# Petition — Bossard v. Exxon Corp.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0394%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 934

## Text

#~ 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0394%3A1. Public record. Not legal advice.