Sharon S. Dupre, Widow of Russell P. Dupre, Individually Andas Natural Tutrix of Her Minor Child, Beaunicholas Dupre, Plaintiff-appellant, v. Chevron U.s.a., Inc., Defendant-appellee, 33 F.3d 7 (5th Cir. 1994)

Harvey J. Lewis, Lewis & Kullman, New Orleans, for appellant.

George Burton Jurgens, III, Milling, Benson, Woodward, Hillyer, Pierson & Miller, Len R. Brignac, New Orleans, LA, for appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

On Petition for Rehearing With Suggestion for Rehearing En

Banc

(Opinion April 25, 1994, 5th Cir. 1994 20 F.3d 154)

Before POLITZ, Chief Judge, JONES, Circuit Judge, and FULLAM,^*  District Judge.

The petition for rehearing is DENIED and the court having been polled at the request of one of the members of the court, and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Fed. R. App. P. and Local Rule 35), the suggestion for rehearing en banc is also DENIED.

We did not set out to chart a new course in Louisiana jurisprudence in this appeal from the grant of summary judgment. We do not reject but fully accept the general principle that a platform principal owes no general duty to an independent contractor's employees to correct a hazard on the platform which was created by the contractor. We are simply unwilling to say, without the benefit of a full development of the facts and with no consideration of the argument by the trial court, that here Chevron owed no duty or, of course, that any such duty has not been breached. The trial court did not decide whether Chevron owed a duty. Nor do we now. We vacated and remanded so that the trial court may determine whether, under the facts of this case, Chevron owed plaintiff a duty, separate from vicarious liability, after affording counsel an opportunity to develop all the facts and to make their argument, by further summary proceedings, or trial, as the district court may decide.

JONES, J., dissents from the denial of rehearing.