     Case: 09-60675     Document: 00511047904          Page: 1    Date Filed: 03/10/2010




            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 10, 2010
                                     No. 09-60675                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk


GEORGE CASAS, also known as Jorge

                                                   Plaintiff - Appellant
v.

U S JOINER, L.L.C.

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:08-CV-127


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
        George Casas appeals from a summary judgment dismissing his maritime
and state law tort claims against U.S. Joiner, LLC. Finding no reversible error,
we AFFIRM.
        Casas, an employee of Land Coast Insulation, Inc., tripped, fell, and was
injured while installing insulation in a compartment of an amphibious transport
dock (LPD-19) under construction in Northrup Grumman’s Pascagoula,


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                        No. 09-60675

Mississippi shipyard. Northrup Grumman had subcontracted with U.S. Joiner
to complete the LPD-19’s interior, and, in turn, U.S. Joiner subcontracted with
Land Coast to install insulation. Casas fell while walking on the compartment’s
unfinished floor, which consisted of metal beams placed two feet apart and
raised twelve to eighteen inches off of the ground. Casas allegedly asked a U.S.
Joiner employee to supply plywood to temporarily form a flat surface over the
beams, but U.S. Joiner negligently provided only two to three plywood sheets
and consequently left floor beams exposed.
       Casas brought maritime tort claims as well as Mississippi state law tort
claims against Northrup Grumman and U.S. Joiner.1 The district court granted
U.S. Joiner’s motion for summary judgment on both claims, finding that the
alleged negligence was not significantly related to a traditional maritime
activity, as required to sustain a maritime tort claim, and U.S. Joiner owed no
duty to Casas. Casas appeals.
       This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. DePree v. Saunders, 588 F.3d
282, 286 (5th Cir. 2009) (citation omitted). Summary judgment is proper “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 judgment as a matter of
law.” F ED. R. C IV. P. 56(c).




       1
         An initial lawsuit brought by Casas in state court and removed to federal district court
was ultimately dismissed for want of jurisdiction, but that procedural history is not relevant
to this appeal. Additionally, Casas and Northrup Grumman have settled and those claims are
not at issue.

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                                   No. 09-60675

A. Maritime Tort Claim
      28 U.S.C. § 1331(1) gives district courts original jurisdiction over “any civil
case of admiralty or maritime jurisdiction.” A party seeking to invoke admiralty
jurisdiction over a tort claim must show that the tort has (1) a “maritime situs”
and (2) a “maritime nexus” (i.e., that the alleged wrong bears a “significant
relationship to a traditional maritime activity”). Taylor v. Kennedy Engine, Inc.,
861 F.2d 127, 128 (5th Cir. 1988). Maritime situs is conceded. Citing this court’s
decision in Hollister v. Luke Constr. Co., 517 F.2d 920 (5th Cir. 1975) (per
curiam), the district court found that Casas’s tort claim had no maritime nexus
because U.S. Joiner’s alleged negligence arose in the context of shipbuilding,
which is not a maritime activity. Casas argues that the activity that caused his
injury bore a significant relationship to maritime activity because his work on
the LPD-19 was necessary for the vessel to accomplish its purpose and
essentially asks us to ignore the “flawed logic” of Hollister. Hollister has been
repeatedly relied upon by this court. See Cain v. Transocean Offshore USA, Inc.,
518 F.3d 295, 298 (5th Cir. 2008) (noting the “historical tradition that vessels
under construction give rise to neither a maritime contract nor a maritime tort”);
Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1187 (5th Cir. 1984) (rejecting
admiralty jurisdiction and citing Hollister for the proposition “that an injury to
a ship construction worker on board a ship under construction and lying in
navigable waters is not a maritime tort”); see also Owens-Illinois, Inc. v. U.S.
Dist. Court for the W. Dist. of Wash., 698 F.2d 967, 970 (9th Cir. 1983) (tort
claims arising from asbestos exposure during new ship construction do not bear
a significant relationship to traditional maritime activity); Keene Corp. v. U.S.,
700 F.2d 836, 844 (2d Cir. 1983) (“a tort arising out of work on an uncompleted


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                                  No. 09-60675

vessel has been held to fall outside admiralty jurisdiction.”). This panel lacks
authority to overrule circuit precedent.     Teague v. City of Flower Mound,
179 F.3d 377, 383 (5th Cir. 1999).
B. Mississippi Tort Claim
      To succeed in a negligence action under Mississippi law, a plaintiff must
show duty, breach of duty, proximate causation, and injury. Palmer v. Biloxi
Reg’l Med. Ctr., Inc., 564 So. 2d 1346, 1355 (Miss. 1990). The district court held
that U.S. Joiner owed no duty to Casas because Land Coast, not U.S. Joiner,
exercised control over Casas’s work and because Casas’s injuries arose out of the
work Land Coast contracted to perform. Moreover, the district court determined
that any duty of care that U.S. Joiner may have “assumed” by agreeing to supply
plywood did not remain intact because Land Coast and Casas had knowledge of
the dangerous condition of the LPD-19 compartment’s floor.
      Mississippi law imposes a duty on a premises owner to its business
invitees to keep the premises in reasonably safe condition. Jones v. James
Reeves Contractors, Inc., 701 So. 2d 774, 782 (Miss. 1997). However, when the
business invitee is an independent contractor, a premises owner owes no duty
to protect the contractor or its employees from risks “arising from or intimately
connected with defects of the premises . . . which the independent contractor has
undertaken to repair.”    Id.   Nor does a premises owner owe a duty to an
independent contractor who has the “right and fact of control over the premises
and the nature and details of the work.” Id. (quoting Magee v. Transcon. Gas
Pipeline Corp., 551 So. 2d 182, 185 (Miss. 1989)). The district court correctly
held that Casas presented no evidence that U.S. Joiner owed a duty to the
independent contractor, Land Coast, or its employees based on a the “right of


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                                  No. 09-60675

control”, and Casas’s injuries were “intimately connected” with Land Coast’s
work.
        Nonetheless, Casas maintains that, by providing plywood sheets at Casas’s
request, U.S. Joiner undertook to repair the compartment floor’s dangerous
condition and thereby assumed a duty to Land Coast’s employees. A party can
assume a duty by conduct where none otherwise exists. See Magnolia Constr.
Co., Inc. v. Miss. Gulf South Eng’rs, Inc., 518 So. 2d 1194, 1201 (Miss. 1988).
However, as the district court correctly recognized, Mississippi law also holds
that even if a duty to make premises safe arises, that duty does not “remain
intact” if an independent contractor has knowledge of the dangerous condition.
Hill v. Int’l Paper Co., 121 F.3d 168, 175–76 (5th Cir. 1997) (quoting Jones,
701 So. 2d at 782).     Land Coast and Casas knew of the condition of the
compartment’s unfinished floor, as Casas personally complained about the
beams and requested plywood from a Land Coast supervisor before he sought
help from U.S. Joiner.        Casas argues—without legal support—that an
independent contractor’s actual knowledge of a dangerous condition only
alleviates a duty to warn, but the Mississippi Supreme Court described the duty
that is eliminated by an independent contractor’s knowledge as the duty “to
make the premises safe.” Jones, 701 So. 2d at 782. Thus, even if U.S. Joiner
assumed a duty to make the premises reasonably safe by undertaking to correct
the dangerous condition of the compartment floor, Land Coast’s and Casas’s
knowledge of that condition removed the duty.
        For the foregoing reasons, the judgment is AFFIRMED.




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