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not be published and is not precedent except under the limited circumstances set forth in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. 09-30553

Summary Calendar

JAMES OFFORD; PATRICIA OFFORD,

Plaintiffs – Appellants

v.

L & W SUPPLY CORPORATION, doing business as Seacoast Supply,

Defendant – Appellee

v.

AMERICAN CASUALTY COMPANY, 

Intervenor – Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:07-CV-8704

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

James Offord appeals the district court’s grant of summary judgment in

favor of defendant L&W Supply Corporation d/b/a Seacoast Supply (“Seacoast”)

on his negligence claim. We affirm for the following reasons. 

United States Court of Appeals

Fifth Circuit

F I L E D

December 22, 2009

Charles R. Fulbruge III

Clerk
No. 09-30553

2

BACKGROUND

James Offord injured his head and spine when he fell off the trailer bed of

an eighteen-wheeled truck. His employer, Western Express, had been hired by

United States Gypsum Corporation (“Gypsum”) to deliver sheetrock to Seacoast.

Seacoast’s employees were responsible for unloading the sheetrock from Offord’s

truck, but Offord had to first remove the tarps used to cover the load. Offord

climbed on top of the load to remove one of the tarps, slipped on a wet plastic

sheet, and fell to the ground below. Although he received workers’ compensation

benefits from his employer, Offord sued both Gypsum and Seacoast for

additional damages. The district court entered summary judgment in favor of

Seacoast and Gypsum on all claims. Offord now appeals the district court’s

grant of summary judgment in favor of Seacoast only.

STANDARD OF REVIEW 

“We review the district court’s grant of summary judgment de novo.”

Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary

judgment is appropriate only “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(c).

DISCUSSION

Offord contends that Seacoast unreasonably failed to warn him not to

climb on top of his truck, provide him with safety “fall” equipment, or otherwise

help him remove the tarp. He also asserts that Seacoast had a duty to “inform

and require plaintiff to follow [Seacoast’s] safety rules,” which prohibit climbing

on top of trucks to remove tarps, and to follow OSHA guidelines. Though Offord
No. 09-30553

3

mainly contends that Seacoast is independently liable for failing to provide him

with a safe work environment, he begins by arguing that Seacoast is vicariously

liable for, presumably, his employer’s negligence. 

Under Louisiana law, a principal is generally not liable for the torts of its

independent contractors. See, e.g., Roberts v. Cardinal Servs. Inc., 266 F.3d 368,

380 (5th Cir. 2001), cert. denied, 535 U.S. 954, 122 S.Ct. 1357 (2002). There are

two exceptions to this rule. A principal may be liable if (1) it maintains

operational control over the injury causing activity or (2) the activity is

ultrahazardous. Id. The district court found that neither exception was

implicated. On appeal, Offord argues that the first exception applies because

“Seacoast exercises complete control of the loading and unloading of loads.” 

Nothing in the record indicates that Seacoast controlled the manner in

which Offord was to complete his work. As the district court noted: 

[T]he facts presented . . . establish only that Seacoast ordered a load

of sheetrock from U.S. Gypsum, that U.S. Gypsum contracted with

Western Express to deliver the sheetrock to Seacoast, that Western

Express employees covered the load with plastic tarps for weather

protection, and that Seacoast employees would accept and unload

the sheetrock if its condition was found satisfactory upon inspection.

 [Seacoast’s] standard procedure was simply to provide adequate

space for untarping, and otherwise rely upon the expertise of the

delivery drivers to accomplish this task in accordance with their

training, their employer’s directives, and any requirements imposed

by the contractual arrangement between the shipper and

transportation company. 

The district court further noted that Offord, “not someone at Seacoast, decided

how to remove the tarp” and “that no one forced or directed him to climb up on

the load or did anything that caused him to be on the load.” These findings are

supported by the record. The district court was therefore correct to hold that
No. 09-30553

4

Seacoast should not be held vicariously liable for Offord’s injuries. 

The district court was also right that Offord has not established any

independent fault on Seacoast’s part. “Generally, the owner or operator of a

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

the premises and the duty of not exposing such persons to unreasonable risks

of injury or harm.” Manning v. Dillard Dep’t Stores, Inc., 753 So. 2d 163, 165

(La. 1999). The extent of that duty is determined by the particular facts of the

individual case. Crane v. Exxon, 613 So. 2d 214, 221 (La. Ct. App. 1992). Offord

argues that Seacoast negligently failed to provide him with safety equipment

and help removing the tarp. In support, he cites several cases in which a

principal assumed the duty to provide a safe work environment by actively

supervising its independent contractors. Id.; Moore v. Safeway, 700 So. 2d 831

(La. Ct. App. 1996). For reasons already discussed, these cases are

distinguishable. There is no evidence that Seacoast controlled or actively

supervised Offord’s work. Offord points to no case imposing a duty on

principals to provide safety equipment or assistance to its independent

contractors, absent such a showing. See Davenport v. Amax Nickel, Inc., 569

So. 2d 23, 28 (La. Ct. App. 1990) (“We are not aware of a Louisiana statute or

jurisprudence which imposes a duty” on a principal to provide an independent

contractor “with adequate fall protection.”). 

The Occupational Safety and Health Act standards, according to Offord,

establish that Seacoast breached a duty of care to him. The duty of one

employer to comply with OSHA standards for the benefit of another employer

has only been recognized by this circuit in the multi-employer construction work

site context. Am. Petroleum Inst. v. OSHA, 581 F.2d 493, 509 (5th Cir. 1978).
No. 09-30553

5

This court has rejected any such duty outside the multi-employer work site

context. See Horn v. C.L. Osborn Contracting Co., 591 F.2d 318, 321 (5th Cir.

1979); Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675, 675 (5th Cir. 1975)

(per curiam). Offord fails to brief whether such a worksite existed here and the

record does not suggest that Seacoast acted as a general contractor. More

importantly, Offord fails to identify any OSHA safety regulation that was

potentially violated by Seacoast. These arguments are therefore waived.

Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009). 

Finally, Offord argues that Seacoast had the duty to warn him not to

climb on the tarp. He cites several cases stating that “[i]t is the duty of one

doing construction work to properly label, mark or barricade places in the

construction site that present an unreasonable risk of harm to those in the

area.” Toledano v. Sewerage & Water Bd., 671 So. 2d 973, 976 (La. Ct. App.

1996); see also, e.g., Carr v. Boh Bros. Const. Co., 557 So. 2d 356, 358 (La. Ct.

App. 1990). None of the cited cases impose a duty to warn on facts similar to

those at issue. Indeed, none of these cases deal with a principal’s liability for

injuries sustained by an independent contractor. Consequently, these cases do

not alter the court’s conclusion that Offord has failed to show that Seacoast

acted negligently. 

CONCLUSION

 The district court correctly granted summary judgment in favor of

Seacoast on Offord’s negligence claim. AFFIRMED.