* 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should not be published and is not precedent except under the limited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. 97-30881

Summary Calendar

_______________

CHARLES D. DARR, JR.,

Plaintiff-Appellant,

VERSUS

CHEVRON, U.S.A., INC.;

CHEVRON INDUSTRIES, INC.;

CHEVRON INTERNATIONAL OIL COMPANY, INC.;

CHEVRON OIL COMPANY;

CALIFORNIA OIL COMPANY;

and

ENRON OIL & GAS COMPANY,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(96-CV-2818-R)

_________________________

April 2, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Charles Darr brings this Texas negligence action under the

Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C.
1 Chevron, U.S.A., Inc., is the only Chevron defendant having any interest

in this litigation.

2

§ 1333(a)(2)(A). Finding no reversible error, we affirm.

I.

On August 29, 1995, Darr was injured when his shirt caught a

protruding “jack bolt” on an oil platform stairwell and caused him

to tumble down the stairs. Darr maintains that this fall led to

back and knee injuries, which later required surgery. Darr was an

employee of Santa Fe Minerals, Inc. (“Santa Fe”), at the time of

his accident.

Santa Fe and Chevron, U.S.A., Inc. (“Chevron”),1 jointly owned

and operated the platform, located on a tract of leased federal

land, High Island Block 120 (“HI-120"), and situated on the Outer

Continental Shelf, adjacent to the State of Texas. The two

companies had oil and gas leases from the United States on

adjoining tracts and had agreed to operate jointly this one

platform in order to maximize their profits.

The agreements between Santa Fe and Chevron provided that the

two companies would share proportionately the profits and expenses

of the platform and would share control of the platform's

operations. Both companies contributed to a joint fund that paid

the costs for employees to operate the platform, and that bore the

risk of loss to such employees for their work at the site.

On May 1, 1995, Santa Fe and Enron Oil & Gas Company (“Enron”)
3

entered a Purchase and Sale Agreement in which Santa Fe agreed to

sell Enron certain of its energy operations, including its

interests in the HI-120 lease and oil platform located thereon. On

August 29, 1995 (coincidentally, the date of Darr's injury),

Santa Fe assigned its lease interest in HI-120 to Enron. The

assignment was delivered to Enron at closing, which took place on

August 31, 1995.

II.

We review a summary judgment de novo. See Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if 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). The movant bears the burden of demonstrating that there is an absence of

evidence to support the respondent’s case. See Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986). The non-movant then must set

forth specific facts showing there is a genuine issue for trial.

See Hanks, 953 F.2d at 997.

We begin by consulting the applicable substantive law to

determine what facts and issues are material. See King v. Chide,

974 F.2d 653, 655-56 (5th Cir. 1992). If there are fact issues
2 To avoid LHWCA employer immunity, Darr must maintain that he was employed

by Santa Fe, not Enron. See infra part IV.

4

presented, we review the evidence relating to those issues, viewing

the facts and inferences in the light most favorable to the nonmovant. See id. If the non-movant sets forth specific facts in

support of allegations essential to his claim, a genuine issue is

presented. See Celotex, 477 U.S. at 323; Brothers v. Klevenhagen,

28 F.3d 452, 455 (5th Cir. 1994).

III.

Darr sues Enron claiming that it was negligent in operating

its oil platform.2 Under OCSLA, Texas law governs Darr's suit.

See 43 U.S.C. § 1333(a)(2)(A).

Texas law provides that “[a]n owner or occupier of land has a

duty to use reasonable care to keep the premises under his control

in a safe condition.” Redinger v. Living, Inc., 689 S.W.2d 415,

417 (Tex. 1985) (citation omitted).

Restatement (Second) of Torts § 328E (1965) defines

"owner or occupier" in terms of "possessor":

A possessor of land is

(a) a person who is in occupation of the land with

intent to control it or

(b) a person who has been in occupation of land

with intent to control it, if no other person has

subsequently occupied it with intent to control it,

or

(c) a person who is entitled to immediate
5

occupation of the land, if no other person is in

possession under Clauses (a) and (b).

Id. The standard of conduct required of a premises

occupier toward his invitees is the ordinary care that a

reasonably prudent person would exercise under all the

pertinent circumstances. See Restatement (Second) of

Torts § 343 (1965); Corbin, 648 S.W.2d at 295. This duty

only arises, however, for an occupier with control of the

premises. See Redinger, 689 S.W.2d at 417; Sem v. State,

821 S.W.2d 411, 414-15 (Tex. App.SSFort Worth 1991, no

writ); Chevron U.S.A., Inc. v. Lara, 786 S.W.2d 48, 49

(Tex. App.SSEl Paso 1990, writ denied).

Gunn v. Harris Methodist Affiliated Hosps., 887 S.W.2d 248, 251

(Tex. App.SSFort Worth 1994, writ denied).

Darr has alleged insufficient evidence to create a genuine

fact issue of whether Enron was a possessor of the oil platform at

the time of his injuries. Darr primarily relies on his defective

affidavit to show that Enron was an “occupier with control” of the

platform. This affidavit states only that [p]rior to the incident

on August 29, 1995, [Enron] came to High Island platform on several

occasions to inspect for environmental hazards” and that “During

June and July of 1995, stimulation activities of the wells were

conducted by Santa Fe Minerals, Inc. at [Enron's] request,

including the well at High Island 120, in order to increase well

production.” This evidence alone is insufficient to raise a fact

issue whether Enron was an “occupier with control” of the land

under Texas law. See Redinger, 689 S.W.2d at 418.

Darr also points to the Purchase and Sale Agreement, which, he

maintains, “turned over blanket authority and control to Enron for
6

operations [of the HI-120 platform], starting May 1, 1995.” This

agreement, however, was only an agreement to sell some of Santa

Fe's assets to Enron; it did not accomplish a sale, a transfer of

possession, or a change in control from Santa Fe to Enron. 

Without more, Darr's claim against Enron, therefore, fails.

His evidence to avoid judgment as a matter of law does not do

enough to raise a fact issue about Enron's possession of the oil

platform on August 29, 1995SSa necessary element of his negligence

claim against Enron.

IV.

Darr sues Chevron for negligence because it was a co-owner of

the oil platform, which was under its joint control. Darr is

precluded from seeking tort recovery against his employer,

Santa Fe, under the LHWCA, as LHWCA benefits provide the sole

remedy. See 43 U.S.C. § 1333(b); 33 U.S.C. § 905.

Under our well-settled caselaw, LHWCA employer immunity also

prevents Darr from seeking recovery against those parties forming

part of a joint venture with his employer to operate the oil

platform where the injury occurred. See, e.g., Heavin v. Mobil Oil

Exploration & Producing Southeast, Inc., 913 F.2d 178, 179-80 (5th

Cir. 1990); Davidson v. Enstar Corp., 860 F.2d 167, 168 (5th Cir.

1988) (per curiam) (on rehearing); Bertrand v. Forest Corp., 441

F.2d 809, 810-11 (5th Cir. 1971) (per curiam). We have previously
3 The extension of LHWCA immunity to Chevron also makes sense in light of

the policy concerns of that act. Congress intended to decrease the transaction

costs of litigation against employers by establishing a “no-fault” workers

compensation system. An employer contributes to an insurance fund, which then

forms the basis for the employee's recovery. The employer's contribution to the

fund, in essence, is an ex ante probabilistic payment of liability, for which,

7

outlined a four-factor test for determining whether such a joint

venture exists for LHWCA employer immunity purposes. See Davidson

v. Enstar Corp., 848 F.2d 574, 577-78 (5th Cir.), modified on

rehearing on other grounds, 860 F.2d 167 (5th Cir. 1988).

The factors that a court considers are: “1) whether the

parties intended to form a partnership or joint venture; 2) whether

the parties share a common interest in the subject matter of the

venture; 3) whether the parties share profits and losses from the

venture; and 4) whether the parties have joint control or the joint

right of control over the venture.” Id. at 577. A joint well

operation can be a “joint venture” for purposes of LHWCA employer

immunity even if the parties' agreement explicitly disclaims

interpretation of the agreement as such. See Davidson, 860 F.2d at

168.

The agreements between Chevron and Santa Fe make plain that

the factors of the this test are met. The agreements governing the

operation of the oil platform between the two companies are like

those in Heavin and Bertrand. As in those cases, here, both

companies agreed to share control of the platform's operations and

to pay employees from a common fund and to share profits from the

platform's production.3 So, Chevron is entitled to employer
in return, the employer is immune from ordinary negligence suits brought by

employees.

If two companies share the cost of employees by contributing to a joint

accountSSan account that also pays the premiums to the LHWCA insurance fundSSit

makes no sense to allow the injured worker to seek recovery through the tort

system against the employer's joint venturer. Allowing tort recovery in this

case against Chevron would eviscerate the legislative bargain by requiring the

defendant corporation both to contribute to the LHWCA fund, through deductions

from its joint account with Santa Fe, and to be subject to tort liability.

8

immunity for this ordinary negligence suit under the terms of the

LHWCA.

AFFIRMED.