     Case: 14-30192      Document: 00512784821         Page: 1    Date Filed: 09/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30192
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 29, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
CYPRIAN UKUDI,

                                                 Plaintiff−Appellant,

versus

MCMORAN OIL & GAS, L.L.C.,

                                                 Defendant−Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-3020




Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*


       Cyprian Ukudi, who was injured on an offshore oil platform owned by



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30192
McMoRan Oil & Gas, L.L.C. (“McMoRan”), appeals a summary judgment for
McMoRan on his tort claims. We affirm.


                                      I.
      The accident occurred on West Cameron 294C, a platform located on the
Outer Continental Shelf in the Gulf of Mexico. A brief history of the platform
is necessary before turning to the accident. Three key components of the
platform―the Christmas tree, the wellhead, and the surface-controlled subsur-
face safety valve (“SCSSV”)―were installed when the well was originally
drilled. At some point before McMoRan’s acquisition of the platform, a previ-
ous owner, Newfield Exploration (“Newfield”), determined that the SCSSV was
no longer working properly. It therefore installed another type of valve, the
PB valve, to perform the same safety functions as the SCSSV, but it left the
inoperative SCSSV in place instead of removing it.

      McMoRan purchased the platform from Newfield in 2007 but soon
decided to shut down the well because of a decrease in production. McMoRan
contracted with Alliance Oilfield Services, LLC (“Alliance”), to do the work.
Ukudi was an Alliance employee assigned to the West Cameron 294C opera-
tion. To oversee the project, McMoRan hired two supervisors, known as “com-
pany men”: Jerome Herpin of Eagle Consulting and Kruse Gribble of Hamilton
Consulting.

      The Alliance crew needed to remove the Christmas tree and wellhead
from the platform. One possible method is to use a wrench to loosen a set of
vertical bolts, but rust prevented that. Another potential approach is to use a
torch to cut the bolts, but Gribble instructed the Alliance team not to do that
because of the risk of fire or explosion. As a result, the workers turned to a
third option—backing out a set of hanger pins.

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                                No. 14-30192
      After holding a safety meeting and testing the Christmas tree for
pressure, the Alliance crew began to loosen the pins. Unfortunately, unbe-
knownst to everyone present, a defective component in the old SCSSV had
caused pressure to build up in part of the Christmas tree, causing one of the
pins to eject as Ukudi was removing it, injuring him.

      Ukudi sued McMoRan in state court, claiming negligence. McMoRan
removed to federal court and, after discovery, moved for summary judgment,
which the court granted, holding that there was insufficient evidence of
McMoRan’s negligence and that Alliance was an independent contractor.


                                      II.
      Ukudi raises three possible state-law claims.      First, he argues that
McMoRan is liable for failing to discover and repair unreasonably dangerous
conditions on the platform. Second, he contends that McMoRan is vicariously
liable for the negligent acts of its company men and Alliance. Third, he urges
that McMoRan is liable for failing to implement policies that could have pre-
vented the accident.


                                      A.
      This court reviews a summary judgment de novo. DePree v. Saunders,
588 F.3d 282, 286 (5th Cir. 2009). Summary judgment is proper where “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). In evaluating a motion for
summary judgment, we construe all the evidence in the light most favorable to
the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002),
which, in opposing the motion, must identify specific evidence supporting its
claims, Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003).

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                                      No. 14-30192
                                             B.
       Ukudi has not submitted sufficient evidence to survive summary judg-
ment on his argument that McMoRan is liable for failing to discover and repair
unreasonably dangerous conditions. The Louisiana Civil Code offers three
possible bases for this claim: Articles 2315 and 2316, Louisiana’s general neg-
ligence provisions; Article 2317, which imposes liability for injuries caused by
items in the defendant’s custody; and Article 2322, which imposes liability for
injuries caused by the ruin of the defendant’s building. Under all of these pro-
visions, the plaintiff must show that the defendant knew or should have known
of the condition that caused the harm. 1

       There is no evidence from which a jury could conclude that McMoRan
knew or should have known of the pressure buildup in the Christmas tree.
Ukudi notes that McMoRan did nothing to determine whether there was pres-
sure but could have done so. He emphasizes the dangers of the pressure
buildup and alleges that McMoRan did not adequately make the well file avail-
able to its company men and Alliance.              Id.   But none of this shows that
McMoRan knew or should have known of the pressure, which is a necessary
element of a claim.

       Ukudi cites no evidence that McMoRan knew of it. The only evidence he
mentions that even suggests that McMoRan should have known is a statement
by a McMoRan engineer, John Underwood, that he did not “know if [sic] safe
to assume” that there was no pressure but that “the odds of there being pres-
sure are quite low.” That testimony is ambiguous and is not enough for Ukudi
to bear his burden to identify specific evidence supporting his claims.



       1 See Buffinet v. Plaquemines Parish Comm’n Council, 93-0840 (La. App. 4th Cir.
1994), writ denied, 651 So. 2d 269, and writ denied, 651 So. 2d 269, and writ denied, 651 So.
2d 270 (La. 1995); LA. CIV. CODE ANN. arts. 2317.1, 2322.
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                                  No. 14-30192
Therefore, summary judgment on the premises-liability issue was proper.


                                       C.
      Ukudi also has not submitted sufficient evidence to survive summary
judgment on his claim that McMoRan is vicariously liable for the negligent acts
of its company men and Alliance. Under Louisiana law, a principal is generally
not liable for the conduct of an independent contractor. Coulter v. Texaco, Inc.,
117 F.3d 909, 911–12 (5th Cir. 1997). There are exceptions where “(1) the lia-
bility arises from ultrahazardous activities performed by the contractor on
behalf of the principal or (2) the principal retains operational control over the
contractor’s acts or expressly or impliedly authorizes those acts.” Id. at 912.

      The first exception does not apply here, because offshore oil production
is not an ultrahazardous activity. Ainsworth v. Shell Offshore, Inc., 829 F.2d
548, 550 (5th Cir. 1987). Whether this case fits within the second exception is
a more complicated question. As Ukudi explains in his brief, “[i]t is not enough
for the principal to have a company man on the platform, rather, the principal
must exercise ‘direct supervision over the step-by-step process of accomplish-
ing the work such that the contractor is not entirely free to do the work in his
own way’” (quoting Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558,
564 (5th Cir. 2003)). The principal exercises operational control only if it gives
“an express or implied order to the contractor to engage in an unsafe work
practice leading to injury.” Id. (quoting Coulter, 117 F.3d at 912). In deciding
questions of operational control, the court considers both the contract between
the parties and the extent to which the principal actually exercises control. Id.
(citing Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 193 (5th Cir. 1991)).

      The contract between McMoRan and Alliance did not provide for
McMoRan to retain any control over the means of accomplishing the work.

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                                 No. 14-30192
Instead, McMoRan would “exercise no control over [Alliance’s] personnel nor
those of its subcontractors, nor the methods or means employed by [Alliance]
in the performance of the Work, [McMoRan] being interested solely in the
results obtained.” In support of his theory that McMoRan exercised such con-
trol in practice, Ukudi cites his own testimony that Gribble prohibited the Alli-
ance crew from using a torch to cut the bolts and told the workers to back out
the hanger pins instead. But in the same statement, Ukudi also noted that
Gribble did not provide any instructions on how to loosen the pins, because the
crew had been “doing it all along in almost every well . . . every day.” Id.
      This degree of involvement does not rise to the level of operational con-
trol. Although the parties have not identified any cases in which a principal
told a contractor not to use one method for safety reasons but provided no fur-
ther directions, this behavior is closer to the periodic inspections at issue in
Williams v. Gervais F. Favrot Co., 499 So. 2d 623, 626 (La. App. 4th Cir. 1986),
writ denied, 503 So. 2d 19 (La. 1987), than to “direct supervision over the step-
by-step process,” Fruge, 337 F.3d at 564, or “an express or implied order to the
contractor,” Coulter, 117 F.3d at 912. The fact that Louisiana courts have pre-
viously emphasized the language of the contract over the extent to which the
principal actually exercised control supports this conclusion. See Hemphill v.
State Farm Ins. Co., 472 So. 2d 320, 322 (La. App. 3d Cir. 1985). In short, the
district court was correct in granting summary judgment on the vicarious-
liability claims.


                                       D.
      Ukudi has not submitted sufficient evidence to defeat summary judg-
ment on his contention that McMoRan is liable for failing to implement policies
that could have prevented the accident. To prevail on such a claim under Loui-
siana law, the plaintiff must prove the familiar elements of duty, breach,
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                                  No. 14-30192
causation, and damages. Bass v. Daves, 753 So. 2d 991, 993 (La. App. 2d Cir.),
writ not considered, 762 So. 2d 1094 (La. 2000). A principal generally has no
duty to take affirmative steps to ensure the safety of a contractor’s employees,
but it may assume such a duty by contract or by later going beyond the contract
and voluntarily policing the worksite for safety problems. Graham v. Amoco
Oil Co., 21 F.3d 643, 647 (5th Cir. 1994).

      Ukudi alleges that McMoRan could have prevented his injuries by
requiring its contractors to use a void-bleeding tool or to utilize two workers to
back out the pins. He has not, however, identified any basis for finding that
McMoRan owed him a duty to ensure his safety. McMoRan explicitly declined
to assume such a duty in its contract with Alliance; instead, the contract
required Alliance to “furnish all labor, supervision and training, machinery,
equipment, materials and supplies.”

      Nor did McMoRan assume that duty through its later conduct. The only
evidence of a later assumption of a duty is Gribble’s decision to stop the Alli-
ance crew from using a torch. As discussed above, this one-off statement is
insufficient to support a finding that McMoRan assumed any further respon-
sibility for Alliance’s operations.   Consequently, summary judgment was
proper on the direct-negligence issue.

      AFFIRMED.




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