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

                                                 FILED
                                                                         December 23, 2009

                                     No. 09-60354                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MARK L MCLAURIN; TAWANA MCLAURIN,

                                                   Plaintiffs-Appellants
v.

NOBLE DRILLING US INC; NOBLE DRILLING CORPORATION; NOBLE
DRILLING SERVICES INC,

                                                   Defendants-Appellees




               Appeal from the United States District Court for the
                         Southern District of Mississippi
                             USDC No. 1:05-CV-463


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Mark McLaurin filed suit for injuries sustained while working on a vessel
owned by defendant Noble Drilling.              The district court granted summary
judgment in Noble’s favor, finding that McLaurin had not raised any issue of
material fact under Mississippi negligence law. On appeal, McLaurin contends
that the district court improperly weighed the evidence. We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-60354

      We review a grant of summary judgment de novo, applying the same
standard as the district court. Noble Energy, Inc. v. Bituminous Cas. Co., 529
F.3d 642, 645 (5th Cir. 2008) (citation omitted). In determining whether a
genuine issue as to any material fact exists, we examine the evidence in the light
most favorable to the party opposing the motion. Fahim v. Marriott Hotel Servs.,
Inc., 551 F.3d 344, 348-49 (5th Cir. 2008).
      Mark McLaurin was employed as a scaffold carpenter by Friede Goldman
Offshore. In 2002, Friede Goldman assigned McLaurin to build scaffolding
inside a pontoon extension on the “Noble Clyde Boudreaux,” an offshore drilling
rig owned by Noble Drilling. While McLaurin was working, a crane operated by
a Friede Goldman employee was lowering a part of the roof structure on the
pontoon. McLaurin placed his hand in a “pinch point” – a space between two
objects – while the roof was being fitted. As a result, he sustained a severely
crushed left hand and arm.
      The relationship between Friede Goldman and Noble was contractual.
Friede Goldman agreed to “furnish labor, material, and equipment required, on
a Lump Sum Basis, to fabricate, paint and install lower hull pontoon
extensions.” Friede Goldman used its own equipment, conducted all operations
in its own name, and directed its employees without Noble’s instruction or
interference.   Noble did not assume responsibility for the safety of Friede
Goldman employees under the terms of the contract.
      The elements of a negligence claim in Mississippi are 1) duty, 2) breach of
duty, 3) causation, and 4) injury. Gulledge v. Shaw, 880 So. 2d 288, 292-93
(Miss. 2004). Specifically relevant to this case is the definition of the duty owed
by a premises owner to the employees of an independent contractor.
      Where a party . . . contracts with another . . . to perform original
      construction or repair work . . . and devolves upon the contractor the
      right and fact of control of the premises and the nature and details
      of the work, the owner has no liability for injuries experienced by

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      the contractor’s workers where those injuries arose out of or were
      intimately connected with the work.
Magee v. Transcontinental Gas Pipe Line Corp., 551 So. 2d 182, 185 (Miss. 1989).
The absence of contractual control would not foreclose liability. Id. If a plaintiff
established that “the owner maintained substantial de facto control over those
features of the work out of which the injury arose,” even without a contract right,
recovery may nonetheless be possible. Id. at 186 (emphasis added).
      McLaurin attempted to establish Noble’s control in both general and
specific terms. McLaurin offered evidence that Friede Goldman and Noble
created an extra-contractual joint safety protocol, that Noble had one of its
employees on site, and that the Noble representatives routinely evaluated Friede
Goldman’s compliance with its overall plans. The district court concluded that
this evidence spoke to Noble’s control over the entire “Noble Clyde Boudreaux”
project, not its control over the aspect of the work causing McLaurin’s injury.
The proof must explain control over the aspect of the work causing the injury.
Magee, 551 So.2d at 185. None of the evidence offered by McLaurin supports
that Noble controlled the work on the pontoon extension that caused his injury.
      McLaurin also asserts that Noble representatives had a responsibility to
intervene when they witnessed Freide Goldman employees working under a
suspended overhead load.       It is not altogether clear whether this specific
argument was made to the district court, but we also do not find that Noble
objects to the raising of a somewhat different appellate argument – if it is in fact
different.   So we consider it.   Working under an overhead load, McLaurin
contends, violated Noble’s own safety procedures. However, there is no evidence
that Noble employees were present when McLaurin’s injuries occurred. Instead,
McLaurin offers an expert willing to testify to a “moral certainty” that a Noble
representative “would have been present” at the pontoon extensions to observe
the safety violation. We do not find such testimony to create a fact issue that


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anyone from Noble witnessed the incident and failed to intervene. In fact,
McLaurin himself testified that no one from Noble told him how to perform his
work, and that it was one of his Friede Goldman supervisors who told him to
work inside the pontoon extension.
      McLaurin relies on a precedent that affirmed recovery for an injured
employee of a contractor when the premises owner retained “ultimate authority
for safety” in the contract, issued step-by-step procedural instructions to the
employees of the contractor, and paid the contractor a “day rate” for its work.
Coho Resources, Inc. v. McCarthy, 829 So. 2d 1, 10-13 (Miss. 2002). The court
specifically differentiated “day rate” jobs from “turnkey” contracts, which provide
an independent contractor lump compensation for the entire job. Id. at 12.
      By contrast, it is undisputed that in this case, Noble did not assume
contractual authority for the safety of Friede Goldman employees. The evidence
also shows that the details and procedures of Friede Goldman’s day-to-day
activities were controlled by its own rules and instructions. The agreement
between Friede Goldman and Noble was a turnkey project, by which Friede
Goldman took total control of its assignment until completion.
      McLaurin argues that Noble should nevertheless be held liable for its
failure to intervene. In Coho, the court acknowledged that an owner could be
liable to employees of an independent contractor for its own negligence. Id. at
13. However, such negligence was established by evidence that the defendant
did “retain and exercise substantial control” over the contractor’s work, and
“directly supervised” the relevant activity. Id. Further, testimony in Coho
showed that the contractor’s crew was required to follow the step-by-step
instructions of the owner’s on-site employee. Id. at 11.
      The Coho facts do not exist here. Although there is evidence that Noble
frequently had a company representative on site, there is no proof that he
directed the aspect of the work causing the injury, nor that he was even present

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at the accident. The court has made clear that the mere presence of the owner’s
employee, even where he periodically inspects the work, does not create liability.
Magee, 551 So. 2d at 185. An owner’s reasonable access to the operation is not
enough. Coho Resources, Inc. v. Chapman, 913 So. 2d 899, 910 (Miss. 2005)
(citing Magee, 551 So. 2d at 186-87).
      McLaurin has not offered any credible evidence that Noble substantially
controlled the aspect of the work causing his injury. There were, therefore, no
disputes of material fact preventing summary judgment.
      AFFIRMED.




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