Petition — Bossard v. Exxon Corp.

#~ Supreme Court, U. S$,

[ FILED

JAN 23 1978

{

IN THE SUPREME COURT OF THE UNI JEDMIGAAELERDpaAK, JR. CLERK

OCTOBER TERM, 1977

"REA1059

ELLA WEESE WATSON BOSSARD, ET AL

Plaintiff-Petitioner

VERSUS

EXXON CORPORATION

Defendants-Appel lees

THE PETITION OF ELLA WEESE WATSON

BOSSARD, ET AL FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

John F. McKay

CAVE, McKAY & POIRIER

7465 Exchange Place

Baton Rouge, Louisiana 70806

(504) 924-3641

Page

OPINIONS BELOW 1

JURISDICTION 1

QUESTIONS PRESENTED 2

STATUTORY PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 4

ARGUMENT 7

CONCLUSION 15

CERTIFICATE 16

APPENDIX

Appendix A - Court Opinion 17

Appendix B - Denial 21

Appendix C - Minute Entry-Dis-

missal 22

Appendix D - Motion to Dismiss

for Failure to State

a Claim 23

Appendix E - Minute Entry

Pre-trial 25

Appendix F - Clerks Dismissal — 26

Appendix G - Restatement of

Torts 2d (1965) 27

CITATIONS

Cases

1.

10.

11.

Brown v. Ivarans Rederi, A/S,

545 F.2d 854 (3rd Cir., 1977)

. Brown v. Mitsubishi Shintaku Ginko

550 F.2d 331 (5th Cir. 1977)

. Eutsler v. United States

376 F.2d 634 (10th Cir., 1967)

. Fitzgerald v. Compania Naviera

La Molinaro, 394 F.2d 402

(E.D.LA.. 1975)

. Gay v. Ocean Transport and

Trading, Ltd., 546 F.2d 233

(5th Cir. 1977)

. Giarrantano v. Weitz Company

259 Iowa 1292, 147 N.W. 2d 824

. Gulf 011 Corp. v. Bivins, 276

F.2d 753, 756-758 (5th Cir.)

. Hagberg v. City of Sious Falls

281 F. Supp. 460 (D.C.S.D.)_

. Halecki v. United New York. N.

J. Sandy Hook Pilots Assoc., 302

F.2d 840 (2nd Cir.) —

Herron v. Herron, 255 F.2d

589 (5th Cir. 1958)

Hess v. Mississippi Towing

Corp., 559 F.2d 1030 (5th Cir.

1977) 9,10,12,17,18,22,25

ij

1]

13

8,19

1]

19

1]

oo

‘oO

12.

+3.

14.

15.

16.

17.

Kermarec v. Compagnie Generale

Transatlantique, (1957) 358 U.S.

625, 79 Supreme Court 406

Lindler v. District of Columbia,

164 U.S.App. D.€.35,502 F.2d 495

Parson v. Amerada Hess Corp.

422 F.2d 610 (10th Cir. 1970)

Uglem v. Foss Launch & Tug Co.

541 F.2d 1378 (9th Cir. 1976)

Woolen v. Aerojet General Corp.,

57 Cal. 2d 407, 20 Cal Rptr

12,369 P.2d 708

Wright & Miller, Federal Practice

Procedure, 1366 & n. 67 (1971)

iii

Page

2,7,8

11,12

17

17

1]

Statutes

1.

z-

28 U.S.C. 1254 (1)

33 U.S.C. & 905

Restatement of Torts 2d - 1965

1.

Section 41] - Negligence in

Selection of Contractor

Section 413 - Duty to Pro-

vide for Taking of Pre-

cautions Against Dangers

involved in Work Entrusted

to Contractor

Section 416 - Work Dangerous

in Absence of Special Pre-

cautions

Section 423 - Making or

Repair of Instrumentalities

Used in Highly Dangerous

Activities

Section 427 - Negligence as

to Danger Inherent in the

Work

Viii

4,9,10

4,9,10,12

4,9,10,13,14

4,9,10

4,9,10,13,14

OPINIONS BELOW

The opinion of the United States Fifth Circuit

Court of Appeals, rendered September 23, 1977, and

appearing at 559 F.2d (5th Cir. 1977), is re-

printed as Appendix A herein. The petition for re-

hearing which was denied on October 25, 1977, is

reprinted as Appendix B. The judgment of the United

States District Court, Middle District of Louisiana,

granting defendants-appellees' motion to dismiss for

failure to state a claim on the 2°th day of December,

1975, is reprinted as Appendix F.

JURISDICTION

The opinion and judqment of the United States

Fifth Circuit Court of Appeals for which this Writ

of Certiorari is sought were rendered on September 23,

1977.

An order denying a rehearing was rendered by the

Court on October 25, 1977.

The jurisdiction of this court over this petition

for certiorari is set out by 28 U.S.C. 1254 (1), which

permits review by the United States Supreme Court to

any party by writ of certiorari.

olin

STATUTORY PROVISIONS INVOLVED

QUESTIONS PRESENTED

1. 33 U.S.C. & 905

Should the principles of maritime negligence eh ae ;

(a) The liability of an employer pvrescribed in

espoused in Kermarec v. Compagnie Generale section 4 shall be exclusive and in place of al]

a : ; other kiability of such employer to the employee,

Transatlantique (1957) 358 U.S. 625, 79 Supreme his legal representative, husband or wife, parents,

° dependents, next of kin, and anyone otherwise

Court 496 be applied in a 905 (b) action? entitled to recover damages from such employer at

| law or in admiralty on account of such injury or

If maritime negligence is rejected and land-based death, except that if an employer fails to secure

payment of compensation as required by this Act,

principles of law are applicable in a tort claim an injured employee, or his legal representative |

in case death results from the injury, may elect

under 905 (b), should all of the Restatement of to claim compensation under the Act, or to maintain.

an action at law or in admiralty for damages on

Torts 2d, 2 411, 413, 416, 423 and 427 be applied? account of such injury or death. In such action

. the defendant may not plead as a defense that the

Should principles of strict liability be applied injury was caused by the negligence of a fellow

servant, or that the employee assumed the risk of

in cases involving 905 (b)? his employment, or that the injury was due to the

contributory negligence of the employee.

Should the defendant, Exxon, have been granted

(b) In the event of injury to a person covered

their motion to dismiss for failure to state a | under this Act caused by the negligence of a

vessel, then such person, or anyone otherwise

claim? entitled to recover damages by reason thereof,

may bring an action against such vessel as a third

party in accordance with the provisions of section

33 of this Act, and the employer shall not be

liable to the vessel for such damages directly or

indirectly and any agreements or warranties to the

contrary shall be void. If such person was employed

by the vessel to provide stevedorina services, no

such action shall be permitted if the injury was

, caused by the negligence of persons engaged in

providing stevedoring services to the vessel. If

such person was employed by the vessel to provide

ship building or repair services, no such action

shall be permitted if the injury was caused by

the negligence of persons engaged in providing

ship building or repair services to the vessel.

-*

The liability of the vessel under this subsection

shall not be based upon the warranty of seaworthiness

or a breach thereof at the time the injury occurred.

The remedy provided in this subsection shall be

exclusive of all other remedies against the vessel

except remedies available under this Act.

Restatement of Torts 2d 8 411, 413, 416, 423 and

427 are presented as Appendix G.

STATEMENT OF THE CASE

On January 5, 1975, Donald Bossard, who was employed

by Port Allen Marine, at its plant on the east side of the

Mississippi, three (3) miles below Louisiana State University

at Baton Rouge, died as a result of asphyxiation on the Exxon

Barge 217, which was owned by the defendant, Exxon. The

barge was carrying a load of Exxon Extra in compartments

one (1) through five (5); 115 aviation gasoline in six,

seven and eight and 100 aviation gasoline in compartment

nine, (the one where Donald Bossard met his death). The

Exxon 217 had been sent to Port Allen Marine to be

gas-freed and cleaned preparatory to it being dry docked

for Coast Guard inspection and repairs.

The defendant, Exxon and Port Allen Marine had entered

into a contract, allegedly written on October 15, 1974, in

which Port Allen Marine was, from time to time required to

-4-

clean and gas-free Exxon's barges. A telephone call

was all that was needed in order for Exxon to _

one of its barges to Port Allen Marine for it to be

cleaned. Exxon did not supervise Port Allen Marine

or instruct them in any way concerning the manner in

which Port Allen Marine cleaned the barges, however

Exxon employees sometimes did visit the Port Allen

Marine plant during the gas-freeing operation and

had experience in gas-freeing some of its own barges.

Also in the instant case, Exxon had an employee

wearing two hats. Joseph Labauve was employed by

Exxon as a chemist and also by Delta Laboratories,

a corporation that gas-freed barges at the Port Allen

dock. Tom Wolfe, the owner of Port Allen Marine, also

was part owner of Delta Laboratories. Labauve ‘had been

at the Port Allen Narine dock at numerous occasions

during gas-freeing operations and it goes without

Saying that Exxon had corporate knowledge of the

activities at Port Allen Marine.

On the day in question, a Sunday, Bossard had

reported to work about 8:30 or 9:00 o'clock A.M. The

.*

crew was working short-handed that morning and though

there was a rule that men were suppose to stay on top

of a hole when a man was down in a compartment.

was not the case that morning.

This

In fact, another employee

was overcome by gas in compartment number five around

10:00 A.M. and he was rushed to the hospital.

No one

advised Bossard nor was he checked upon until his

body was found at approximately 12:90 o'clock noon on

that day. Between 10:00 and 12:00 o'clock, the super-

visor at Port Allen Marine went and had coffee with

some of the employees at a location remotely located

from Exxon 217 even though he knew that his crew was

shorter since two men had taken the emplovee who was

overcome to the hospital.

The testimony in the

depositions show that this tyne of activity occurred

all the time at Port Allen Marine and there is no

doubt that Exxon, through Joseph Labauve, had con-

structive knowledge of the events occurring at Port

Allen Marine.

ARGUMENT

PRINCIPLES OF MARITIME NEGLIGENCE SHOULD BE

APPLIED IN SECTION 905 (b)

Plaintiff submits that the term negligence as used

in & 905 (b), is not limited to ordinary negligence

and its usage should include vicarious and strict

liability. Plaintiff also urges that the court

should follow the principles of maritime negligence

as stated in Kermarec v. Compagnie Generale Trans-

atlantique (1959) 358 U.S. 625, 79 Supreme Court

496, where the court stated that the duty owed was

"the exercise of reasonable care under the cir-

cumstances in each case". Jiis of course, is the

strongest principle in ordinary negiigence and

would include vicarious and strict liability.

Though the legislative history of & 905 (b) is

intended to limit actions against the ship owner

and eliminate strict liability, one of the principle

considerations of the legislative history was employee

safety. Up to this time, employee safety has been

given little consideration and the application of the

term "negligence" as stated in the legislative history.

- %

makes the shipowner look the other way. The

principle. in Kermarec is by far the better rule

to be applied in this case and other cases under

2 005,

Though the Fifth Circuit in Gay v. Ocean Transport

and Trading, Ltd., 546 F.2d 233 (5th Cir.1977)

allows only the application of land-based principles

of negligence, it is in conflict with another

decision. In Brown v. Ivarans Rederi, A/S, 545 F.2d

854 (3rd Cir., 1977), the court held that "principles"

of the law of negligence as adopted in the admiralty

field during the history of our court" may be

applicable in a 905 (b) action. It is therefore

necessary for this court to resolve the difference

between circuits to determine which principle of

negligence applies.

Likewise, plaintiff submits that there is a duty to

provide a safe place to work and that this duty should

be extended to protect an employee of an independent

contractor, Halecki v. United New York, N.J. Sandy

aie

Hook Pilots Association, 302 F.2d 840 (2nd Cir.),

certiorari denied, 371 U.S. &25, S.Ct. 46, OL.

Ed. 2nd. 64 (1962).

The court in Hess v. Mississippi Towing Corporation,

559 F.2d 1030 (5th Cir. 1977), (companion suit to

instant case), decided that neither Bossard or Hess

was owed a duty by the ship owner to provide a safe

place to work because Halecki, supra, did not apply.

Plaintiff states that the ship owner and Halecki

appeared to have no more control than the defendant

in the Exxon case. Also, here Exxon had an employee

wearing two hats and had constructive knowledge of the

manner in which the work was performed at Port Allen

Marine. Plaintiff urges the court to apply Halecki,

supra, in this case.

IN THE ALTERNATIVE, IT IS vin TO APPLY TO

RESTATEMENT OF TORTS, SECOND § 411, 413, 416, 423,

AND 427 TO ACCOMPLISH A UNIFORM LAND-BASED PRINCIPLE

FOR IMPOSING LIABILITY

If maritime principle of negligence are to be rejected,

ie

and the court must apply a uniform federal standard, employees of independent contractors should be in-

it is submitted that Restatement of Torts, 2 411, cluded in this designation.

413, 416, 423 and 427 should be applied under The Court in Eutsler v. United States, 376 F2d 634

8 905 (b) against the shipowner. (10th Cir, 1967) rejected the plaintiff's demends

The plaintiff submits that the Restatement of Torts, in a similar case, however, cited several cases

B 431 and 613 do ant vamsire the Geert t impose where courts found that the term "other" should

vicarious liability on the detendant which the Court include employees of an independent contractor.

Woolen v. Aerojet General Corporation, 57 Cal. 2d

in Hess, supra, states is precluded by 2 905 (b).

A : Gj to

Restatement of Torts, 2 41) requests that the owner 107, 20 Cal. Rptr. 12, 369 P. 2d 708; Giarrantano

v. Weitz Company, 259 Iowa 1292, 147 N.W. 2d 824;

select a competent and careful contractor while

Hagberg v. City of Sious Falls, 281 F. Supp. 460

2 413 requests that the owner must take precautions

against the dangers involved in work entrusted to a (D.C.S.D.)

contractor. All of these Restatement Sections should be extended

Restatement of Torts, Articles 416 § 423 and 427 by this Court to cover employees of independent

would ‘impose vicarious liability onthe defendant; contractors. This should especially include Restate-

however, the Court refuses to apply them since it ment § 413, since this article does not impose

is stated by the Court in Hess, supra, that they are vicarious liability on the ship owner and it also

prevented from doing so by 8 905 (b). These three applies to ‘others’.

° . Aa w = hl

sections, along with 8 413, however, apply to "others The Court in Lindler v. District of Columbia, 164

and as stated above, it can be reasonably argued that

ota

-10-

U.S. App. D.C. 35, 502 F.2d 495 (1975), allowed an

employee of an independent contractor to recover

from the contractor's employer using a theory similar

to Restatement of Torts, 2 413. The Court in Hess,

supra, rejected the view in Lindler as the minority

view; however, plaintiff submits that it should be

the view adopted to achieve a uniform federal inter-

pretation of Section 905 (b). Likewise, the Court

should adopt the Restatement sections to extend

protection to employees of independent contractors.

STRICT LIABILITY SHOULD BE APPLIED WHERE THE WORK

IS ULTRAHAZARDOUS OR INHERENTLY DANGERS

Plaintiff also urges that the Court should adopt the

principle of strict liability in the instant case.

The Court in Hess, supra, stated that the Congres-

sional Committee reports accompanyina the 1972

Amendments to the Longshoreman's and Harborworkers

Compensation Act 33 USCA 905 (b), emphasize an intent

to eliminate a strict liability concept and to limit

the liability of the ship owner for injuries received

~12-

by longshoremen. Plaintiff submits that another purno~-

of the Act was to stress employee safety. As stated

previously, this consideration has been given little

effect. With all the responsibility removed from the

ship owner. dangerous conditions will be created and

allowed to exist by the ship owner if they have no

resulting liability for the death or injury of a long-

shoreman.

In applying a strict liability standard, the Court shoul

give effect to Restatement of Torts, 8 416, which provid

that one who employs an independent contractor to do wor

that is dangerous, will be negligent in the absence of

taking special precautions to make sure that the work

is done safely. Likewise, Restatement of Torts, 8 427

deals with the employment of an independent contractor

when dealing with work of a dangerous nature.

In Fitzgerald v. Compania Naviera La Molinaro, 394 F.2d

402 (E.D.LA., 1975), Judge Rubin refused recover to a

longshoreman who was overcome in the hole of a ship but

<.,

stated that "...it would be manifestly unfair to hold

the vessel interest liable for the untoward results

occuring in the course of work which they have turned

over completely to an independent contractor, provided

the delegated work is not inherently dangerous."

(Emphasis added. ).

Plaintiff urges that the Restatement ? 416 and 427 be

read with the Fitzgerald case, supra, to establish a

theory of strict liability in this area of the law.

DEFENDANT SHOULD NOT HAVE HAD TWO OPPORTUNITIES TO

PRESENT A MOTION FOR SUMMARY JUDGMENT ON THE SAME

GROUND.

The plaintiff would point out that the trial court

entertained two separate and distinct motions, both

of which dealt with the same issues. The first was

a Motion For Summary Judgment filed by Exxon on

March 25, 1975. On April 17, 1975, the trial court

denied to motion. The Motion For Failure to State a

Claim was filed at the trial court's direction

immediately after the pretrial conference. If this

-14-

as translated into a Motion For Summary Judament, the

defendant, Exxon, had two bites at the applies without

plaintiff presenting it's case. On the facts, plaintiff

Suggests that the second Motion For Summary Judgment

be reversed.

CONCLUSION

It is respectfully suggest that a Writ of Certiorari

issue directed to the Fifth Circuit Court of Appeals in order

that this Court may put to rest the conflict among the circui

as to the applicable law to be applied in a 905 (b) action.

BY ATTORNEY:

John F. McKay a

CAVE. McKAY & POIRIER

7465 Exchanae Place

Baton Rouge, LA 70806

. *

CERTIFICATE

I hereby certify that three copies of the foregoing

has been mailed this date, postage prepaid, to all counsel

of record: John F. Reid, P. 0. Box 60626, New Orleans,

Louisiana 70160; and David W. Robinson, P. ©. Box 2995,

Baton Rouge, Louisiana 70821, on this day of

, 1978.

John F. McKay

xs

APPENDIX A

COURT OPINION

Before GEWIN, RONEY and HILL, Circuit

Judges

RONEY, Circuit Judge:

The plaintiffs’ decedent worked for an independent

contractor. Port Allen Marine, employed by defendants

to clean a barae of petroleum fumes and residue. In

1975 he was asphyxiated while working inside a barge

tank. Plaintiffs sued defendants for negligence under

the Longshoremen's and Harbor Workers' Compensation

Act, 33 U.S.C.A. 8 905(b) (Supp.1977). The trial court

dismissed the complaint on motion. basing its ruling on

the similarity between this case ard Hess v. Upper

Mississippi Towing Corp., Civ. No. 74-115 (M.D.La.

October 21, 1975), in which defendants prevailed on a

directed verdict. The appeals were araued together.

we affirm the dismissal of this case largely on the

basis of our reasoning in affirming Hess, slip Opin.

6161.--F.2d--(5th Cir. 1977) (No.75-4353). See also

Parson v. Amerada Hess Corp., 422 F.2d 610 (10th Cir.

1970); Cf. Uglerm v. Foss Launch & Tug Co., 541 F.2d

1378 (9th Cir. 1976) (no seaworthiness recovery).

nS

[1,2] This appeal raises certain questions not

presented in Hess. First, the plaintiffs argue dismissal

under Fed.R.Civ.P. 12(b)(6) was improner, because they

stated a claim upon which relief could be granted. The

argument misstates the nature of the district court's

decision. Both the language of the rule and the law of

this Circuit indicate that when a trial court takes into

consideration depositions and other information outside

the pleadings, as was done here, the grant of motion to

dismiss is to be treated as summary judament under Fed.

R.Civ.P. 56. Herron v. Herron, 255 F.2d 589 (5th Cir.1958).

See Wright & Miller, Federal Practice and Procedure

8 1366 & n.67 (1971). Plaintiffs have not demonstrated

any prejudice or lack of notice sufficient to establish

an exception. Consequently the case does not turn on

the failure to state a claim, but on whether the plaintiffs

have produced a material issue of fact which, if proved,

would entitle them to relief as a matter of law. Fed.R.

Civ.P. 56.

[3] Part IV of the Hess opinion deals with the

shipowner's liability for open and obvious dangers on

-18-

board the vesse!. The gas in the tank which asphyxiated

the plaintiffs’ decedent was such a danger. It was one

of the conditions that Port Allen Marine was hired to

correct. While, under Restatement (Second) to Torts

8 343,343A (1965), as interpreted in Gay v. Ocean Trans-

port & Trading Ltd., 546 F2d 1233 (5th Cir. 1977), the

shipowner is potentially liable for injuries caused by

such dangers if the danger cannot be appreciated by

invitees or cannot be avoided, neither circumstance

applies to this case. Port Allen Marine and Bossard

knew of the danger. See Gulf Oil Corp. v. Bivins, 276

F.2d 753, 756-758 (Sth Cir.), cert. denied, 364 U.S. 835,

81 S.Ct. 70,5 L.Ed.2d 61 (1960).

[4,5] The plaintiffs assert a ground for liability

not mentioned in Hess. They allege the defendants breached

two sets of federal regulations, so that a material issue

of fact with respect to their negligence exists. Neither

set of regulations, however, applies to the facts of this

case. The Coast Guard regulations, 46 C.F.R. 35.01-1

(1976), pertain to precautions taken when riveting or

.'*

welding a barge tank and do not apply to cleaning. The

safety and health regulations for longshoremen, 29 C.F.R.

1915.11-12 (1976), impose duties on Port Allen Marine, but

not on the shipowner. Brown v. Mitsubishi Shintaku Ginko,

550 F.2d 331 (5th Cir. 1977); see generally 90 Harv. L.

Rev. 1041 (1977).

AFFIRMED.

CAPTION DELETED APPENDIX B

DENTAL

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition ( ) for rehearing, ** and

no member of the panel nor Judge in regular active

service on the Court having requested that the Court

be polled on rehearing en banc (Rule 35, Federal Rules

of Appellate Procedure; Local Fifth Circuit Rule (12)

the petition ( ) for reharing en banc has also been

denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

EDWARD W. WADSWORTH

Clerk

**On behalf of appellant, Ella Weese Watson Bossard,

CAPTION DELETED APPENDIX C

MINUTE ENTRY:

DECEMBER 3, 1975

WEST, J.

Pre-trial conference was held this day and pre-

trial order was entered herein. After due considera-

tion of the record in this case, the pre-trial order

filed herein, including the stipulation of uncontested

facts, the depositions taken, and the arguments of

counsel, it is the opinion of this Court that this

case is, for all practical purposes identical with

the case of Hess v Upper Mississippi Towing Corp.,

bearing Civil Action No. 74-115 on the docket of this

Court. That case was decided adversely to the plain-

tiff on October 21, 1975. As in Hess, it is the opinion

of this Court that the plaintiff here has failed to state

a claim upon which relief can be granted. Counsel for

the defendant is hereby directed to file a motion to

dismiss, and upon receipt of that motion, this case

will be dismissed.

UNITED STATES DISTRICT JUDGE

John F. McKay,Esq.

Robin W. Poirier, Esq.

E. Burt Harris, Esq.

David W. Robinson, Esq.

-22-

CAPTION DELETED APPENDIX D

MOTION TO DISMISS FOR

FAILURE TO STATE A CLAIM

NOW INTO COURT, through undersigned counsel,

comes Exxon Corporation and moves for the dismissal

of plaintiffs' case herein for failing to state a

claim upon which relief can be granted.

Based on the facts established by pleadings or

by stipulation or admission of counsel, as set out

in the Pre-trial Order filed herein on December 3,

1975, as well as the material facts claimed by plain-

tiff and contested issues of law likewise set out in

the aforesaid pre-trial order, plaintiff has failed

to state facts necessary to show a breach on the part

of defendant, Exxon Corporation, of any duty owed to

the decedent, Donald Bossard, and has, therefore,

failed to state a claim upon which relief can be

granted.

WHEREFORE, defendant, Exxon Corporation prays

that Judgment be rendered in its favor and against

plaintiffs, dismissing their suit with prejudice and

at plaintiffs’ costs.

=23-

~24-

John F. licKay

BY

John F. McKay

CAVE, McKAY & POIRIER

7465 Exchange Place

Baton Rouge, LA 70806

Telephone: 504-924-3641

CAPTION DELETED APPENDIX E

MINUTE ENTRY:

DECEMBER 23, 1975

WEST, J.

This matter comes before the Court on the motion

of the defendant, Exxon Corporation, to dismiss this

case for failure to state a claim upon which relief

can be granted. There are no material issues of fact

involved in this case, and based upon the facts as

reflected by the record, it is the opinion of this

Court that plaintiff has indeed failed to state a claim

against Exxon Corporation upon which relief can be

granted. This case is identical with the case of

Phillip Hees v. Upper Mississippi Towing Corporation

and Penlatex Barge Lines, Inc., Civil Action No. 74-115

on the docket of this Court, which was dismissed by this

Court on October 21, 1975. Therefore:

IT IS ORDERED that the motion of the defendant,

Exxon Corporation, to dismiss this case as to them be,

and it is hereby GRANTED, and this suit is hereby

DISMISSED in its entirety.

“UNITED STATES DISTRICT JUDGE

-26-

APPENDIX F

ELLA WEESE WATSON BOSSARD,

Indiv., et-c. ET AL

vs CIVIL ACTION

EXXON CORPORATION, ET AL NO. 75-27

You are hereby notified, pursuant to Rule 77 (d) of

the Federal Rules of Civil Procedure, of the entry as of

this date of the Court's order dismissing the captioned

suit.

CHARLES H. BANTA, CLERK

By

APPENDIX G

RESTATEMENT OF TORTS 2d - 1965

Chief Deputy

TO:

E. Burt Harris, Esq.

Donald G. Cave, Esq.

David W. Robinson, Esq.

-26-

411. Negligence ir Selection of Contractor

An employer is subject to liability for rhysical

harm to third persons caused by his failure to ex-

ercise reasonable care to employ a competent and

careful contractor

a. to do work which will involve a

risk of physical harm unless it

is skillfully and carefully done,

or

b. to perform any duty which the em-

ployer owes to third persons.

413. Duty to Provide for Taking of Pre-

cautions Against Dangers Involved

in Work Entrusted to Contractor

One who employs an independent contractor to do

work which the emnloyer should recognize as likely to

create, during its progress, a peculiar unreasonable

risk of physical harm to others unless special pre-

cautions are taken, is subject to liability for

physical harm caused to them by the absence of such

precautions if the employer

a. fails to provide in the contract that

the contractor shall tave such pre-

cautions, or

b. fails to exercise rea*onable care to

provide in some other manner for the

taking of such precautions.

416. Work Dangerous in Absence of Special Pre-

cautions

=27-

One who employs an independent contractor to do

work which the employer should recognize as likely to

create during its progress a peculiar risk of physical

harm to others unless special precautions are taken,

is subject to liability for physical harm caused to

them by the failure of the contractor to exercise

reasonable care to take such precautions, even though

the employer has provided for such precautions in the

contract or otherwise.

423. Making or Repair of Instrumentalities Used in

Highly Dangerous Activities

One who carries on an activity which threatens a

grave risk of serious bodily harm or death unless the

instrumentalities used are carefully constructed and

maintained, and who employs an independent contractor

to construct or maintain such instrumentalities, is

subject to the same liability for physical harm caused

by the negligence of the contractor in constructing

or maintaining such instrumentalities as though the

employer had himself done the work of construction or

maintenance.

427. Negligence as to Danger Inherent in the Work

One who employs an independent contractor to do

work involving a special danoer to others which the

employer knows or has reason to know to be inherent

in or normal to the work, or which he contemplates

or has reason to contemplate when making the contract,

is subject to liability for physical harm caused to

such others by the contractor's failure to take

reasonable precuations against such danger.