaps imperfect) access to the third floor warehouse to anyone

who requested that access.14 No facts support the plaintiffs’

theory that access was prohibited on December 8, 2018.

Parsing Hosey’s theory that Shell was independently negligent

in not providing unfettered access to dollies at night, there is

no evidence substantiating his attorney’s argument that Hosey did

not seek to utilize a dolly because they were unavailable for use

on the night shift. Davis testified that on the night of December

8, 2018, he did not consider looking for a dolly to assist in

lifting the washing machine. Hosey similarly stated that he did

not explicitly request a dolly or consider trying to find one to

assist in moving the washing machine:

Q. Before lifting the washing machine, had you discussed

with Mr. Davis how you two anticipated moving the washing

machine into the box?

A. I did.

Q. And what did you discuss?

A. That we was going to just lean it back and he grabbed

one side, I grabbed the other and put it into the box.

14 Viewing the facts in the light most favorable to Hosey, Shell’s

nighttime lock down policy made it moderately more difficult to

retrieve a dolly, considering that workers -- night or day --

generally had to go ask the warehouse manager for permission to

use his particular dolly. But the undisputed evidence also

indicates that it was possible to contact the warehouse manager at

night or retrieve a key from the control room, and that it was

“expected” by H&P if workers deemed using a dolly necessary.

Hosey’s submission that, in theory, he would not have contacted

the warehouse manager at night unless it is an emergency is an

abstract observation where summary judgment procedure mandates

concrete facts to defeat a properly supported motion.

Q. Have you and Mr. Davis performed lifts like that in

the past?

A. We have.

...

Q. Did anyone from Shell give you any instructions on

how to move the washing machine from the deck into the

box?

A. No.

Q. Did you speak to anyone other than Mr. Davis in terms

of assistance or help in terms of moving the washing

machine from the deck into the box?

A. No.

...

Q. Does H&P, your employer, have any policies or

procedures in terms of lifting equipment like the

washing machine?

A. Just lift with your legs and not your back, two

people over fifty pounds.

Q. And I gather the last part of your response is that

H&P’s rules are that if a piece of equipment is over

fifty pounds, there must be two people picking it up?

A. Right.

...

Q. Prior to lifting the washing machine, did you

communicate with anyone from H&P or otherwise, regarding

equipment needed to move the washing machine?

A. No.

...

Q. And those occasions in the past when you’ve used the

dolly, how do you have access to it?

A. Just knock on the door and ask the warehouse guy can

you use his dolly?

...

Q. Have you ever needed the use of a dolly and there

wasn’t one available in the warehouse?

A. No.

Q. On the evening of December 8 of 2018, did you and

Mr. Davis discuss the need for a dolly?

A. No.

Q. Did you discuss...with anyone else the need for a

dolly before you and Mr. Davis picked up the washing

machine?

A. No.

...

Q. Was Mr. Austin available to you by radio in the event

that you and Mr. Davis concluded that you needed a dolly

in order to move the washing machine?

A. Yes.

Hosey’s own testimony does not support his litigation theory.

Hosey’s negligence theory is anchored to a hindsight assertion

that is nowhere to be found in the summary judgment record: Hosey

argues that Shell should have ensured that dollies would be as

accessible during the night shift as they were during the day shift

so that lifts could be completed in the safest possible manner.

Absent from the record is any statement by Hosey or any H&P

employee, or any other evidence, that before the washing machine

was moved, H&P determined that the two-worker manual lift was

unsafe, or that a dolly was needed, but that they had to proceed

without one because they lacked access to one.

Hosey’s testimony is consistent with other evidence in the

summary judgment record: two workers sharing the 50+ pound load

and lifting with their legs was what H&P required. Even indulging

Hosey’s negligence theory that Shell nevertheless owed a duty to

provide H&P unfettered access to equipment H&P may opt to use,

there is no evidence of breach (or if indulging argument, hindering

access to a dolly constitutes breach, there is no legal causation

evidence). That Hosey in theory would not want to disturb the

warehouse manager after hours is not material to the issue of

whether a dolly could be located and used on that night or whether

he considered finding or waiting for one. Alston testified that

if a dolly was needed or it was deemed unsafe to lift something

with only two people, then the task should wait, or the warehouse

manager should be contacted. Even if Shell had a duty to ensure

that its independent contractor only performed its duties in the

safest possible manner (instead of deferring to its contractor’s

discretion of proceeding in a reasonably safe manner), there is no

indication in the record that the decision to manually lift the

dolly was made by Shell or that H&P elected to proceed manually

solely because Hosey and H&P believed that it could not retrieve

a dolly.15

15 There is no dispute in the record that it was H&P that determined

whether a two-man manual lift would be performed or whether a dolly

would be used. Putting a finer point on it, the summary judgment

In conclusion, Hosey offers no evidence that restricted

access to a dolly dictated his and Davis’s decision to manually

lift the washing machine. Whether framed as a failure to prove

duty, breach, or causation, Hosey’s theory of recovery is that

Shell should have provided the same access to dollies during the

night shift as it did during the day shift. A hindsight theory of

negligence is not a substitute for evidence. Hosey’s personal

injury claim against Shell calls for speculation layered upon a

contingency that did not come to pass because, as the record

indicates, neither he nor his co-worker nor the deck supervisor

tried to (or considered trying to) locate a dolly to perform the

task; a task that according to H&P policy could be performed in a

reasonably safe manner manually by two workers. Just like a

principal is generally under no duty to “correct unsafe loading

procedures performed by independent contractors,” Iglesias, 656 F.

Supp. 2d at 602, Shell had no duty to provide unfettered access to

equipment that its independent contractor may or may not choose to

use in completing its work. Nor did it breach any such duty as

the record confirms. Summary judgment in Shell Offshore’s favor

is warranted. See Oliver v. Scott, 276 F.3d 736, 744 (5th Cir.

2002) (“Conclusional allegations and denials, speculation,

improbable inferences, unsubstantiated assertions, and legalistic

record indicates that not one H&P employee considered attempting

to retrieve a dolly to complete the washing machine lift at hand.

argumentation do not adequately substitute for specific facts

showing a genuine issue for trial.”).

Finally, because Mrs. Hosey’s claims are derivative of her

husband’s,16 summary judgment in Shell’s favor is likewise

warranted dismissing her claims.

***

Summary judgment in both defendants’ favor is patently

appropriate. The plaintiffs have failed to persuade the Court

that Shell Oil Company owned or operated the platform or that Shell

Offshore Inc. owed Hosey a duty (or, if it did owe one, that it

breached one, or that the breach caused his back injury). Hosey’s

hindsight speculation that if it had been easier to obtain a dolly

that night, he would not have been injured fails to bridge the

evidentiary gap created in part by the undisputed fact that the

method chosen by the H&P employees on December 8, 2018 aligns with

general H&P policy and custom that a two-person manual lift is a

reasonably safe method for lifting heavy or awkward items. Because

there is no genuine controversy as to any material facts to be

resolved at trial, the defendants are entitled to judgment as a

matter of law.

16 Ferrell v. Fireman’s Fund Ins. Co., 96-3028 (La. 7/1/97), 696

So.2d 569, 576.

Accordingly, IT IS ORDERED: that the defendants’ motion for

summary judgment is GRANTED, and the plaintiffs’ claims are

dismissed with prejudice.

New Orleans, Louisiana, October 14, 2020

MARTIN . C. ELDMAN

UNITED STATHS DISTRICT JUDGE

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