* Dis trict Judge for the Eastern District of Pennsylvania,

sitting by designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-3382

SHARON S. DUPRE, Widow of Russell P.

Dupre, individually and as natural

tutrix of her minor child, Beau

Nicholas Dupre,

Plaintiff-Appellant,

versus

CHEVRON U.S.A., INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

(April 25, 1994)

Before POLITZ, Chief Judge, J ONES, Circuit Judge, and FULLAM, *

District Judge.

POLITZ, Chief Judge:

Sharon S. Dupre, individually and as natural tutrix of the

minor B eau Nicholas Dupre, appeals an adverse summary judgment

dismissing their claims against Chevron U.S.A., Inc. for damages

resulting from the death of Russell P. Dupre, their husband and2

father, respectively. For the reasons assigned, we vacate and

remand.

Background

Russell Dupre, a driller employed by Sundowner Offshore

Services, Inc., was killed whi le working on Chevron's outer

continental shelf platform located off the coast of Louisiana.

Sundowner contracted with Chevron to install a drilling rig on

Chevron's platform and to perform workover operations on its wells.

Chevron reserved and exercised its right to approve Sundowner's rig

installation. The platform revision resulting from installation of

Sundowner's r ig could only be accomplished with the specific

permission of Chevron. This permission was given.

Unde r the Chevron-approved plan Sundowner placed its rig on

the outer edge of the platform with a portion extending beyond the

brink of the platform and over the sea. The Sundowner rig stood

approximately 21 feet above the drilling deck of Chevron's platform

and it was composed of several component parts. A traction motor

blower sat atop the traction motor which was housed on a drilling

skid located well above the rig rotary table and platform floor.

Guardrails protected the perimeter of Chevron's platform. The

addition of Sundowner's rig, which added a workspace above the

rails and over the edge of the platform, markedly changed the

dynamics of this area of Chevron's platform. No guardrails or

other protective device were built around the outer edges of the

elevated Sundowner rig. None were placed around the traction motor

at the top of the rig. Access to the traction motor, which1 Dupre also sued I.M.I. Engineering Co., the manufacturer of

the rig, who was released on summary judgment. That judgment has

not been appealed.

3 required regular maintenance and inspection, was hampered by its

limited work area and the outboard location of its service port.

Chevron's safety inspectors checked the rig for regulatory and

safety compliance but did not comment on any dangers involved in

the rig configuration.

One month after installation of the rig, Russell Dupre and

Johnny Walker, a fellow Sundowner employee, were instru cted to

climb to the top of the rig, remove the blower motor, and inspect

the inside of the traction motor. The traction motor had begun

smoking and operations could not resume until it was repaired.

D upre and Walker unbolted the blower motor but could not p ry it

loose. They then rocked the motor back and forth in order to

loo sen it. The motor suddenly broke free and fell toward the

outboard side of the rig. Dupre lost his balance and was pulled or

fell off the structure, falling to his death in the sea.

Sharon Dupre, individually and in her representative capacity,

filed suit against Chevron alleging negligence and strict

liability. 1 The district court granted summary judgment to

Chevron, considering only vicarious liability principles. Sharon

Dupre timely appeals, focusing on her negligence claim under

Louisiana Civil Code article 2315.

Analysis

We review grants of summary judgment de novo

, app lying the2 Wilkerson v. Columbus Separate School Dist.

, 985 F.2d 815

(5th Cir. 1993).

3 Id.

4 The Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et

seq.

, extends the law of the adjacent state, which becomes the law

of the United States, to actions arising from injuries on outer

continental shelf platforms.

5 See Seneca v. Phillips Petroleum Co.

, 963 F.2d 762 (5th Cir.

1992) (distinguishing claims for direct liability from claims based

on vicarious liability).

6 The dissent suggests that we are here deciding the issue of

liability. We do not. Our focus is on Chevron's duty separate and

apart from vicarious liability. In that regard we note that

vicarious liability was the issue before the court a` quo and was

the issue in many of the cases cited in the dissent. The factual

determination of liability remains for the trier-of-fact.

7 La. Civ. Code art. 2315.

4 same standard as that applied by the district court. 2 Summary

judgment is appropriate only when there is no genuine issue of

material fact and the moving party is entitled to judgment as a

matter of law. 3 Applying Louisiana law 4 we find summary judgment

inappropriate. Sharon Dupre filed a claim against Chevron alleging

that it negligently and directly caused her husband's death. She

did not merely assert a vicarious li ability claim; the district

court erred in so treating her complaint. 5 Concluding that Chevron

owed a duty to Russell Dupre under Louisiana Civil Code article

2315, we must vacate and remand for further proceedings. 6

Article 2315 provides that "[e]very act whatever of man that

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

repair it." 7 In determining "fault," Louisiana courts apply a

duty-risk analysis composed of three parts:8 Mundy v. Dep't of Health and Human Resources

, 620 So.2d 811

(La. 1993); see also Ellison v. Conoco, Inc.

, 950 F .2d 1196 (5th

Cir. 1992), cert

. denied , 113 S.Ct. 3003 (1993).

9 Roberts v. Benoit

, 605 So.2d 1032 (La. 1992); s ee also

Ellison ; Owen v. Kerr-McGee Corp.

, 698 F.2d 236 (5th Cir. 1983);

Bourg v. Texaco Oil Co., Inc. , 578 F.2d 1117 (5th Cir. 1978).

10 Roberts ; see also Ellison

.

11 Mundy , 620 So.2d at 813; see also Owen , 698 F.2d at 239.

1 2 Boudreaux v. Exxon Co., U.S.A.

, 451 So.2d 85 (La.App.), writ

denied

, 458 So.2d 119 (La. 1984); S toute v. Mobil Oil Corp.

, 297

So.2d 276 (La.App.), writ denied

, 300 So.2d 839 (La. 1974); see

also Bourg

.

5 (1) Was the defendant's conduct a cause-in-fact of

the harm?

(2) Was a duty imposed on the defenda nt by a

general rule of law to protect this plaintiff

from this type of harm arising in this manner?

(3) Was that duty breached?

In Louisiana the existence of a duty and its scope are questions of

law. 8 Duty varies depending on the facts, circumstances, and

context of each case 9 and is limited by the particular risk, harm,

and plaintiff involved. 10 On the facts presented in this case, we

find that a duty existed.

As a general rule, "the owner or operato r of a facility has

the duty of exercising reasonable care for the safety of persons on

his premises and the duty of not exposing such persons to

unreasonabl e risks of injury or harm." 1 1 This duty extends to

employees of independent contractors, for whose benefit the owner

must take reasonable steps to ensure a safe working environment. 12

Chevron owed a duty to Russell Dupre and other workers aboard its1 3 Although the violation of these regulations does not

constitute negligence per se

, they may b e relevant in the

establishment of the standard of care owe d by a particular

defendant to a particular plaintiff. Romero v. Mobil Exploration

and Producing North America, Inc. , 939 F.2d 307 (5th Cir. 1991).

14 33 C.F.R. § 142.4(a).

15 33 C.F.R. § 142.4(c)(1)(2).

6 platform to ensure that the platform was reasonably safe. As

demonstrated by the plethora of regulations, 13 work aboard an

offshore platform is precarious at best. Slipping and losing one's

balance, a not unusual occurrence on oil-producing rigs, may become

life threatening when the proper safety mechanisms are no t in

place. A broken ramp or a missing rail may become the cause of

severe injury or death. Such safety features are required for the

precise purpose of preventing undue consequences of falls which may

end abruptly in the sea hundreds of feet below.

Sharon Dupre asserts that Chevron neglected certain

regulations and that this was the cause of her husband's death.

33 C.F.R. § 142.4 provides that holders of leases on the ou ter

continental shelf "shall ensure that all places of employment

. . .

are maintained in compliance with workplace safety and health

regulations

. . . and, in addition, free from recognized hazards." 14

Recognized hazards include conditions "[g]enerally known among

persons in the affected industry as causing or likely to cause

death or serious physical harm to persons exposed" and conditions

"[r]outinely controlled in the affected industry." 15 Section

143.110 controls the placement o f guardrails, explaining that

"[e]xcept for

. . . areas not normally occupied, the unprotected16 33 C.F.R. § 143.110(a).

1 7 American Petroleum Ins titute: Recommended Practice for

Occupational Safety for Oil and Gas W ell Drilling and Servicing

Operations (RP 54) 5.3.1.

1 8 See Verrett v. Louisiana World Exposition, Inc. , 503 So.2d

203 (La.App.), writ denied

, 506 So.2d 1229 (La. 1987); see also

Robertson v. Arco O il & Gas Co. , 948 F.2d 132 (5th Cir. 1991);

Zepherin v. Conoco Oil Co. , 884 F.2d 212 (5th Cir. 1989).

1 9 See

, e.g.

, Ham v. Pennzoil Co.

, 869 F.2d 840 (5th Cir. 1989),

which suggests that knowledge or the express or implied approval of

a dangerous situation implicates liability.

7 perimeter of all floor or deck areas and openings shall be rimmed

with guards and rails or wire mesh fence." 16 The American Petroleum

Institute further requires that "[p]rior to commencing rig-up

operations, the planned arrangement of all equipment to be placed

on the location should be revi ewed to eliminate potentially

hazardous conditions." 17

The summary judgment record contains expert testimony to the

effect that the set-up and placement of the Sundowner rig on

Chevron's platform created a recognized hazard. According to this

testimony the rig's placement on the edge of the platform, coupled

with its insufficient work area and lack of guardrails around the

traction motor, created a danger to the workers required to service

the motor. Unlike the typical vicarious liability case in which

the independent contractor created the danger, 18 in this case

Chevron specifically authorized any hazardous situation created

when it expressly approved the plan submitted by Sundowner for the

installation and set-up of its rig. 1 9 Upon completion, as noted,

this addition changed the dynamics of the platform workbase. With8

Chevron's approval, certain of the rails around the platform became

useless, their function o f preventing undue consequences of

accidental falls neutered, as the "normally occupied areas" of the

platform in critical part became elevated beyond their reach. The

platform, with its appropriate safety devic es, was thus

reconfigured into a new model, one which called for new measures to

ensure safety in the newly created normally occupied areas. Such

additional safety features, like those on the "old" platform, would

have as their purpose the prevention of accidental in jury to

workers such as Russell Dupre

-- specifically, to prevent employees

from falling overboard with resulting serious injury or death.

We thus conclude that Chevron had a duty to take reasonable

steps to make and keep its platform safe for workers thereon. This

duty included areas of its platform altered or modified with its

knowledge and approval. Chevron had the duty of assuring that any

modifications or additions it allowed to its platformwould not

contain recognizable hazards and that all normally occupied areas,

including any newly created normally occupied areas, would continue

to be adequately protected.

We cannot say as a matter of law that Chevron did not breach

this duty, therefore summary judgment in favor of Chevron was

inappropriate. The question is a factual one; further proceedings

are required.

The judgment of the district court is VACATED and the matter

is REMANDED for further proceedings consistent herewith.Edith H. Jones, Circuit Judge, dissenting:

Because a proper application of Louisiana law indicates

that Chevron was entitled to the summary judgment granted by the

district court, I must respectfully dissent.

Chevron hired an experienced independent contractor to

perform drilling work on its platform that required expertise that

Chevron itself did not possess. The entire rig that was involved

in Mr. Dupre's unfortunate accident belonged to, was designed by,

and was operated by Sundowner. Mrs. Dupre certainly could look to

Sundowner, her husband's employer, for compensation. I disagree,

however, that Chevron owed Mr. Dupre a duty under Louisiana law

under the facts of this case.

The majority argues from first principles of Louisi ana

tort law, but in fact, I have found no Louisiana case that has held

a principal liable for the injury of an independe nt contractor's

employee on the basis of the principal's duty to maintain a

reasonably safe workplace. By contrast, a long line of summary

judgment cases founded on Lou isiana law supports the decision of

the district court here. For instance, in B outwell v. Chevron

U.S.A., Inc.

, 864 F.2d 406 (5th Cir. 1989), which arose from an

offshore platform injury, the defendant's "company man" was aware

that the independent contractor had put holes in the deck of the

platform. The court held, however, that Chevron was not negligent

when an independent contractor's employee fell in one of the holes

because Chevron retained no rights of supervision that limited the

independent contractor's ability to perform th e work in its own

way. Similarly, in G rammer v. Patterson Servs., Inc.

, 860 F.2d 63910

(5th Cir. 1988), cert. denied , 491 U.S. 906 (1989), the principal

required its independent contractor to change its test to ensure a

h igher pass rate for acceptable pipe fixtures. Nevertheless, it

was held that the defendant did not exercise sufficient operational

control over the independent contractor to be held liable for

negligence because its actions exhibited no control over the manner

in which the work was to be performed. Particularly analogous is

Ainsworth v. Shell Offshore, Inc.

, 829 F.2d 548 (5th Cir. 1987),

cert. denied

, 485 U.S. 1034 (1988), in which the Shell "company

man" on the offshore platform had knowledge that its subcontractor

was working its crew without lights at night; this court held that

Shell had no duty to intercede in its subcontractor's decision to

work without lights. S ee also Hawkins v. Evans Cooperage Co.,

Inc.

, 766 F.2d 904 (5th Cir. 1985) (principal not liable because it

did not exercise control over the independent contractor and had no

duty to discover and reme dy hazards created by the acts of the

independent contractor).

The majority has accepted the plaintiff's att empt to

d istinguish these uniformly adverse precedents by asserting that

Chevron is li able for its own negligence. The record does not,

however, support this position. Contrary to the implication of the

majority opinion, nothin g in the record before us suggests that

Chevron reserved and exercised a right to approve

-- on safety

grounds

-- the installation of the Sundowner V. There is no reason

to suppose that Chevron's approval of Sundowner V was related to

t h e safety of the rig, as the rig was entirely composed of11

Sundowner equ ipment. The decision whether to place guardrails

around the outer edges of the elevated Sundowner rig and the

traction motor atop it were the responsibility of Sun downer;

Chevron had nothing to do with the de sign and use of Sundowner's

own equipment. Moreover, the fact that the Sundowner V extended

beyond the outer edges of the platform was, as indicated in the

affidavit of the plaintiff's own expert, common offshore practice.

It cannot be overemphasized that Ch evron's mere approval of

Sundowner's installation drawings cannot create a fact issue on

Chevron's possible negligence under our past authorities. If that

is what the majority holds, their ruling is inc onsistent with

Boutwell and Ainsworth

, where the acquiescence of the principal in

arguably dangerous practices involving the principal's platform did

not create a duty.

Moreover, the majority cannot bootstrap their finding of

a duty from the fact that Chevron provided safety inspectors who

occasionally checked Sundowner's rig for safety compliance.

Louisiana law preempts such reasoning. S ee LeJeune v. Shell Oil

Co.

, 950 F.2d 267 (5th Cir. 1992); Duplantis v. Shell Offshore,

Inc.

, 948 F.2d 187 (5th C ir. 1991). Chevron's inspection

checklist

-- which was signed by both a Chevron an d a Sundowner

representative at each inspection -- explicitly provided:

It is understood that com pliance with all applicable

legal requirements and the safe conduct of all drilling

operations are and r e main the responsibility of any

contractor executing a drilling contract or operation for

Chevron. Chevron's maintenance and use of the above and

foregoing checklist procedure shall in no manner

whatsoever modify, waive, or alleviate th e duties and

obligations of contractor or modify or enhance Chevron's12 duties or responsibilities with respect thereto whether

under contract or by law or otherwise.

See, e.g., LeJeune

, supra (the relationship between the principal

and independent contractor is determined in large m easure by the

terms of the contract even though Shell had a manual for

independent contractor safety and examined the area to be worked on

to determine whether it was safe); Boutwell

, supra (the language of

the contract between the principal and its independent contractor

dictates and is primarily controlling when determining the

responsibilities of the parties).

It is also erroneous to cite various federal regulations

in support of a duty running from Chevron to Mr. Dupre to provide

a workplace free from recognized hazards. The majority focus on

testimony to the effect that the set-up and placement of the

Sundowner rig on Chevron's platform created a "recognized hazard,"

a term used in some of the regulations. However, this circuit has

rejected the argument that an MMS regulation can create a duty upon

a platform owner. S ee Romero v. Mobil Exploration and Producing N.

Am., Inc.

, 939 F.2d 307, 309-10 (5th Cir. 1991) (concluding that no

cause of action arises merely from the breach of an MMS regulation

because the regulations were no t created solely to provide

safeguards or precautions for the safety of others). A private

citizen is not afforded a cause of action because of a violation of

an MMS provision. Instead, private citizens are merely empowered

to commence civil actions to compel compliance with the provisions.

See id. at 309-10 n.5.13 Under Louisiana law, Sundowner

-- not Chevron

-- had the

primary responsibility of providing its employees with a safe place

to work, including safe equipment upon which to work and safe

methods by which to work. S ee Kent v. Gulf States Utils. Co.

, 418

So.2d 493 , 500 (La. 1982). Thus, even if Chevron could possibly

have prevented this freak accident by employing additional safety

measures, Chevron did not have a duty to Sundowner's employees who

had to work on what turned out to be Sundowner's unsafe equipment.

See, e.g., Ainsworth

, supra

. Chevron cannot be held liable when

Chevron did not affir matively create the hazardous situation by

requiring Sundowner to use dangerous equipment or methods. See

Kent

, supra.

Those are the lessons of previous cases based on

Louisiana law. If the majority's artful reconstruction of duties

between principal and independent contractor's employees is

adopted, however, tho se authorities become meaningless. One can

hardly distinguish from this case a case in which a Chevron

employee observed oil spilled on the decks or scaffolding hastily

erected by the independent contractor. If Chevron allowed work to

continue, would it not run afoul of the newly defined duty to

provide a reasonably safe workplace? Such a result would fly in

the face of the above-cited authorities.

To the extent the majority's holding is inconsistent with

our previous decisions and with Louisiana tort law, it has little

precedential force. I must respectfully dissent.