                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                             No. 99-21195




MARCOS AVILA; FABIANA AVILA

                                                Plaintiffs-Appellants,

v.


MILLENNIUM PETROCHEMICALS, INC.

                                                  Defendant-Appellee.


                          - - - - - - - - - -
                Appeal from the United States District
               Court for the Southern District of Texas
                              (H-98-1033)
                          - - - - - - - - - -
                           February 12, 2001

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     The appeal of this workplace injury case is before us on

diversity jurisdiction.    After receiving an adverse judgment based

on a jury verdict, Plaintiffs-Appellants Marcos and Fabiana Avila

(“the Avilas”) appealed, asking us to reverse and remand for a new

trial.   They base their appeal on the contention that the district

court’s instructions to the jury were fatally flawed.      The Avilas



     *
       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this opinion should not be published and is not precedent except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.
argue    that    the     jury     instructions,         particularly            the    first

interrogatory, do not properly convey the issue that the jury was

to decide:      Whether Defendant-Appellee Millennium Petrochemicals,

Inc.    (“Millennium”)          retained       supervisory         control      over     the

industrial construction work of an independent contractor for which

Marcos was working when he was injured.                       We conclude that the

district court’s instructions provided the jury with sufficient

guidance on      the   factual      determination           they   were    to    make    and

therefore affirm that court’s judgment based on the jury’s verdict.

                           I. Facts and Proceedings

       Millennium owns and operates a petrochemical plant at La

Porte, Texas.      When one of the furnaces at that plant ceased to

function properly, Millennium decided to retube it. For that task,

Millennium      retained    the    services      of     a    number   of     independent

contractors, including Anderson Industrial Scaffolding Services,

Inc. (“Anderson”), an independent contractor already on stand-by

with Millennium pursuant to a pre-existing year-to-year contract.

In   that   contract,      Anderson    had       agreed       to   perform       work   for

Millennium on request, when and as needed.

       Marcos Avila (“Marcos”) was employed by Anderson as part of a

crew assigned to erect scaffolding and remove insulation around the

Millennium furnace so that workers for other contractors could

perform additional work on it, on the completion of which another

crew would      return     to    re-insulate      the       furnace   and    remove      the

scaffolding.      Marcos’s assignment was to remove an outer layer of

                                           2
sheet metal, remove and roll up the old fiberglass insulation, and

place it in large plastic bags.            Scaffolding had been placed at

each level of the furnace, and, like the other Anderson workers on

his crew, Marcos was required to use a safety harness attached to

the scaffold overhead at all times.

      Marcos testified that on the occasion in question he untied

his safety harness during the course of moving a bag of insulation

—— a task that he claims he could not have performed while

remaining tied off.     While his harness was untied, Marcos lost his

balance and fell through an opening in the scaffolding, landing on

the level below and sustaining serious injuries.               Marcos stated

that he was rising from a squatting position when he hit his head

on an overhead beam, lost his balance, and fell through an open

area on Level 4 of the scaffolding at a point where boarding had

not yet been laid down.

      The Avilas brought suit against Millennium, contending that

the company was responsible for Marcos’s fall because it had

negligently exercised supervisory control over the work performed

by   Anderson’s     employees.     The     Avilas   assign    as   negligence

Anderson’s failure to have boarding in place on the scaffolding

while   the   old   insulation   was   being    removed,     contending   that

Marcos’s fall would have been prevented if the boarding had already

been laid down on the scaffolding.          This, according to the Avilas,

made Millennium liable for failure to maintain a safe workplace.

      The jury found for Millennium, answering negatively the first

                                       3
interrogatory, which asked the jury:

                Do you find from the preponderance of the
                evidence that on July 16, 1997 at a
                petrochemical plant that it owned at 1515
                Miller Cut-Off Road in La Porte, Texas,
                Millennium Petrochemicals, Inc. had retained
                the right of control over Anderson Industrial
                Services, Inc. employees’ work to remove
                insulation on level 4 of Furnace 8?

The   district      court   then    entered   final   judgment    in   favor   of

Millennium and ordered the Avilas to pay costs.            The Avilas timely

filed a notice of appeal.

                                   II.   Analysis

A.    Standard of Review

      When we review a timely objection to the district court’s jury

instructions        we   must   determine     whether   the      appellant     has

demonstrated “that the charge as a whole creates substantial and

ineradicable doubt whether the jury has been properly guided in its

deliberations”1; but “even if the jury instructions were erroneous,

we will not reverse if we determine, based upon the entire record,

that the challenged instruction could not have affected the outcome

of the case.”2

B.    The Jury Instruction

      A premises owner generally has no duty to ensure that an

independent contractor performs the work it is hired to do in a

      1
       Hartsell v. Dr. Pepper Bottling Co., 207 F.3d 269, 272 (5th
Cir. 2000) (quoting Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th
Cir.1997) (internal citation and quotation marks omitted)).
      2
          Id.

                                          4
safe manner, and thus is typically not liable for injury or damage

resulting from an unsafe performance by the contractor.   Texas law

recognizes an exception to this general rule, however, for any

premises owner “who entrusts work to an independent contractor, but

who retains the control of any part of the work.”3   In such a case

the employer is “subject to liability for physical harm to others

for whose safety the employer owes a duty to exercise reasonable

care, which is caused by his failure to exercise his control with

reasonable care.”4   The supervisory control exercised “must relate

to the activity that actually caused the injury.”5

     The sole issue on appeal here is whether the instruction with

which the jury was charged, particularly the first interrogatory,

sufficiently informed the jury of the determination it was to make,

i.e., whether Millennium exercised supervisory control over the

work performed by Anderson’s employees that Marcos claims caused

his fall.6     The Avilas assert that the district court committed


     3
       Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)
(citing Restatement (Second) of Torts § 414 (1977)).
     4
         Id.
     5
       Coastal Marine Serv. of Texas v. Lawrence, 988 S.W.2d 223,
226 (Tex. 1999).
     6
        The instruction accompanying the first interrogatory
generally informed the jury that a premises owner/ operator
(Millennium) owes no duty to the employees of an independent
contractor (Marcos) unless the owner/operator retains supervisory
control over the part of the independent contractor’s work on the
premises that actually caused the injury, to such a degree that the
control includes at the least the right to control the order in
which the work is to be done or the right to ensure that the work

                                  5
reversible error by refusing to include the words “and lay down

boarding” after “to remove insulation” in the first interrogatory.

The Avilas argue that removal of the insulation was a separate job

from that of laying down the boarding on the scaffolding; that it

was not a lesser included facet of the overall insulation removal

project. As such, contend the Avilas, the interrogatory formulated

and given to the jury obfuscated the issue that it was to decide,

namely whether Millennium exercised control over installation of

the boarding on the scaffolding —— specifically, the decision not

to lay down boarding on the scaffolding prior to removal of the old

insulation —— the specific “part of the work” that the Avilas

allege caused the accident.        In essence, the Avilas argue that the

interrogatory was too narrowly focused on insulation removal alone

and did not instruct or permit the jury to address Millennium’s

supervisory      role   in   the   laying      down   of   the   boards   on   the

scaffolding.

     Millennium contends, in contrast, that Anderson was initially

employed to remove the old insulation on the furnace and that, like

removing   and    bagging    the   old       insulation,   both   erecting     the

scaffolding and laying down the boards were integral sub-parts of

that entire job and thus were lesser included facets of the overall

insulation removal project.         Thus, insists Millennium, the first

interrogatory’s focus on removal of insulation covered not just the



is not performed in an unsafe manner.

                                         6
taking off and bagging of the old insulation but all facets of that

job, including erecting the scaffolding, removing and bagging the

old insulation, and laying down the boards. Millennium also points

out that the purpose for which the boards were to be laid down was

not to provide an additional safety feature for the protection of

those of Anderson’s employees who, like Marcos, were to ascend and

work on the scaffolding while removing the old insulation. Rather,

advances Millennium, the boarding was to be installed for the

subsequent use of another group of workers, namely, the welders,

whose performance would not commence until the insulation removal

job had been completed.     Moreover, continues Millennium, the

primary purpose of the boards was not to serve as safety features

for the welders but as surfaces on which to place their welding

equipment while they welded on the furnace.

     Regardless of which party’s analysis of the job and its

description might ultimately prove to be correct, the Avilas’ claim

is unavailing under the facts presented to the jury, as reflected

by the record as a whole.       If, as Millennium contends, the

insulation removal job that Anderson was retained to perform

necessarily included installation of the boards on the scaffolding

as an integral part of the contract, then “laying down boarding,”

like erecting the scaffolding, was implicitly included in the total

task which would be “to remove insulation.”    That would make the

first interrogatory all-inclusive and accurate.    But if, as the

Avilas urge, installation of the boards was distinct from the task

                                7
of removing insulation, the board installation was related only to

a subsequent task to be performed by the welders, providing a place

for them to put their welding equipment and supplies.                   If the

Avilas are correct about the two distinct operations, then by

definition the task of installing boards for the welders was not

part of removing the old insulation, the work to which Marcos’s

task was limited.      Even if, in this latter alternative, Millennium

has assumed control of laying down the boards, it would have had no

duty to Marcos to place boarding on the scaffolding prior to his

performing the insulation removal tasks assigned to him.                Such a

duty would run only to the welders, and even then vis-à-vis their

equipment and not their safety.              Consequently, scaffolding and

harnesses were the only safety features on which Marcos and the

other employees who worked to remove the old insulation were meant

to rely.   And if, as found by the jury, Millennium had not retained

control over Anderson’s employees’ work on the insulation removal

job, then Millennium would have owed no duty and had no liability

to Marcos.

                              III.   Conclusion

       Given the state of the entire record, either theory of the

case   advanced   by    the   parties       makes   the   first   interrogatory

sufficient as to the issue to be decided by the jury.               Laying down

boarding on the scaffolding was, like erecting the scaffolding,

either (1) a safety-related task inherent in the larger job of

removing the insulation, a job for which the jury found Millennium

                                        8
had not assumed supervisory responsibility, or (2) an unrelated,

subsequent task to be performed for the benefit of the welders and

therefore not a safety feature on which Marcos and other similarly

situated employees of Anderson were entitled to rely to prevent

falls such as the one suffered by Marcos.       It follows that, either

way, the wording of the interrogatory satisfactorily captured the

question the jury was to decide, i.e., whether Millennium exercised

supervisory control over the work, and thus the safety decisions,

involved in the job comprising Anderson’s —— and therefore Marcos’s

—— participation in the removal of the insulation. The omission of

specific    reference   to   laying   down   boarding,   in   addition   to

reference to removal of insulation, was not error.        Therefore, the

judgment of the district court is, in all respects,

AFFIRMED.




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