United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
Miller, United States District Judge
before the court is a motion for summary judgment filed by
defendant Black Elk Energy Offshore Operations, LLC
(“Black Elk”). Dkt. 45. Having considered the
motion, response, reply, objections, and applicable law, the
court is of the opinion that the motion should be GRANTED.
case involves plaintiff Robert Henderson's alleged
injuries sustained while on an offshore platform owned by
Black Elk. Dkt. 19 at 3. Bagwell Energy Services, Inc.
(“Bagwell”) employed Henderson as a welder while
working on the Black Elk platform, which was located on the
Louisiana Outer Continental Shelf. Id. Bagwell and
Black Elk entered into a Master Service Agreement
(“MSA”) to govern the rights and obligations of
the parties with respect to the work on the platform. Dkt.
45-3 at 21-34.
[Bagwell] shall be an independent contractor with respect to
the performance of all Work hereunder and neither [Bagwell]
nor anyone employed by [Bagwell] shall be deemed for any
purpose to be the employee, agent, servant, or representative
of BLACK ELK in the performance of any Work or any part
thereof pursuant to this Agreement. BLACK ELK shall have no
direction or control of the details of the Work, [Bagwell],
or its employees and agents except in the results to be
obtained. The actual performance and supervising of all Work
hereunder shall be by [Bagwell], but BLACK ELK or its
representatives shall have unlimited access to the premises
to determine whether Work is being performed by [Bagwell] in
accordance with all of the provisions of this Agreement. At
BLACK ELK's discretion, the Work may be reviewed or
tested by a BLACK ELK representative and be subject to his
approval and acceptance.
Id. at 25. It further provided:
[Bagwell] is responsible for initiating, maintaining, and
supervising all necessary safety precautions and programs in
connection with the Work. [Bagwell] shall take all necessary
precautions for the safety of its employees, subcontractors,
agents[, ] and invitees at the work site.
Id. at 22.
on the Black Elk platform, Henderson and other Bagwell
employees attended safety meetings conducted by Black Elk
company man, Terry Hale. Dkt. 54-1 at 3. At the safety
meeting on August 19, 2014, Hale and a Bagwell supervisor
agreed that certain items, including handrail pipe, needed to
be moved from one side of the platform to the other.
Id. at 4. They further agreed and indicated to the
Bagwell employees that the materials should be manually
moved. Id. While the evidence indicates that Hale
wanted the materials moved manually, Henderson admits that
Hale did not actually tell Bagwell employees how to do their
job, but rather just made recommendations. Id. at 3.
agreed upon procedures by Hale and the Bagwell supervisor,
Henderson began moving materials across the platform.
Id. at 7. On his second trip, Henderson carried two
pieces of pipe up a flight of stairs. Id. While
climbing the stairs, he sustained an injury to his back.
Id. Henderson admits that Hale never told him to
carry two pieces of pipe together. Id. As a result
of the injury, Henderson sued Black Elk for negligence and
gross negligence. Dkt. 19. Black Elk now seeks summary
judgment, arguing that it did not owe a duty to Henderson and
thus cannot be liable for negligence. Dkt. 45.
shall grant summary judgment when a “movant shows that
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). “[A] fact is genuinely in dispute
only if a reasonable jury could return a verdict for the
nonmoving party.” Fordoche, Inc. v. Texaco,
Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If
the moving party meets its burden, the burden shifts to the
non-moving party to set forth specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e). The court must
view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the non-movant. Envtl. Conservation Org. v. City of
Dallas, 529 F.3d 519, 524 (5th Cir. 2008).