                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                          ____________________

                             No. 00-30472
                           Summary Calendar
                         ____________________

                         RANDY NUZUM; ET AL.,

                                                            Plaintiffs,

                     RANDY NUZUM; CRAIG BRIGALIA,

                                                Plaintiffs-Appellants,

                                 versus

                        MARATHON OIL COMPANY,

                                              Defendant-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                           (98-CV-3440-K)
_________________________________________________________________
                            March 2, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Primarily at issue in this Louisiana diversity action is

whether Marathon Oil Company was negligent as a matter of law,

thereby creating an unsafe work environment in which employees of

an   independent   contractor,   Turner   Industries,   Inc.,   allegedly

received respiratory injuries.




      *
      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this opinion should not be published and is not precedent except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 January 1998, three Turner employees — Garland Landry, and

plaintiffs Randy Nuzum and Craig Brigalia — performed maintenance

work at Marathon’s oil refinery.           During the welding process, the

pipe on which they worked emitted smoke.          Nuzum and Brigalia later

were found to have respiratory injuries.

     In response to interrogatories, the jury found Marathon not

negligent.

     Claiming       our     standard       of   review     is     de    novo,

Appellants/plaintiffs assert: the relevant facts are not disputed;

that the issue is a purely legal question — whether Marathon’s

issuance of a “hot work” permit and/or its failure to appropriately

test the area for toxic fumes after reported problems engendered a

duty for which it can be held liable.           They maintain the standard

of review is de novo.

     Fifth Circuit precedent does not explicitly state that a

prerequisite to seeking a new trial on appeal is moving for a new

trial in the district court.          But see Wells Real Estate, Inc. v.

Greater Lowell Board of Realtors, 850 F.2d 803, 811 (1st Cir. 1998)

(“Where   the    district   court’s    ruling   would    call   into   play   a

discretionary matter, peculiarly appropriate for that court, it

becomes more important to bring the error first to that court’s

attention.      Thus, a motion for new trial must be made in the first

instance before the trial court, particularly where the weight of

the evidence is at issue.... Plaintiff here never moved for a new


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trial, on weight of the evidence or any other ground.                This claim

too, then, has not been preserved for appeal.” (ellipses and

citations omitted)).

      In any event, the issue of law at hand was not properly

presented in district court.         Needless to say, it is our court’s

“longstanding practice [to] refus[e] to consider issues raised for

the first time on appeal, absent plain error”.              Douglas v. United

Servs. Automobile Assoc., 79 F.3d 1415, 1422-23 (5th Cir. 1996);

see Jones v. Jones, 163 F.3d 285, 304 (5th Cir. 1998) (“No

authority need be cited for the rule that issues raised for the

first time on appeal are reviewed only for plain error.”).

      For two reasons, we conclude no error, plain or otherwise, has

occurred   in    submitting   the   case    to    the   jury:      first,   under

Louisiana law, factual issues were implicated in the duty inquiry;

second, even if a duty existed, the issue of Marathon’s negligence

was   properly    submitted   to    the    jury   because    the   elements   of

causation and injury implicated factual questions.

      Under Louisiana law, “in order to prevail in a negligence

action, a plaintiff must prove: 1) the conduct in question was the

cause-in-fact of the resulting harm; 2) defendant owed a duty of

care to plaintiff; 3) the requisite duty was breached by the

defendant; 4) the risk of harm was within the scope of protection

afforded by the duty breached”.            Peterson v. Gibralter Savs. &

Loan, 733 So. 2d 1198, 1203-04 (La. 1999).              Appellants are correct


                                      3
in stating that, “whether a duty is owed is a question of law”, id.

at 1204; however, this simply means the court must instruct the

jury in the applicable duty, Boykin v. Louisiana Transit Co., Inc.,

707 So. 2d 1225, 1231 (La. 1998) (“Duty generally is a question of

law, and the judge will instruct the jury in a jury trial on the

applicable duty or will apply that duty in a bench trial.”).         “The

existence of a duty and the scope of liability resulting from a

breach of that duty must be decided according to the facts and

circumstances of the particular case.”       Fowler v. Roberts, 556 So.

2d 1, 7 (La. 1990).   Therefore, the inquiry into the mere existence

of duty involved factual questions.

     Furthermore, even assuming Marathon owed plaintiffs a duty,

factual questions remained as to the breach of that duty and the

cause of plaintiffs’ injuries.         And finally, the credibility of

Nuzum’s   and   Brigalia’s   testimony    was   at   issue;   of   course,

credibility is a jury issue.    E.g., United States v. Restrepo, 994

F.2d 173, 182 (5th Cir. 1993) ("The jury is the final arbiter of

... the credibility of witnesses.").

     Because the issue of Marathon’s negligence involved factual

questions, the district court did not err in submitting the case to

the jury, and the judgment of the district court is

                                                              AFFIRMED




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