Fifth Circuit Affirms District Court Decision Holding That Principal Is Not Vicariously Liable for the Alleged Negligence of Its Independent Contractors

On May 12, 2017, the United States Court of Appeals for the Fifth Circuit affirmed a decision from the Southern District of Texas in Davis v. Dynamic Offshore Res., L.L.C., No. 16-40059, 2017 U.S. App. LEXIS 8464 (5th Cir. 2017), granting summary judgment in favor of Dynamic Offshore Resources (“Dynamic”) against a crane mechanic employed by an independent contractor. In Davis, Plaintiff Thomas Davis (“Davis”) brought suit against Dynamic for negligence and gross negligence. Davis was allegedly injured when, while being lifted in a personnel-basket transfer to an offshore platform in the Gulf of Mexico, the personnel basket dropped six to eight feet.

The Fifth Circuit, in its decision, held that “[i]t is well established that a principal is not liable for the activities of an independent contractor committed in the course of performing its duties under the contract.” Bartholomew v. CNG Producing Co., 832 F.2d 326, 329 (5th Cir. 1987). The Court recognized two exceptions to this general rule: (1) “a principal may not escape liability arising out of ultrahazardous activities which are contracted out to an independent contractor;” and (2) “a principal is liable for the acts of an independent contractor if he exercises operational control over those acts or expressly or impliedly authorizes an unsafe practice.” Id. The Court held that a personnel-basket transfer was not ultrahazardous, despite high winds during the transfer. Louisiana law considers only whether the activity is per se ultrahazardous, not whether it is ultrahazardous in specific conditions. See O’Neal v. Int’l Paper Co., 715 F.2d 199, 201-02 (5th Cir. 1983). Furthermore, the Court found that Dynamic did not order the personnel-basket transfer, but that Davis requested it. The operator of the personnel-basket transfer was an independent contractor, and Dynamic was entitled to rely on their expertise. The Court held that Dynamic did not authorize, either expressly or impliedly, an unsafe working condition that caused injury to Davis.

While the decision in Davis cited to and relied upon Louisiana law, the general rule that a principal is not liable for torts of an independent contractor (and the exception to the rule) is the same under general maritime law. See Richard v. Anadarko Petroleum Corp., 2014 U.S. Dist. LEXIS 35483, *26 (W.D. La. 2014) citing Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cir. 1989) (internal quotations omitted)(“It is well-established under general maritime law that a principal is not liable for the torts of an independent contractor unless the principal exercises operational control over or expressly or impliedly authorizes the independent contractor’s actions.”).

To read the full opinion of the Fifth Circuit, please click here.

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