* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60045

Summary Calendar

TRACY LEE BOYD

Plaintiff-Appellant

v.

GEORGIA PACIFIC CORPORATION

Defendant-Appellee

Appeal from the United States District Court for the 

Southern District of Mississippi

USDC No. 2:06-cv-253

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

In this appeal, Plaintiff-Appellant Tracy Lee Boyd (“Boyd”) argues the

district court erred in granting summary judgment on his premises liability

United States Court of Appeals

Fifth Circuit

F I L E D

May 14, 2008

Charles R. Fulbruge III

Clerk
No. 08-60045

2

action against Georgia Pacific Corporation (“GP”). For the reasons below, we affirm.

I.

On July 19, 2003, the date of the accident, Boyd was a painter employed

by an independent contractor Graves Services. Pursuant to a contract between

Graves Services and GP, Boyd was at the GP facility in Taylorsville, Mississippi

to pressure wash, sandblast, and paint an elevated loading rack. After pressure

washing the loading rack, Boyd began drying the upper level of the rack with an

air hose. While drying the loading rack, Boyd walked backwards through an

open access gate and fell approximately thirteen feet to the ground below and

was injured.

Boyd had more than twenty-five years of experience in the painting and

sandblasting field, which frequently required him to work in elevated locations

including areas such as the loading rack in question. Boyd admitted that when

the accident happened he had been working on the loading rack for

approximately five hours and that he was aware of the access gate.

II.

We “review a district court’s summary judgment ruling de novo, applying

the same standard as the district court.” Nationwide Mut. Ins. Co. v. Lake

Caroline, Inc., 515 F.3d 414, 418 (5th Cir. 2008). Summary judgment is proper

when the “pleadings, depositions, answers 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.” FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.

317, 322–24 (1986). When granting summary judgment, a court must view “the

facts in the light most favorable to the non-movant.” Pratt v. City of Houston,

Tex., 247 F.3d 601, 606 (5th Cir. 2001) (citing Walker v. Thompson, 214F.3d 615,

624 (5th Cir.2000)).
No. 08-60045

3

III.

Under Mississippi law, a premises owner or occupier has a duty to a

business invitee to “exercise reasonable or ordinary care to keep the premises in

a reasonably safe condition.” Jones v. James Reeves Contractor, Inc., 701 So. 2d

774, 782 (Miss. 1997) (citing Jackson Ready Mix Concrete v. Sexton, 235 So. 2d

267, 270 (Miss. 1970)). The premises owner or occupier, however, “is not liable

for injuries which are not dangerous or which are, or should be known to the

business invitee.” Id.; see also Stokes v. Emerson Electric Co., 217 F.3d 353, 357

(5th Cir. 2000) (“dangerous conditions of which contractors had actual or

constructive knowledge were deemed open and obvious to them and therefore

could not provide a basis for recovery”). Additionally, the owner or occupier need

not protect a business invitee “against risk arising from or intimately connected

with defects of the premises, or of machinery or appliances located thereon,

which the contractor has undertaken to repair.” Id. (quoting Jackson Ready

Mix, 235 So. 2d at 271). Generally, if the contractor has control over the work

being performed and the work area where that work is being done, the owner

has no liability. The key question is whether the owner or occupier “maintains

any right of control over the performance of that aspect of work which gave rise

to the injury.” Id. (quoting Magee v. Transcontinental Gas Pipeline Corp., 551

So. 2d 182, 186 (Miss. 1989)).

We agree with the district court that Boyd did not demonstrate that GP

contractually or de facto maintained a right of control over performance of that

aspect of the work that gave rise to his injuries or the area where the work was

done. There is no evidence that GP retained or exercised control over Boyd or

Graves Services in the relevant pressure washing, drying, and painting of the

loading rack. Additionally, Boyd testified that he had years of experience in

similar work and in similarly elevated circumstances, that he had been working

in close proximity to the gate in question for approximately five hours, and that
No. 08-60045

4

he was aware of the danger posed by the site and its attendant surroundings.

Boyd knew that the gate was there and the danger it posed. According to his

admissions, he backed through the gate while focusing on the ground. Thus,

essentially for the reasons assigned by the district court, we affirm the district

court judgment.

AFFIRMED.