offshore platform owned by the apple a he or t mr voce as was standing on a tank attached to that platform when that tank was mistakenly cut free due to a change in the work plan that governed the sequence of the decommissioning about platform that tank fell into the gulf of mexico where it dragged mr buses with it to the sea floor where mr bosis drowned mr versus his family has raised two claims both are rising under louisiana law that are at issue in th appeal today one is a claim for independent negligence in louisiana alleging that e r t assumed a duty to ensure the safety of the work land governing the decommissioning and its safe communication to contractors specifically o s f of which mr voce is was an employee the other claim is a claim provide carious liability alleging that e r t is responsible for the negligence of its contractor o s f the court below granted summary judgment on both claims and i'd like to focus my argument this morning on the claim for independent negligence and in order to do that it's important to understand the mistaken premise which is the root of the error of the district court and that is the district court's treatment of finding that there is no practical difference between a claim for independent negligence and one for vicarious liability what the court below did was look first and only to vicarious liability determined that there was no operational control to get around the independent contractor defense and on that basis went on to determine there was therefore no independent negligence that's not the law in the state of louisiana and crane in other cases we cited an individual corporation in louisiana can be independently negs or negligent even in the absence of by vicarious liability can be vicarious liable liable in the absence of independent negligence it's not of one or all proposition these are claims with distinct elements as such they require the court to look to different evidence and when the court below simply look to vicarious liability it failed to consider evidence of independent negligence specifically evidence that the r t had assumed a duty under louisiana law and was negligent in performing that they do that i mean are you talking about what the company me and did know well you're  they assume was to ensure the safety of the work plan and its proper communication that could be done at a number of levels number one would be through the company there are also engineering reviews that are done at the r t but in  the question is along the louisiana settle that a party who otherwise has no duty to perform a particular task once they assume that task they take on a duty to perform that that task in a safe  reasonable and prudent manner and failure to do so gives cause to an action for negligence we cited this in crane in a number of louisiana cases the question before the court is whether e r t assume the duty and not a dispositive issue simply is there some evidence in the like considered most favorable to the voters family they are to assume that this duty of ensuring the safety of the work plan and its proper communication while duties normally is a question of law when the facts are disputed about whether that duty was assume it becomes a fact issue and summary judgment is improper and we cited a number of cases so what the court should have looked to first off was this question of duty and that's what  i would like to focus on initially obviously there needs to be a duty for this independent negligence under louisiana law an argument and claim as e r to assume the duty the most compelling piece of evidence that he r t assuming this particular duty is e r t's own words and what are your t said in a letter to the department of interior and vesey was it was our responsibility to ensure the safety of the work plan and its proper communication to the workers this is not the only evidence of these sumption of duty but i certainly believe it's the most compelling and it's important to note that in the court below there was no objection to this letter there's been no rule of evidence cited as to why the court should not have considered this letter it's admissible evidence and what the letter is is a letter from e r t to betsy after this accident bessie convened a panel investigation that panel investigation took about a year after a year bessie paid the panel released its findings and included in those findings were a recommendation that two incidences of noncompliance be issued to r t e r t wrote this letter to tab nine in  excerpts seventeen o two in the record and it's about a four or five page letter in the r t says a number of things and i would also note that in the court below e r team cited this letter at twenty three forty four in the record footnote fifteen as demonstrating the reality of what happened on the platform and among all the different facts about who's the p r c and who has custody or any other issue what do you r t says to betsy is it was our responsibility to assure the safety of this work plan ensure its proper communication to the workers as a general principle that is evidence which when considered talking there about the work plan as it was confected to start with right i'm talking about  plan as modified and that's an important point this work plan went through a couple of iterations at one point it was in the company phase where there were some engineering reviews a at this work plan and there was some disputed evidence in there about whether there was any consideration given to the fact that these cranes had been added to the top of the tank which gave it an outward outward turn of momentum but while they were on this platform the plan changed and due to high seas the initial part of this plan was to remove these two cranes from the top of this plant and these are large crays these are one hundred and ten feet twenty five tons each they were added to the tank at a later date the evidence is disputed as to whether he r t or o s f was ever given a schematic showing they existed but the number one step was remove these cranes due to high seas they changed the plan see can go is and said the plan needs to change now what his testimony was was he went to peter goings with the changes to make sure that peter boy is that you are t p i see agreed agreed that this was the right way to do and i take it that clients his concern was are we going to have to pay more i think that's one of his concerns he testified that he was there to make sure work was going on in accordance with the client from but he was informed and i think what's important is that joe douglas the bard superintendent stated that he went to mr going to get his agreement that this was the right way to go to change the sequence so when the cranes no longer comma the decision is made then to begin cutting the welds planes have the contractual ability to say no you can't do that i don't know that he had the contractual that's important the contract is what governs who who had the authority to do what here what mr going to testify that he had stop work authority and while i can't point to the direct provision in the contract i do believe that the contract contain lawyer as i'm sorry our position is that the evidence shows that he r t a assumed this duty to ensure the safety of the workplace as shown by their own admission to bessie and so the preliminary question is does e r t have a duty to ensure it would that be an amendment to the contract because the contract did not provide that are you saying that the contract said one thing but the action you took was contrary to what the what the contract mean i mean the reason why this case is being argued is because these things are boilerplate in their understanding is in an industry and i'm not in it but i over the years have seen that in this courtroom so i  guess i would point the court to the crane case to do pray to teeter versus apollo more versus safeway were some cases we cited where the court the court looks on the one hand of what is the contract say about who's responsible for safety but then looks at the other issue of was there an assumption of independent negligence and i think what is interesting in we started to pray the more case the teeter case is that if there is some evidence some evidence that they assume in this particular duty for the safety that i understand what the state of the record so far anyway is that  i am confusing who's buying who is supposed to do it there are happened and i take it that the company man on the rig was not aware of that the company man stated he was unaware of the progress of the welds  the shift change but i think the question of whether or not e r t number one assume the duty of ensuring the safety of the plant looks primarily has must look to this evidence what evidence is there that they assume safety for the play and what your team has argued is sort of gone on a couple of ways number one they say we only acquired this duty or took on this duty to  comply with a federal regulation limit citing a regulation that requires them to insure the safety of a contractor work plan and there's no testimony that's the reason they did it they've also argued in a roundabout way that what our letters to bessie said was that we didn't violate thirty c f r two fifty one of seven which requires that operations be poor performed in a safe and workman like manner and their basic argument there is look just this duty violated a regulation for which there is no free standing cause of action therefore the negligence can exist but violate have any evidence for children boys were given specific instructions on how to go for independent negligence the question is simply is there something evidence that e r t s assume the duty of ensuring that said safety of the workplace in their letter to bessy they admit that that was their job  deposed stephen france who was their corporate representative asked him how do you discharge a duty of ensuring that the workplace the safely communicated he discussed we have in other ways you do that is you hire the absolute best contractor you can get ok so what you're saying is never mind my that this was supposed to be the premier whatever de de installing of a rig company because you're liable anyway but i don't think that's what they say are what we're saying why isn't it i mean isn't that the impact of what unless you're got two ways to make a case here you've got one way says oh well he was out there the company man was out there day and night and he was telling them what to do so he is in their responsibility you're not making that argument i don't think and the other way is to say well somehow or other as a matter of law what happened here makes  r t liable that's right but i think the question is if they say we have this turnkey contract and we rely on etc that's what they do that is what they said but what kind of only what they say if it's what they do in that industry judging by what  here over the last thirty years it is but in but what the what craning those one have a lot of cases stands for is that even when they rely on somebody to do that once they take on a particular duty even if it's should be within the province of the contract  take on what is the sceptically what's the deal this specific duty is the duty that he admitted it took on to beseen which was it to ensure the safety of the work plan and its proper communication once there is some evidence that they assumed that duty and it's contained in the letter and other evidence the question becomes wasn't in fact a safe plan and was it in fact properly communicated your honor and i think that gets a little bit into then this question of the relying on on the performance of o s f but the preliminary question is ensuring this plant is safe and as we have discussed when that was going to go and authorized that the fifty percent rule not be followed or was that douglas's decision and was going to informed that the fifty percent rule was not going to be followed go it was not informed that it would not be followed but the record shows that the fifty percent cut rule was not understood by many people on the pla bessie report and other parts of the record that various workers didn't know what fifty percent meant there was dispute across the various companies about what fifty percent met there was deposition testimony from mr douglas of this was a rule of thumb was exactly sure which two would be cut in this situation it's far from an industry standard which is why we say at that point we have an unsafe work plan and as evidence that he did not discharge its assumed duty to ensure that that place was and that the fifty percent rule would be followed i believe mr going to testify that it was so it was the worker bees on the platform who varied from it well the fifty percent rule event seeks to create liability in all company for the negligent actions with an independent contractor that's up that's what this is you can package it seven ten different ways the same duty whatever that's the bottom sadder control this case we agree with the district court that the regulations adopted pursuant to the outer continental shelf lands act provide no basis for an implied cause of action against chevron nor did those regulations create an independent duty under louisiana law on the part of chevron the platform owner in principle to protect the contractors employees from hazards created by the contractor is that not what w done here exactly now there was discussion we hired o s f because they are one of the premier companies in platform removal we paid them my clients not we i didn't pay  clients paid four million dollars on a turnkey basis gave them all of the plans they all drawings everything they needed that's uncontroverted the rafter oh they what they gave him were the plans that showed how everything was set up at the moment yes but they didn't give him the work plans for how i paid to be clear about that yes thanks there are no we did not give them the work plans we gave them the background material from which to follow who's going to follow it fifty percent of all they did and which was truly tragic about this there were i believe it was either sixteen or twenty pad wells that held this tank in place the mr votes is not knowing they've all been caught gets on there he starts to cut the welds on that last catwalk and that's when the accident happened there was nothing holding there was nothing holding the bag in place what was mr  told all he was told was we're going to follow the fifty percent rule there's no there was no change in the order of the activities the plan the initial plan was to take take the attachments to follow their fifty percent rule because of miscommunication within them to within their own organization and how do you respond to to the argument that the letter that was written by mr jones to bessie seems to imply that assumed my duty to protect the safety of the workers it seems that that letter seems to represent that was about to come of that  john that letter based basically through that letter the appellants are arguing that e r t is obligated to ensure you've heard him say reference to louisiana law and its independent contractor defense so mr jones writes this letter seeking in response to the regulatory violation the claim regulatory violation it's irrelevant to the duty owed under louisiana law and also if if you really think if you read the entire letter and you see what he's what he's what he's saying and this is if you would and i hope whatever the that you take a look at this page is seventeen o four and seventeen zero five the record was where that language  adds the expert this is from that same letter as the expert contractor overseeing platform decommissioning o s sap was responsible for several levels of oversight to see to it that if plans and rules are followed by its employees what's in that letter o s f is one of the most experienced and widely used companies specializing in platform decommissioning work an operator like e r t does not perform decommissioning activities and that is why are specialized expert contractors to do the work and then and and you may conclude with the statement that if an ink is appropriate in this instance then operators like e r t would be required to supervise every employee of every and independent contractor is exactly right who ensure that the employee did his work regularly and safely that is not the law it would it would change completely what goes has gone on for decades out in the on the outer continental shelf it is yet another wish to make the oil company i don't blame him for wanting to do that but but judge you hire somebody to come to work at your house contractor you hire the best contractor the business and he's on the roof doing some work and you don't follow rules and he falls and you should be liable oh i understand what your argument is and i understand is it just seems to me that if we buy here is we change the basic rules of engagement and what goes on on the outer continental shelf and let me give you just me say i'm i'm not arguing for or against there and i think th roberson the arco and then you get into the other case the taste is talking about in which it's been argued that because the federal regulations that the oil company is the insurer of  l the safe job performance the independent contractor and i mention they do pretty case but there's others also going back to also the shell five sixty one f second eleven seventy eight  case and just let me read this one quote from the board case board v texaco it is the planners position that because of these regulations a platform owner who is otherwise free of negligence and who hires an experienced independent contractor and assigns to the contractor some work should be legally responsible for the negligent work methods utilized by the contractor we feel that it would be er to so interpret these regulations absent a clear indication from congress that this was our intent our reading of the legislative history of the out of town notion of land sac uncovers no such intent this is our case also later and fruit the same three thirty seven f thirty five fifty eight the same conclusion in the course of dates the regulations govern the parties joint and several liabilities these are the government not amongst themselves amongst themselves  decided by reference to louisiana law and what is there was some mention about the independent negligence of an independent duty of a r t what is what is that law duty extends to maintaining premises and reasonably safe condition and of warning invitees of any concealed or hidden defects on the premises not created by the independent contractor a platform created by the contractor even where a principal has knowledge of the danger created by its independent contractor to which the contractors workers are exposed it has no affirmative duty to intervene and is not liable for failing to do so well here was to go into didn't know they were going to follow their fifty percent rule and then finally into the duty of a platform owner to ensure safety of the premises is implicated only when the owner creates the hazardous condition and  e the uncontested facts demonstrate that's not the case the i can taste test the facts demonstrate that oh s after remained responsible for its safe job performance it's uncontroverted the record you show me there's nothing in the record that o s f was looking to e r t to tell him how to do his work why would we pay why would my client pay four million dollars  f if it was going to have to tell him how to do the work so the judge king you're absolutely correct the cases are legion and cases are correct because when you h contractor who represents that he has the expertise and he does have the expertise and his guys make a tragic mistake the principal should not be liable for that mistake by the  and you're that's a style which in the case law going back twenty years are you saying that a contract a contract and that's the way it's going to be i mean i guess what i'm asking is the facts of this case do not show that mr going to took an active part do you concede that in maybe some other situation where there is evidence that the company's supervisor boss or webber took an active  role in deciding how things are done that possibly we could go beyond the contract and say well well the contract said some of the evidence shows that the company actually took an active role your honor i agree completely if there were  we want we want a rush we'll pay him four million dollars on a on a turnkey operation take your time it was up to them you know that's and that's the case so there were some communication issues you've got a hard case here no wonder they got such a good lawyer your honor i think there is hard law in this case there's no doubt about that i think the facts and the evidence are relatively simple the question for the court on summary judgment is does the evidence exist and in the light considered most favorable to the votes has does it raise some issue  fact of whether or not you are to perform a specific duty when you want your be primarily cited on that is to let it loose but the letter signed maybe some good legal only reason by those in that much impact what else is there besides the letter communication to the workers there is the declaration of job banco discusses the fact that mr going as had ultimate authority over the steps taken on the platform there is the testimony of joe douglas who was the bard superintendent who stated that he needed the agreement i think these pieces taken in context as well with the letter prove a very important point that there is some evidence of e r t s responsibility for you have a company man you have a safety manual does that get you passed by carious liability no but in cases like to pray in crane the court looked and said not the part for purposes of vicarious liability but for independent duty what do you  praise i think is very instructive in this case court looked at two bases possible bases for independent negligence one was the claim that chevron took over safety for the whole rig right and is the basic fact pattern that we see company man work manual occasional walk through the court said no that doesn't get to that duty and we realized that this is kind of an end around on the vicarious liability jurisprudence that doesn't get you operational control we're not going to say it gets you an independent duty but then the court looked and said did you acquire a very discreet and limited duty when you approved the placement of this rig and motor on the platform because that's what caused the accident the placement of this rig with a motor extending over the gulf and the man fell in into the gulf and what the court looked to then and to pray was is there any evidence that your approval of the plan right that your discussion of this plan encompassed the safety of the plan to some degree court for there's  no evidence that there was any of this in do prayer but what we have here is this admission now why they took on that duty i don't know they didn't have to take on that duty but the point is they did and when they assumed that duty they become liable and e r t's argument that we only took on this duty to comply with two fifty one of seven it doesn't pass muster to fifty one of seven doesn't say what you have to do to perform safely on the gulf there's no checklist what to fifty one of seven says is whatever it is you decide to do out there whatever task you've been given whatever task you give yourself perform it in a safe and workman like manner what this letter says is not you know  we complied with you know we took on this duty to comply with to fifty one of what this letter says is we complied with two fifty one of seven by performing our duty safely and in a workman like manner and whether this is a an operator saying you know i don't have charge over the whole platform but i'm going to make sure it's our job to make sure your scaffolding say or your food services or your aviation or your basket transfers once they get there they have that discrete duty separately apart from the whole platform and we're not arguing that the duty in this case was for the entire platform or arguing in line with credit crane and even with do pray that this is a discreet duty are you arguing this is true as a matter of federal law are you is that what you're arguing or you're saying never mind about the louisiana law we're saying it's a matter of federal law they have this responsibility now we're saying this is this is louisiana law is that they can assume this duty what they've said is that because they're negligent act happened to also violate a federal regulation for which there is no free standing per se cause of action the negligence can't survive  unworkable construct every time someone is injured or killed on the shelf due to negligence by definition it violates two fifty one of seven something wasn't done safely the regulatory violation is incidental to the act of negligence we're not