Opposition Brief — Ainsworth v. Shell Offshore Inc.

CG | Supreme Court, US,

EILED

NO. 87-1466 APR 6 1988

————F—3OSEPHT €. SPANIOL, JR.

CLERK

In the =

Supreme Court of the United States

OCTOBER TERM, 1987

FRED H. AINSWORTH AND GLORIA AINSWORTH

Petitioners

versus

SHELL OFFSHORE INC.

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

JAMES E. BLAZEK

Counsel of Record

EDWIN C. LAIZER

SCOTT E. DELACROIX

ADAMS AND REESE

4500 One Shell Square

New Orleans, Louisiana 70139

Telephone: (504) 581-3234

Attorneys for Respondent,

Shell Offshore Inc.

and

JUDITH Y. ROBERTSON

Shell Offshore Inc.

4955 One Shell Square

New Orleans, Louisiana 70139

Attorney for Respondent,

Shell Offshore Inc.

a Ee ee y

A B Letter Service. Inc.. 327 Chartres St.. New Orleans, La. (504) 581-5555

i

QUESTION PRESENTED FOR REVIEW

3. Whether the United States Court of Appeals for the

Fifth Circuit was correct in affirming the district court’s

grant of summary judgment dismissing plaintiff’s Loui-

siana law tort claims where suit had been pending for over

a year-and-a-half prior to defendant’s filing a motion for

summary judgment, plaintiffs never requested, pursuant

_ to Rule 56(f) of the Federal Rules of Civil Procedure, that

defendant’s motion for summary judgment be denied or

continued pending further discovery, and the undisputed

evidence presented to the district court revealed that there

was no genuine issue as to any material fact and that Shell

Offshore Inc. was entitled to judgment as a matter of law?

il

LIST OF INTERESTED PERSONS

1. Fred H. Ainsworth and Gloria Ainsworth

Plaintiffs/Petitioners

2. Shell Offshore Inc.!

Defendant/ Respondent :

3. Shell Oil Company

4. Hercules Offshore Drilling Company

5. Midland Insurance Company

‘ Pursuant to Supreme Court Rule 28.1, Shell Offshore Inc. provides the

following list of its parent, subsidiary and affiliate companies:

Shell Energy Resources Inc

Pecten International Company

Scallop Coal Corporation

Shell Gas Pipeline Company

}

hell Gas Trading Company

hell Mining Company

shell Western E & P Inc

SO! Royalties Inc

ili

TABLE OF CONTENTS

Page

Questions Presented For Review.............cccccccsessssesreceeeeeeeees i

List of Tnterested Persons.....................55.0..0....c..s20se0scee0000s ii

SS da vilaspunecasonavecenacsssiboenss iii

occa rcasensiisnusisdanasvenesssrveesesosssesesveesessace iv

ricci ssnseedsitscashaiesinisnsacascesesareseneesthee 1

PRUE, OE DUFEBTICTION............625..240525200020000000000000. lesieinvonin 2

Statutory Provisions Involved........................s..ccccccssssscees 2

I a cscseesnennsananenkddeniixecstncadaceenecssnes 3

eas Liia nasndeldasaibidsdsednenatanssunsisninsunesesannscess 6

I. No Special and Important Reasons Exist to

aad acess siaAusscnimpadsnnmieanernceesees 6

II. The Procedural Handling of this Case by the

Lower Courts Was In Complete Compliance

With the Guidelines Set Forth By This Court......8

III. The Decision of the Lower Courts Is Correct

Under Applicable Louisiana Law....................0008 12

icra asiaceedasussskncaiensessatesvesvanstvesasanes 16

NE MIE Co cna cscasnersvencccssessnnseussosssvessesasscsssennes 18

iv

TABLE OF AUTHORITIES

CASES Paye

Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 106

S.Ct. 2606, 91 L.Ed. 2d DOD (1906). 2. .nsccccssscsccsesesecsesssseses 9

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 91 L.Ed. 265 (1986)............... 8,9,10,11,13,14,15,16

‘Colleps v. State Farm General Insurance Company,

446 So.2d 988 (La.App.3d Cir. 1984)... eee eeeeeee 14

Daroca v. Metropolitan Life Ins. Co., 121 F.2d 917

CE Ee ee Riiesds nc atiiinieaatanandce bderenntevenashecnintiacanmiaranten 16

Dixie Drive It Yourself System of New Orleans Co.

v. American Beverage Co., 242 La. 471, 137 So.2d

Se iicetiecdcte ei rk ae Ansan eatin sdisncanenie 13

Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.

RO Rivcbsiccieshsdue Scsparcheebaca casaceaniadepsidseddnstebdas tacenadag bbdeatadiassiat aon aude 16

Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir.

I aioe nacancncuieen sana tasaceaedunes coamcnane take aia tedahd tae ellis dciaadersee 11

Hawkins v. Evans Cooperidge Co., Inc., 766 F.2d

ee Se Gat. Se iibant tiie ds coneeaina.. 13

Layne and Bowler Corp. v. Western Well Works,

Inc., 261 U.S. 387, 67 L.Ed. 712, 43 S.Ct. 422

Pani icts contegudsdendcasascaakdeh deaklersdestkansacanantaseidad: auniaekcadiad cons 7

Matthews v. Southern Amusement Co., 199 So.2d

el ee Ly | Rn enn one en 16

Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S.

574, 89 L.Ed.2d 538, 106 S.Ct. 1348 (1986)......00.0000.. 9

Olsen v. Shell Oil Company, 365 So.2d 1285

et I age re 15

Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d

539 (5th Cir. 1980), cert denied, 454 U.S. 927

2) | | rE Sik pnckl a nesdeaddsnaniakschak ribtwbiciadeasaastaannceeriites 12

Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d

Se Se ee ea Reakcashen ncpnnstianasien ea eredeariteacanns 12

Vv

TABLE OF AUTHORITIES (continued)

CASES Page

Rapattoni v. Commercial Union Ins. Co., 378 So.2d

re Ce Gs BR i rtetettientkertircninnno cus 16

Robideaux v. Hebert, 118 La. 1089, 43 So. 887

FRE naidawicshcantinsasanelnumindeaniielaeenasanaentadantn 13

Rodrigue v. Aetna Casualty & Surety Co., 395 U.S.

352, 22 L.Ed.2d 360, 89 S.Ct. 1835 (1969)... 12

Steele v. Helmerich & Payne International Drilling

Co, THB FB TOS Re Ge, Bric vrrenctccxregtccerszanss 14

Stewart v. Sam Wallace Inds. Co., 409 So.2d 335

(La.App.lst Cir. 1981), writ refused, 413 So.2d

SF a Fis cdinchtsesdisidisuccaiaiavisdenieaaaiadssnasieconsdanatias 14

Stine v. Creel, 417 So.2d 1243 (La.App.1st Cir.

1982), writ denied, 422 So.2d 163 (La. 1982)............... 16

Temple v. General Insurance Co. of America, 306

So.2d 915 (La. App.let Cir. 1974).........ccscscrcocsesesssssesases 16

Walters v. City of Ocean Springs, 626 F.2d 1317

Re edt cchass caassancavienseczcsnrccéasnndocevevnamtaaeiie 12

STATUTES AND RULES

Federal Rules of Civil Procedure, Rule 56............ ..2,4,9,10

11,12,16,A-1

Louisiana Civil Code Article 2315... eens 2,10,13

Louisiana Civil Code Article 2317.................. 2,10,13,14,15

Louisiana Civil Code Article 2322.........00.0.... 3,10,13,15

UJ. BH Cem Ce TU EF I evneicccsicescceneriasssccanninisioniaess 7

TY. Sh Bee CHAE I bisa ccsisenesccccnssccsncnernnisciaccnne ii

OO UGA © TORT in aise visicctochcee race mi nrerntonen 2

l

NO. 87-1466

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

FRED H. AINSWORTH AND GLORIA AINSWORTH

Petitioners

versus

SHELL OFFSHORE INC.

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, Shell Offshore Inc., respectfully prays

that the Petition for Writ of Certiorari filed by Petitioners

in this case, requesting review of the decision of the United

States Court of Appeals for the Fifth Circuit entered Oc-

tober 14, 1987, and its denial of the Petition for Panel

Rehearing entered on November 9, 1987, be denied, for the

reasons set forth below.

OPINIONS BELOW

The United States Court of Appeals for the Fifth Cir-

cuit rendered its opinion on October 14, 1987 (Petitioners’

App. at B1-B23). This opinion is reported at 829 F.2d 548.

The United States District Court for the Western

District of Louisiana rendered its opinion on December 8,

1986 (Petitioners’ App. at C1l-C31). The district court

2

opinion is reported at 649 F.Supp. 1223.

STATEMENT OF JURISDICTION

The opinion of the United States Court of Appeals

for the Fifth Circuit (Petitioners’ App. at Bl - B23) was

entered on October 14, 1987. A Petition for Panel Rehear-

‘ing was denied on November 9, 1987 (Petitioners’ App. at

Al - A2). The jurisdiction of this Court is invoked pursuant

to Title 28 U.S.C.A. § 1254(1).

STATUTORY PROVISIONS INVOLVED

1. Federal Rule of Civil Procedure 56 (reproduc-

ed in Appendix).

2. Louisiana Civil Code Art. 2315.

LIABILITY FOR ACTS CAUSING

DAMAGES.

Every act whatever of man that causes

damage to another obliges him by whose

fault it happened to repair it.

Damages may include loss of consortium,

service, and society, and shall be recoverable

by the same respective categories of persons

who would have had a cause of action for

wrongful death of an injured person.

3 Louisiana Civil Code Art. 2317.

ACTS OF OTHERS AND OF THINGS IN

CUSTODY.

We are responsible, not only for the damage

occasioned by our own act, but for that

which is caused by the acts of persons for

whom we are answerable, or of the things

3

which we have in our custody. This, however,

is to be understood with the following

modifications.

4. Louisiana Civil Code Art. 2322.

DAMAGE CAUSED BY RUIN OF

BUILDING. The owner of a building is

answerable for the damage occasioned by its

ruin, when this is caused by neglect to repair

it, or when it is the result of a vice in its

original construction.

STATEMENT OF THE CASE

Petitioners, Fred H. Ainsworth and Gloria

Ainsworth, filed suit against Shell Offshore Inc. (originally

incorrectly referred to as Shell Oil Company and

hereinafter referred to as ‘‘Shell’’) on January 16, 1985,

alleging that Shell, as the owner of a fixed platform on

which plaintiff's employer, Hercules Offshore Drilling

Company (hereinafter referred to as ‘‘Hercules’’), had been

hired to erect its drilling rig, was somehow responsible for

injuries allegedly sustained by Mr. Ainsworth in an acci-

dent which occurred on October 25, 1984 during construc-

tion of the Hercules rig by the Hercules crew. Subsequent-

ly, Shell filed a third party complaint against Hercules.

An initial pre-trial conference was set for January 3,

1986. According to the rules of the district court, discovery

was to be completed and all motions to compel discovery

filed on or before January 3, 1986. At the pre-trial con-

ference, trial was set to begin September 15, 1986, with a

new cut-off date for dispositive motions and the taking of

discovery being set for August 15, 1986. During the time

between January 3, 1986 and August 15, 1986, discovery

was undertaken by plaintiffs as well as defendants.

4

On August 15, 1986, over a year-and-a-half after the

complaint had been filed, Shell filed its motion for sum-

mary judgment. It should be noted that pursuant to the

previously mentioned deadlines, this motion was filed on

the dispositive motion cut-off date, which was also the

discovery cut-off date. Shell supported its Motion for Sum-

mary Judgment with the deposition testimony of several

‘persons, including the plaintiff, as well as a copy of the

Master Drilling Agreement and Marine Bid and Drilling

Order which existed between Sheil and Hercules.

Plaintiff filed an opposition to Shell’s Motion for

Summary Judgment on August 25, 1986. The opposition

contained no affidavit pursuant to Rule 56(f) of the Federal

Rules of Civil Procedure, nor was any request ever made of

the district court that it refuse the application for sum-

mary judgment or order a continuance to permit discovery

to be had prior to ruling on the motion.

The Motion for Summary Judgment was under ad-

visement by the district court until ruled upon on

December 9, 1986. During the time the motion was under

advisement, plaintiffs undertook discovery, noticing and

re-noticing the depositions of numerous doctors in prepara-

tion for trial. However, no deposition notices were ever fil-

ed for any fact witness during this time period.

On December 9, 1986, the district court ruled, gran-

ting Shell’s Motion for Summary Judgment and setting

forth findings of fact and conclusions of law. (Petitioners’

Appendix at C1-C31). This judgment was affirmed by the

United States Court of Appeals for the Fifth Circuit on Oc-

tober 14, 1987. (Petitioners’ Appendix at B1-B23). A Peti-

tion for Panel Rehearing was denied on November 9, 1987.

(Petitioners’ Appendix at A1l-A2). Subsequently, peti-

tioners filed this writ of certiorari.

5

The facts underlying this case are not in serious

dispute. Shell owns an offshore platform permanently af-

fixed to the floor of the Gulf of Mexico on the Outer Con-

tinental Shelf off the Louisiana coast in Vermilion Block

221. In order to utilize the platform to explore for oil and

gas, a drilling rig must be brought to and assembled on the

platform. Shell hired an independent contractor, Hercules,

to furnish the rig and drill the well from the bare Shell

platform.

Pursuant to the contract between Shell and Her-

cules, Hercules was obligated to transport its drilling rig

offshore and assemble it on Shell’s platform. Petitioners

allege that Mr. Ainsworth was injured on October 25, 1984,

during the rigging up of Hercules’ rig when, during a night

shift, he dropped a tool, searched for it in the dark and fell

into a mud tank on the Hercules rig.

Even when taken in a light most favorable to the

petitioners, the undisputed facts reveal no genuine issues.

The Master Drilling Agreement between Shell and Her-

cules clearly shows that Hercules contracted with Shell to

operate as an independent contractor in the performance of

all work under the contract. Shell was to give no directional

control over the work and was to have only a general right

of inspection to secure satisfactory completion of the con-

tract. Hercules, on the other hand, was to perform and

supervise all work as an expert independent contractor.

This was confirmed by Ainsworth himself in his deposition,

as well as by the deposition testimony of the president of

Hercules, Mr. Coward.

The deposition testimony submitted to the district

court further showed that Hercules had three supervisors

on its rig and that Ainsworth received all his orders from

these individuals. While Hercules had 20 to 25 people pre-

sent, Shell had only one or two, who were operating in the

position of ‘company man”.

6

The deposition of Mr. Coward, as well as the deposi-

tion of the plaintiff and the affidavit of Darrel Cruise, con-

firmed that no Shell employees participated in the rig-up.

In fact, Cruises’s affidavit, which was submitted by peti-

tioners in opposition to the Motion for Summary Judg-

ment, specifically states that instructions regarding the

work were given to the Hercules crew by one of the Her-

-cules toolpushers.

The undisputed evidence presented to the district

court also indicated that Hercules owned the rig, including

the area in which Mr. Ainsworth fell, and that Hercules

owned all-equipment used in the rig-up. According to the

testimony of Mr. Coward, Hercules had sole responsibility,

charge, supervision, custody, care and control of all such

property, and had the responsibility for providing all

lighting on the platform. Specifically, Coward testified that

the Hercules toolpusher was responsible for making sure

that lighting was proper and adequate.

The undisputed evidence at the trial court level in-

dicated that at the time of the accident, the construction of

the rig was no more than 25% to 50% complete and that at

least 3 or 4 more days would be necessary to finish building

the rig. As will be discussed in more detail below, it is

respectfully submitted that on these, facts, the district

court was entirely correct in granting Shell’s Motion for

Summary Judgment and the appellate court was entirely

correct in affirming this ruling.

ARGUMENT

1. No Special and Important Reasons Exist to

Grant Certiorari

For many years, in determing whether writs of cer-

tiorari should be granted, this Court has applied the

principle

Layne and Bowler Corp. v. Western Well Works, Inc., 261

U.S. 387, 393, 67 L.Ed. 712, 714, 43 S.Ct. 422, 423 (1923).

For this reason, U.S. Supreme Court Rule 17.1 makes clear

that review on writ of certiorari will be granted only when

there are ‘‘special and important reasons therefore’’. The

rule sets forth the following examples of the ‘“‘character of

7

... that it is very important that we be con-

sistent in not granting the writ of certiorari

except in cases involving principles the set-

tlement of which is of importance to the

public as distinguished from that of the par-

ties, and in cases where there is a real and

embarrassing conflict of opinion and authori-

ty between the circuit courts of appeal.”

reasons” that will justify review:

(a)

(b)

(c)

When a federal court of appeals has rendered

a decision in conflict with the decision of

another federal court of appeals on the same

matter; or has decided a federal question in a

way in conflict with a state court of last

resort; or has so far departed from the ac-

cepted and usual course of proceedings, or so

far sanctioned such a departure by a lower

court, as to call for an exercise of this Court’s

power of supervision.

When a state court of last resort has decided

a federal question in a way in conflict with

the decision of another state court of last

resort or of a federal court of appeals.

When a state court or a federal court of ap-

peals has decided an important question of

federal law which has not been, but should

be, settled by this Court, or has decided a

federal question in a way in conflict with ap-

plicable decisions of this Court.

Reference to petitioners’ papers in this matter will

show the noticeable absence of any statement regarding

8

the existence of such “‘special and important reasons’’ for

review. The explanation for this, of course, is that no such

reasons exist. Certainly there is no conflict among the

federal courts of appeal on the issues involved here; nor

does the decision of the court of appeals conflict on any

federal question with a state court of last resort; nor does

this case present an important and undecided question of

federal law; nor does the court of appeals’ decision conflict

with applicable decisions of this Court; nor have any of the

lower courts departed from the accepted and usual course

of judicial procedings. Rather, this case, which involves

primarily questions of the application and interpretation of

Louisiana law, has been carefully reviewed and correctly

decided by the United States District Court for the

Western District of Louisiana and the United States Court

of Appeals for the Fifth Circuit. Petitioners’ writ of cer-

tiorari should be denied since the case lacks the type of

elements which this Court has traditionally required before

exercising its review.

Rather than pointing out any “‘special and important

reasons’’ why the case should be heard, petitioners ap-

parently argue (1) that the lower courts improperly granted

summary judgment to respondent; and (2) that in so doing,

the lower courts misapplied Louisiana Law, which controll-

ed the substantive issues in this platform case. As will be

pointed out below, however, the handling of this case by

the lower courts was entirely correct, both proceduraily

and substantively.

II. The Procedural Handling of This Case by the

Lower Courts Was In Complete Compliance With

the Guidelines Set Forth By This Court

In a recent triumvirate of cases, this Court has clear-

ly and concisely set forth the standards which should guide

the handling and review of motions for summary judg-

ment. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

a

9

2548, 91 L.Ed. 265 (1986); Matsushita Elec. Inc. Co. v.

Zenith Radio, 475 U.S. 574, 89 L.Ed.2d 538, 106 S.Ct. 1348

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986). Specifically, this Court

has stated:

... the plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time

for discovery and upon motion, against a party

who fails to make a showing sufficient to

establish the existence of an element essential to

that party’s case, and on which that party will

bear the burden of proof at trial. In such a situa-

tion, there can be ‘no genuine issue as to any

material fact,’ since a complete failure of proof

concerning an essential element of the non-

moving party’s case necessarily renders all other

facts immateriai. The moving party is ‘entitled to

judgment as a matter of law’ because the non-

moving party has failed to make a sufficient

showing on an essential element of her case with

respect to which she has the burden of proof.

Celotex, 106 S.Ct. at 2552-53, 91 L.Ed.2d at 273. The stan-

dard of Rule 56 provides that the mere existence of some

alleged factual dispute between the parties will not defeat

an otherwise proper motion for summary judgment; what

is required is that there is no genuine issue of material fact.

Anderson, 91 L.Ed. at 211. One opposing a motion for sum-

mary judgment must do more than simply show that there

is some ‘metaphysical doubt’ as to the material facts. Mat-

sushita Electric, 475 U.S. at 586, 89 L.Ed.2d at 552. The

question as to which facts are material is one which will be

determined by reference to the applicable substantive law.

Only disputes over facts that might affect the outcome of

the suit properly preclude the entry of summary judgment.

‘‘Factural disputes that are irrelevant or unnecessary will

not be counted.’’ Anderson, 91 L.Ed.2d at 202.

10

As wil be discussed more fully below, petitioners

made claims against respondent pursuant to Louisiana

Civil Code Articles 2315, 2317 and 2322. In order to

establish liability under each of these articles, certain

elements must be shown. The lower courts agreed with

respondent’s contentions that petitioners, who would bear

the burden of proof on each of these elements at trial, had

‘failed to make a showing sufficient to establish the ex-

istence of at least one of these elements with regard to each

of the asserted bases of liability. Accordingly, summary

judgment was proper under the rule enunciated by this

Court in the language quoted above from the Celotex case.

Petitioners initially claim that respondent’s motion

was improperly supported because ‘‘the only evidence sub-

mitted by Shell was a copy of its contract with Hercules.”

(Petitioners’ writ application at p. 10). As the opinion of the

United States Court of Appeals for the Fifth Circuit makes

clear, this statement is obviously inaccurate in that Shell’s

motion was also supported by the deposition testimony of

the plaintiff himself, as well as that of William Coward, the

president of Hercules, and Arthur Dunn, a Shell purchas-

ing executive. The support for Shell’s motion was clearly

more than sufficient in view of the statements in Celotex

and the plain language of Rule 56(a) that a party may move

for summary judgment ‘‘with or without supporting af-

fidavits.’’ The lower courts, which considered the evidence

submitted by Shell and the opposing evidence submitted

by petitioners, clearly believed that the ‘‘pleadings, deposi-

tions, answers to interrogatories, and admissions on file,

together with the affidavits’ showed that there was no ge-

nuine issue as to any material fact and that Shell was en-

titled to judgment as a matter of law.

Petitioners also complain that the motion was ruled

upon before they had the opportunity to complete

discovery. In order to evaluate this claim, the procedural

11

history of the case must be kept in mind. By the time

Shell’s motion was filed, the case had been pending for ap-

proximately one-and-a-half years and was one month from

the scheduled trial date. Two court-imposed discovery cut-

off deadlines had already passed. Petitioners took no

depositions while this case was pending at the district

court level. In fact, even after the motion was filed and

while it was under advisement, petitioners requested only

that certain medical depositions be taken and made no at-

tempt to notice any depositions reagrding the issues in-

volved in the motion. Respondent submits that this is

because petitioners erroneously believed that the motion

would be denied when, in fact, they had failed to make a

showing sufficient to establish the existence of elements

essential to their case. Celotex, 91 L.Ed.2d at 273.

Given the time that this case had been on the docket

and the fact that the parties had conducted discovery, no

serious claim can be made that petitioner was in any way

“railroaded”’ by a premature motion. As is pointed out in

Celotex, any potential problem with such motions can be

adequately dealt with under Rule 56(f), which allows the

Court to refuse an application for summary judgment or

order a continuance to permit affidavits to be obtained or

depositions to be taken, if it appears from the affidavits of

a party opposing a motion for summary judgment that he

cannot, for reasons stated in his affidavit, present facts

essential to his opposition. In the instant case, petitioners

never made a request for denial or continuance of the mo-

tion in accordance with the simple procedure set forth in

Rule 56(f). In the absence of such an affidavit, or some

equivalent statement, the district court in this matter need

not have considered a continuance. Fontenot v. Upjohn Co.,

780 F.2d 1190, 1194 (5th Cir. 1986). Petitioners essentially

suggest that the district court should have engaged in an

exercise in mind reading and determined that they desired

to do further discovery. This is, of course, not required

12

under Rule 56 or the relevant decisions of this Court.

Furthemore, even if petitioners had made a request

pursuant to Rule 56(f), the decision as to whether to grant

a continuance in order to allow a party to proceed with fur-

ther discovery is one which rests within the discretion of

the trial court, to be disturbed on appeal only if its decision

-reflects an abuse of discretion. Paul Kadair, Inc. v. Sony

Corp. of America, 694 F.2d 1017, 1029 (5th Cir. 1983); Pan-

Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 550 (5th

Cir. 1980), cert deneid, 454 U.S. 927 (1981); Walters v. City

of Ocean Springs, 626 F.2d 1317, 1321 (5th Cir. 1980). As

recited above, the procedural history of this case makes

clear that the trial court would have had more than ade-

quate reasons to deny a request for continuance and would

have been totally within its discretion in doing so.

In summary, the lower courts handled this matter

correctly from a procedural standpoint. Respondent’s Mo-

tion for Summary Judgment was properly supported, and

the record and opinions of the lower courts indicate that

they carefully considered the evidence before them and

determined that there were no genuine issues of any

material fact. Considering that this is precisely what Rule

56 and the relevant decisions of this Court require to be

done, respondents suggest that there is no issue worthy of

review here and that petitioners’ writ of certiorari should

be denied.

III. The Decision of the Lower Courts

Is Correct Under Applicable Louisiana Law

Another compelling reason why review should be

denied in this case is that all the substantive questions

with regard to liability were controlled by the law of the

State of Louisiana since the accident sued upon occurred on

a stationary and fixed platform located on the Outer

13

Continental Shelf off the coast of Louisiana. State law, of

course, applies on such platforms as surrogate federal law.

Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 22

L.Ed.2d 360, 89 S.Ct. 1835 (1969). Petitioners presented

claims under Louisiana Civil Code Articles 2315, 2317 and

2322, each of which requires the proof of certain elements

in order to establish liability. As is discussed below, at

least one of the required elements for each of these theories

of liability was shown to be absent by the overwelming

weight of the summary judgment evidence. Therefore,

under Celotex, summary judgment was appropriate.

1. Louisiana Civil Code Article 2315

Louisiana Civil Code Article 2315 sets forth the right

to recover for the negligence of another. The Louisiana

Supreme Court has interpreted this Article under what is

known as a duty-risk analysis. Dixie Drive It Yourself

System of New Orleans Co. v. American Beverage Co., 242

La. 417, 137 So.2d 298 (1962). A duty-risk analysis sup-

plants the traditional proximate cause inquiry, requiring

instead a determination of whether the defendant owed a

duty to the plaintiff and whether the risk of injury sustain-

ed by the plaintiff fell within the ambit of that duty. The

existence of a duty is. accordingly, an essential element of

the claim for negligence under Louisiana law.

Shell’s Motion for Summary Judgment on the

negligence claim was granted because the undisputed facts

showed that Shell did not owe a duty to Ainsworth in this

situation. This is because under Louisiana law, a principal

is not liable for offenses committed by an independant con-

tractor in the course of performing its contractual duties.

Hawkins v. Evans Cooperidge Co., Inc., 766 F.2d 904 (5th

Cir. 1985); Robideaux v. Hebert, 118 La. 1089, 43 So. 887

(1907). As is more fully set forth in the opinions rendered

by the Fifth Circuit (Petitioners’ App. at B1-B23) and the

district court (Petitioners’ App. at C1-C31), the summary

14

judgment evidence clearly showed that at the time of his in-

jury, Ainsworth was an employee of Hercules, which had

contracted with Shell to place its rig on Shell's platform.

The evidence clearly indicated that Shell had no control

over the operations undertaken by Hercules and did

nothing to cause the accident invelved in this case.

Ainsworth’s own testimony was to the effect that he receiv-

ed all of his orders from Hercules’ supervisors and that he

had never received any instructions from any Shell

employee. As a result, Shell, as a principal hiring an in-

dependent contractor, had no duty to the plaintiff under

Louisiana law. Since, in the absence of such a duty, peti-

tioners could not recover from Shell, it is clear that an

essential element of plaintiffs’ claim was absent. Under

Celotex, therefore, summary judgment was appropriate.

2. Louisiana Civil Code Article 2317

Louisiana Civil Code Article 2317 imposes strict

liability in situations where a defective object within the

custody or control of a defendant causes injury. The Loui-

siana Courts have held that liability can be imposed under

Article 2317 only when:

(1) the thing causing damage was in the defen-

dant’s custody;

(2) the thing had a vice or defect, and

(3) the vice or defect occasioned damage.

Stewart v. Sam Wallace Indus. Co., 409 So.2d 335 (La.App.

lst Cir. 1981), writ refused, 413 So.2d 497 (La. 1982).

‘“‘Custody”’ as used in this article means supervision and

control. Steele v. Helmerich & Payne International Drill-

ing Co., 738 F.2d 703, 707 (5th Cir. 1984); Colleps v. State

Farm General Insurance Company, 446 So.2d 988

(La.App.3d Cir. 1984).

As is more fully set forth in the lower court opinions,

the uncontroverted summary judgment evidence revealed

15

that Shell did not have custody of the Hercules drilling rig.

All the summary judgment evidence indicated that the

materials involved belonged to Hercules and that no Shei!

employees were expected to participate in the rig-up, for

which Hercules bore full responsibility. Without ‘‘custody”’

there can be no liability under Article 2317, since custody

is one of the essential elements which must be proved in

order for liability to exist. Again, because petitioners com-

pletely failed to set forth any evidence to support this

essential element of their claim under Article 2317, sum

mary judgment was appropriate under Celotex.

3. Louisiana Civil Code Article 2322

Finally, petitioners asserted liability under Loui-

siana Civil Code Article 2322, which imposes strict liability

on building owners under certain circumstances. The Loui-

siana authorities are clear that in order to establish liability

under Article 2322, the plaintiff must prove the foliowing

essential elements:

(1) that there was a building;

(2) that the defendant was the owner: and,

(3) that there was a ruin caused by a vice in con-

struction or a neglect to repair the building.

Olsen v. Shell Oil Company, 365 So.2d 1285, 1289 (La.

1979).

The undisputed facts of this case revealed that the

drilling rig on which Ainsworth was injured was under con-

struction at the time of his accident. As a result, the lower

courts correctly concluded that under Louisiana law, any

‘“‘ruin”’ could not have resulted from a ‘‘vice in original con-

struction” or a “neglect to repair’. Since this is one of the

essential elements which must be proved for liability to ex-

ist under Article 2322, this claim was properly disposed of

by summary judgment.

16

In essence, the holding of the lower courts was that

as a matter of law, Article 2322 is inapplicable to situations

involving injuries which occur during construction. This in-

terpretation is consistent with numerous Louisiana

authorities such as Temple v. General Insurance Co. of

America, 306 So.2d 915 (La.App. lst Cir. 1974); Fonseca v.

Marlin Marine Corp., 410 So.2d 674 (La. 1981); Rapattoni

‘v. Commercial Union Ins. Co., 378 So.2d 953 (La.App.3d

Cir. 1979); Stine v. Creel, 417 So.2d 1243 (La.App. Ist Cir.

1982), writ denied, 422 So.2d 163 (La. 1982); Daroca v.

Metropolitan Life Ins. Co., 121 F.2d 917 (5th Cir. 1941); and

Matthews v. Southern Amusement Co., 199 So.2d 403

(La.App.3d Cir. 1967). The question of whether a specific

state statute is applicable to a given fact situation is, of

course, one which is mostly appropriately left to the state

courts and lower federal courts which are most familiar

with the idiosyncracies and interpretations of the par-

ticular statute involved.

CONCLUSION

Respondent, Shell Offshore Inc., respectfully sub-

mits that there are no ‘‘special and important reasons’

why this case should be reviewed by this Court. The issues

involved here, which were correctly decided by the lower

courts, are primarily ones of the interpretation and applica-

tion of the law of the State of Louisiana and have no

substantial importance or application outside of the state.

Furthemore, the lower federal courts in this matter follow-

ed the teachings of this Court in Celotex and the guidelines

of Rule 56 precisely in ruling on respondent's Motion for

Summary Judgment. Accordingly, the case does not merit

review and respondent, Shell Oil Offshore Inc., submits

17

that the Petition for Writ of Certiorari filed by Fred H.

Ainsworth and Gloria Ainsworth should be denied.

Respectfully submitted,

ADAMS AND REESE

JAMES E. BLAZEK

Counsel of Record

EDWIN C. LAIZER

SCOTT E. DELACROIX

4500 One Shell Square

New Orleans, Louisiana 70139

Telephone: (504) 581-3234

Attorneys for Respondent,

Shell Offshore Inc.

and

JUDITH Y. ROBERTSON

Shell Offshore Inc.

4955 One Shell Square

New Orleans, Louisiana 70139

Attorney for Respondent,

Shell Offshore Inc.

18

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and forego-

ing Brief in Opposition has been served upon all counsel of

record by depositing same into the United States Mail, pro-

perly addressed and postage prepaid, this day of

April, 1988.

JAMES E. BLAZEK

EDWIN C. LAIZER

SCOTT E. DELACROIX

and

JUDITH Y. ROBERTSON

A-1

APPENDIX A

Rule 56. Summary Judgment

(a) For Claimant. A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a

declaratory judgment may, at any time after the expiration

of 20 days from the commencement of the action or after

service of a motion for summary judgment by the adverse

party, move with or without supporting affidavits for a

summary judgment in the party’s favor upon all or any

part thereof.

(b) For Defending Party. A party against whom a

claim, countercliam, or cross-claim is asserted or a

declaratory judgment is sought may, at any time, move

with or without supporting affidavits for a summary judg-

ment in the party’s favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion

shall be served at least 10 days before the time fixed for the

hearing. The adverse party prior to the day of hearing may

serve opposing affidavits. The judgment sought shall be

rendered forthwith if the pleadings, depositions, answes to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

a judgment as a matter of law. A summary judgment, in-

terlocutory in character, may be rendered on the issue of

liability alone although there is a genuine issue as to the

amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on mo-

tion under this rule judgment is not rendered upon the

whole case or for all the relief asked and a trial is necessary,

the court at the hearing of the motion, by examining the

pleadings and the evidence before it and by interrogating

counsel, shall if practicable ascertain what material facts

exist without substantial controversy and what material

A-2

facts are actually and in good faith controverted. It shall

thereupon make an order specifying the facts that appear

without substantial controversy, including the extent to

which the amount of damages or other relief is not in con-

troversy, and directing such relief is not in controversy,

and directing such further proceedings in the action as are

just. Upon the trial of the action the facts so specified shall

‘be deemed established, and the trial shall be conducted

accordingly.

(e) Form of Affidavits; Further Testimony; Defense

Required. Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as

would be admissable in evidence, and shall show affir-

matively that the affiant is competent to testify to the mat-

ters stated therein. Sworn or certified copies of all papers

or parts thereof referred to in an affidavit shall be attached

thereto or served therewith. The court may permit af-

fidavits to be supplemented or opposed by depositions,

answers to interrogatories, or further affidavits. When a

motion for summary judgment is made and supported as

provided in this rule, an adverse party may not rest upon

the mere allegations or denials of the adverse party's

pleading, but the adverse party’s response, by affidavits or

as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial. If the

adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.

(f) When Affidavits are Unavailable. Should it ap-

pear from the affidavits of a party opposing the motion

that the party cannot for reasons stated present by af-

fidavit facts essential to justify the party’s opposition, the

court may refuse the application for judgment or may order

a continuance to permit affidavits to be obtained or deposi-

tions to be taken or discovery to be had or may make such

other order as is just.

A-3

(g) Affidavits Made in Bad Faith. Should it appear to

the satisfaction of the court at any time that any of the af-

fidavits presented pursuant to this rule are presented in

bad faith or solely for the purpose of delay, the court shall

forthwith order the party employing them to pay to the

other party the amount of the reasonable expenses which -

the filing of the affidavits caused the other party to incur,

including reasonable attorney’s fees, and any offending

party or attorney may be adjudged guilty of contempt.