Hernandez et al v. Dedicated TCS, LLC, et al, No. 2:2016cv03621 - Document 112 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting in part and denying in part 87 Motion to Dismiss for Failure to State a Claim by Bulk Resources, Inc., Bulk Resources/Louisiana, LLC; 93 Motion to Dismiss for Failure to State a Claim by Bulk Resources, Inc. as further explained herein. The Hernandez Plaintiffs claims against Bulk Louisiana are DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 7/5/2017. (Reference: Both Cases)(clc)
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Hernandez et al v. Dedicated TCS, LLC, et al Doc. 112 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OEN D EL H ERN AN D EZ, ET AL. Plain tiffs CIVIL ACTION VERSU S N O. 16 -3 6 2 1 c/ w 17-4 6 D ED ICATED TCS, L.L.C., ET AL. D e fe n d an ts SECTION : “E”( 5) Ap p lie s t o : BOTH CASES ORD ER AN D REAS ON S Before the Court is a Motion to Dism iss Pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Bulk Resources/ Louisiana, LLC (“Bulk Louisiana”) and Bulk Resources, Inc. (“Bulk Inc.”) requesting that this Court dism iss the claim s brought against them by Plaintiffs, J oendel Hernandez and Anthony Duckworth (the “Hernandez Plaintiffs”). 1 The Hernandez Plaintiffs oppose this m otion. 2 Also before the Court is a Motion to Dism iss Pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Bulk Inc. requesting that this Court dism iss the claim s brought against it by Plaintiffs, Dem ond Stack, Arm ond Burnett, Iesha Burnett, Pam ela Burnett, Nakita Stack, and Shenita Stack, individually and on behalf of the Estate of Arm ond Stack (“Stack Plaintiffs.”). 3 The Stack Plaintiffs oppose this m otion. 4 For the following reasons, the pending m otions to dism iss are GRAN TED IN PART and D EN IED IN PART. 1 R. Doc. 87. R. Doc. 89. As discussed in greater detail below, the H ernandez Plaintiffs did not address the argum ents raised by Bulk Louisiana in the m otion to dism iss. See id. 3 R. Doc. 93. 4 R. Doc. 96. 2 1 Dockets.Justia.com BACKGROU N D On Novem ber 1, 20 0 8, Bulk Inc. and Dedicated TCS, L.L.C. (referred to as “DTCS” or “Dedicated”) entered into an Operating Agreem ent whereby DTCS agreed to operate Bulk Inc.’s facility at the Port of New Orleans. 5 On May 1, 20 10 , Arkem a, Inc. (“Arkem a”) and Bulk Inc. entered into a Transloading Agreem ent whereby Bulk Inc. agreed to, am ong other services, clean Arkem a’s tank cars. 6 On April 22, 20 16, the Hernandez Plaintiffs filed their com plaint against DTCS an d Arkem a. 7 On March 8, 20 17, the Court granted the Hernandez Plaintiffs’ m otion for leave to file an am ended com plaint nam ing Bulk Louisiana an d Bulk Inc. as additional defendants. 8 On October 6, 20 16, the Stack Plaintiffs filed their initial com plaint against DTCS, RST Insurance Com pany, Bulk Louisiana, UVW Insurance Com pany, Arkem a, Inc. and XYZ Insurance Com pany in the Civil District Court for the Parish of Orleans, State of Louisiana. 9 DTCS filed a notice of rem oval in this district. 10 On April 4, 20 17, the Court granted DTCS’ ex parte m otion to consolidate the Hernandez and Stack Plaintiffs’ actions. 11 On April 11, 20 17, the Stack Plain tiffs filed their First Supplem ental and Am ended Com plaint. 12 5 See R. Doc. 81-1. The Stack Plaintiffs attached a copy of the Operatin g Agreem ent and Transloading Agreem ent to their First Supplem ental and Am ended Com plaint. See id. The Hernandez Plaintiffs did not attach a copy of the Operating Agreem ent or Transloading Agreem ent to their Com plaint, First Supplem ental and Am ending Com plaint, or Second Supplem ental and Am endin g Com plaint. The Court finds that it m ay also con sider m aterials outside the Hernandez Plaintiffs’ com plaint in decidin g their m otion, includin g the Operating Agreem ent and the Transloading Agreem ent, as the Hernandez Plaintiffs’ factual allegations explicitly reference Bulk Inc.’s contracts with Arkem a and DTCS. See e.g., Sullivan v. Leor Energy , LLC, 60 0 F.3d 542, 546 (5th Cir. 20 10 ) (citations om itted). 6 R. Doc. 81-2. 7 R. Doc. 1. 8 R. Doc. 60 . 9 Case No. 17-cv-46, R. Doc. 1. 10 Id. 11 R. Doc. 72. 12 R. Doc. 81. 2 The consolidated actions arise out of an incident occurring on or about October 8 , 20 15. On that date, J oendel Hernandez, Anthony Duckworth and Arm ond Stack, em ployees of DTCS, were assigned to clean an Arkem a tank car at the facility operated by DTCS at the Port of New Orleans. Plaintiffs allege that, although the tank car to be clean ed contained hazardous and toxic chem ical vapors, they were ordered to enter the tank car without the protective equipm ent needed to ensure their ability to breathe. The Plaintiffs allege they all im m ediately lost consciousness, and that Arm ond Stack eventually lost his life, as a direct result of their exposure to hazardous vapors and their lack of oxygen in the tank car. The Hernandez and Stack Plaintiffs’ claim s against Bulk Inc. sound in tort. The claim s alleged by the Hernandez and Stack Plaintiffs fall under three distinct theories of tort liability: (1) Bulk Inc. voluntarily and contractually assum ed a duty to provide a safe and OSHA-com pliant working environm ent to the Plaintiffs by entering into the Transloading Agreem ent with Arkem a, and Bulk Inc. negligently breached this duty13 ; (2) Bulk Inc. was negligent in failing to m 0 nitor and supervise the work being perform ed by DTCS under a theory of prem ises liability 14 ; and (3) Bulk Inc. was negligent in hiring DTCS, an entity that it knew was not responsible and that had a known record of safety violations. 15 13 R. Doc. 61 at 3; R. Doc. 81 at 17. R. Doc. 61 at 3; R. Doc. 81 at 6; Case No. 17-46 R. Doc. 1-8 at 6. 15 R. Doc. 61 at 3; R. Doc. 81 at 17-18; Case No. 17-46 R. Doc. 1-8 at 6. Although the Stack Plaintiffs also alleged that Arm ond Stack “was a third-party ben eficiary of the obligations assum ed by Bulk to provide a safe workin g en viron m ent under both the Operatin g and Transloadin g Agreem en ts,” in their respon se to Bulk Inc.’s Motion to Dism iss, the Stack Plaintiffs state, “The Contracts discussed above serve the basis for tort liability against Bulk rather than contractual liability under a ‘stipulation pour autrui.’” See R. Doc. 96 at 5 (referencin g R. Doc. 81 at 18) (em phasis added). 14 3 LEGAL STAN D ARD Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief. 16 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”17 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” 18 The court, however, does not accept as true legal conclusions or m ere conclusory statem ents, and “conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss.” 19 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere conclusory statem ents” or “naked assertion[s] devoid of further factual enhancem ent” are not sufficient. 20 In sum m ary, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.”21 “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not show[n]’—that the pleader is entitled to relief.” 22 “Dism issal is appropriate when the com plaint ‘on its face show[s] a bar to relief.’”23 16 Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 18 Id. 19 S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 78 6 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 20 Iqbal, 556 U.S. at 663, 678 (citations om itted). 21 Tw om bly , 550 U.S. at 555. 22 Id. (quotin g Fed. R. Civ. P. 8(a)(2)). 23 Cutrer v. McMillan, 30 8 F. App’x 819, 8 20 (5th Cir. 20 0 9) (per curiam ) (quotation s om itted). 4 LAW AN D AN ALYSIS I. The Hernandez Plaintiffs’ Claim s Against Bulk Louisiana On March 8 , 20 17, the Hernandez Plaintiffs filed their Second Supplem ental and Am ending Com plaint nam ing Bulk Louisiana and Bulk Inc. as additional defendants. 24 On May 8 , 20 17, Bulk Louisiana and Bulk Inc. filed their m otion to dism iss the claim s brought by the Hernandez Plaintiffs. 25 In the m otion to dism iss, Bulk Louisiana argues the claim s again st it should be dism issed because it has no connection to the incident at issue. 26 Although the Hernandez Plaintiffs filed a response in opposition to the m otion to dism iss filed by Bulk Inc. and Bulk Louisiana, the Hernandez Plaintiffs did not address the argum ents raised by Bulk Louisiana. 27 Bulk Louisiana’s Motion to Dism iss the claim s raised against it by the Hernandez Plaintiffs is granted. II. Whether the Plaintiffs Stated a Claim that Bulk Inc. Assum ed a Duty to Provide Safe Working Conditions and Breached that Duty The Hernandez and Stack Plaintiffs argue they have sufficiently alleged a claim against Bulk Inc. for voluntarily assum ing the duty to provide safe working conditions for DTCS’ em ployees working at the port location and then negligently breaching that duty. 28 The Plaintiffs point to their allegations that Bulk Inc. contractually assum ed certain duties when it entered into the Transloading Agreem ent with Arkem a; 29 that Bulk Inc. represented in the Transloading Agreem ent that it had “all necessary knowledge, skill and 24 R. Doc. 61. R. Doc. 87. 26 Id. at 1. 27 See R. Doc. 89. The Court also notes that in Stack, after the Court granted the Plaintiffs leave to conduct jurisdictional discovery, the Stack Plaintiffs filed an am ended com plaint in which the Plaintiffs rem oved Bulk Louisiana as a nam ed defendant. See R. Doc. 81. 28 R. Doc. 61 at 2-3; R. Doc. 8 1 at 4. 29 R. Doc. 61 at 2-3; R. Doc. 8 1 at 4. 25 5 expertise to handle” Arkem a’s m aterials; 30 and that, under the Transloading Agreem ent, Bulk Inc. was required to “take every reasonable precaution to m inim ize any hazard while perform ing Services” under the Agreem ent, to “notify its em ployees of all hazards associated with m aterials [handled under the Agreem ent] and protect its em ployees from any hazards”, and to “provide to all em ployees a n d co n t r a ct o r s working in or around the Facility sufficient training for the em ployees a n d co n t r a ct o r s to carry out their duties in a safe and responsible m anner . . .”31 “[U]nder Louisiana jurisprudence, parties who voluntarily assum e certain duties for workplace safety m ust perform those duties in a reasonable an d prudent m anner.”32 “Louisiana courts have long held that where a person voluntarily undertakes to perform a task, he thereby assum es the duty to exercise reasonable care in perform ance of that task and m ay be held liable for dam age caused by the breach of that duty, even though he m ay have had no prior obligation to perform the task.”33 “Though the law m ay im pose no duty to act, once a person undertakes to act, he m ust do so with reasonable care.”34 Louisiana courts apply Section 324A of the Restatem ent (Second) of Torts to determ ine liability to a third person for negligent perform ance of an undertaking. 35 Section 324A of the Restatem ent (Second) of Torts provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical 30 R. Doc. 81 at 4. See also R. Doc. 96 at 7-8. Doc. 81 at 4. See also R. Doc. 61 at 2-3; R. Doc. 96 at 8 (citing R. Doc. 81-2 at ¶ 9.2) (em phasis added by Plaintiffs); R. Doc. 8 9 at 3-4 (citin g R. Doc. 61). 32 Bujol v. Entergy Servs., In c., 20 0 3-0 492 (La. 5/ 25/ 0 4), 922 So. 2d 1113, 1129, adhered to on reh'g (J an. 19, 20 0 6). 33 In re FEMA Trailer Form aldehy de Prod. Liab. Litig., 838 F. Supp. 2d 497, 513 (E.D. La. 20 12) (citing LeBlanc v. Stevenson , 770 So. 2d 766, 770 -71 (La. 20 0 0 )). 34 Id. 35 Bujol, 922 So. 2d at 1129 (citing Tillm an v . Travelers Indem nity Co., 50 6 F.2d 917 (5th Cir. 1975)). See also Mundy v. Dep’t of Health & Hum an Res., 620 So. 2d 811 (La. 1993); Harris v. Pizza Hut of Louisiana, Inc., 455 So. 2d 1364 (La. 1984). 31 R. 6 harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm , or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking 36 “[B]ecause such cases involve the im position of liability where the law im poses no duty, the critical threshold question in any such case is whether the defendant affirm atively undertook to perform the task or services at issue.”37 In its notes to Section 324A of the Restatem ent (Second) of Torts, the Am erican Law Institute takes no position as to whether “the m aking of a contract or a gratuitous prom ise, without in any way entering upon perform ance, is a sufficient undertaking to result in liability under the rule stated in this Section.”38 In this case, the Plaintiffs allege that Bulk Inc. entered into a Transloading Agreem ent with Arkem a whereby Bulk Inc. voluntarily assum ed certain duties, but the Plaintiffs do not allege that Bulk Inc. ever undertook to perform these duties. Bulk Inc. m ay be entitled to dism issal on this basis alone. Even giving the Plaintiffs the benefit of 36 Restatem ent (Second) of Torts § 324A (Am Law Inst. 1965). In re FEMA Trailer Form aldehy de Prod. Liab. Litig., 838 F. Supp. 2d at 513-14 (citing Bujol, 922 So. 2d at 1130 -38). 38 Restatem ent (Second) of Torts § 324A (Am Law In st. 1965). The Court notes, however, that in Bujol, the Louisiana Suprem e Court explained, “In determ in ing whether a parent corporation affirm atively undertook the duty of safety owed by its subsidiary, courts have looked to the scope of the parent’s involvem ent, the extent of the parent’s authority, and the underlying intent of the parent to determ ine whether the parent corporation affirm atively undertook the duty owed by the subsidiary.” Bujol, 922 So. 2d at 1131 (citations om itted. Quotin g the First Circuit’s opin ion in Muniz v . N ational Can Corporation , the Louisiana Suprem e Court explained, “Because an em ployer has a non-delegable duty to provide safe workin g conditions for its em ployees, we do not lightly assum e that a parent corporation has agreed to accept this responsibility. Neither m ere concern nor m inim al contact about safety m atters creates a duty to ensure a safe working environm ent for em ployees of a subsidiary. To establish such a duty, the subsidiary’s em ployee m ust show som e proof of a positive un dertakin g by the parent corporation.” Id. (quotin g Mun iz, 737 F.2d 145, 148 (1st Cir. 1984). The Louisiana Suprem e Court did add, however, that “[s]uch an undertakin g m ay be express, as by contract between the parent and the subsidiary, or it m ay be im plicit in the conduct of the parent.” Id. at 1132. 37 7 the doubt and assum in g the allegation that Bulk Inc. entered into a contractual agreem ent with Arkem a, without any allegation that Bulk, Inc. undertook perform ance, is sufficient to establish an undertaking, the Plaintiffs have not sufficiently alleged a claim that Bulk Inc. assum ed a duty owed to them . To satisfy Section 324A, the Plaintiffs m ust allege that (a) Bulk Inc.’s failure to exercise reasonable care increased the risk of harm to them ; or (b) that Bulk Inc. undertook to perform a duty owed by the other, Arkem a, to third persons, the injured em ployees; or (c) they suffered harm because they or DTCS relied upon Bulk Inc.’s undertaking. 39 The Plaintiffs do not allege that Sections 324A(a) or 324A(c) apply. The only scen ario the Plaintiffs possibly allege is under Section 324A(b) – that Bulk Inc. has undertaken to perform a duty owed to them by Arkem a. In Bujol, the Louisiana Suprem e Court explained that an undertaking under Section 324A(b): [I[s a m ore stringent requirem ent than the ‘positive undertaking’ requirem ent of the introductory paragraph [of § 324A]. The m ajority of cases that have held that a parent, or other entity, will only be liable for a voluntary assum ption of duty under § 324A(b) where that corporation’s undertaking was intended to supplant, not just supplem ent, the subsidiary’s duty. 40 The Plaintiffs have not alleged Arkem a had a duty to them . Neither have they alleged that Bulk Inc. assum ed any duty owed to them by Arkem a. Most im portantly, they have not alleged that any undertaking by Bulk Inc. was intended to supplant, not just supplem ent, DTCS’ duty to provide a safe work environm ent to its em ployees. 39 See Restatem ent (Second) of Torts § 324A (Am Law Inst. 1965). In Bujol, the Louisiana Suprem e Court restated the three subparts of Section 324A as: “(a) the defendant’s failure to exercise reasonable care increase the risk of such harm ; or (b) the defendant has undertaken to perform a duty owed by the em ployer to the injured em ployee; or (c) harm is suffered because of reliance of the em ployer or the injured em ployee upon the undertakin g.” See Bujol, 922 So. 2d at 1130 -31 (citing Tillm an v. Travelers Indem nity Co., 50 6 F.2d 917 (5th Cir. 1975)). 40 Id. (collectin g cases). 8 The Plaintiffs have not sufficiently alleged a tort claim against Bulk Inc. under the theory that Bulk Inc. assum ed a duty to provide a safe work place for DTCS’ em ployees. III. Whether the Plaintiffs Have Alleged a Viable Claim Against Bulk Inc. for Prem ises Liability Bulk Inc. m oves to dism iss this claim because the Plaintiffs did not sufficiently allege a valid claim against Bulk Inc. as the owner of the prem ises where the accident occurred. 41 The Stack Plaintiffs allege that under the Operating Agreem ent with DTCS, Bulk Inc. “retained the right to inspect the Facility to determ ine DEDICATED’s com pliance with the Environm en tal Laws.” 42 The Stack Plaintiffs also allege that under the Transloading Agreem ent with Arkem a, Bulk Inc. acknowledged “that it is solely responsible for and in control of operations at its Facility as well as the railcars and trucks utilized for the transport of the Materials.” 43 Based on these allegations, the Stack Plaintiffs contend they have alleged facts sufficient to show that Bulk Inc. m aintained enough control over the port property to render Bulk Inc. liable under a theory of prem ises liability. The Louisiana Civil Code provides responsibility for dam age caused by things in one’s custody. 44 This is to be understood with the following m odification: [T]he owner or custodian of a thing is answerable for dam age occasioned by its ruin, vice, or defect, only upon a showing that he knew, or in the exercise of reasonable care, should have known of the ruin, vice or defect which caused the dam age, that the dam age could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. 45 41 R. Doc. 87-1 at 6; R. Doc. 93-1 at 4. R. Doc. 81 at 3 (citin g 81-1 at § 9C). 43 Id. at 4. 44 La. Civ. Code. art. 2317. 45 La. Civ. Code. art. 2317.1. 42 9 “Thus, the plaintiff m ust prove three elem ents: 1) the defendant either owned or had care, custody or control of the thing in question; 2) the thing was a cause-in-fact of the plaintiff’s injuries; and 3) the thing presented an unreasonable risk of harm .”46 The first issue the Court will address is whether the Plaintiffs have alleged that Bulk Inc. had custody or garde over the port location. The Plaintiffs allege that “[a]t the tim e of the incident at issue, [Bulk Inc.] had a lease on land owned by the Board of Com m issioners of the Port of New Orleans at the location where the subject incident occurred.” 47 The Plain tiffs further allege that Bulk Inc. “entered into an Operating Agreem ent with its affiliate, DEDICATED, [for DTCS] to ‘independently operate’” the port location. 48 “Although there is a presum ption that an owner has custody or garde of its property, this presum ption is rebuttable. One way to rebut the presum ption is by establishing a contractual undertaking by another to m aintain and control the property.” 49 Louisiana Courts have held that when the property owner has delegated supervision and control over the property to an indepen dent contractor, the owner retains no legal duty to provide a safe workplace for workers on the property. 50 “In determ in ing direction or control over the prem ises, and hen ce custody or garde, the courts have looked to whether a defendant possesses the ability to access the prem ises at will and whether the defendant has the ability to alter the prem ises.”51 Bulk Inc. points to its Operating Agreem ent with DTCS in which DTCS agreed to operate a tank cleanin g business on the prem ises Bulk Inc. leased from the port. 52 The 46 Graubarth, 970 So. 2d at 664 (citations om itted). R. Doc. 81 at 2. 48 Id. at 3. 49 Davis v. Riverside Court Condo. Ass’n Phase II, Inc., 20 14-0 0 23 (La. App. 4 Cir. 11/ 12/ 14), 154 So. 3d 643, 648 (quoting Gallina v. Hero Lands Co., 0 3-3331 (La. App. 4 Cir. 10 / 7/ 0 3), 859 So. 2d 758 , 762). 50 See N guy en, 20 So. 3d at 553-54 (citing Buras v . Lirette, 97-1255 (La.App. 3 Cir. 12/ 23/ 97), 74 So. 2d 980 ). 51 Graubarth, 970 So. 2d at 664. 52 R. Doc. 87-1 at 7 (citin g R. Doc. 87-2). 47 10 Operating Agreem ent between Bulk Inc. and DTCS provided that DTCS, not Bulk Inc., had control and custody of the prem ises throughout the term . 53 The Operating Agreem ent specifically included the following term s: (1) “Operator [DTCS] desires to in dependently operate an industrial tank trailer wash facility at Bulk’s facility”54 ; (2) “Operator shall, at all tim es, keep the Facility in a n eat, clean, and orderly condition”55; (3) “Operator shall perform all m ainten ance and repair, including, without lim itation, sweeping, snow rem oval, trash rem oval, replacing light bulbs, clearing closed drains”56 ; (4) “Operator covenants and agrees that, at the expiration [of] the agreem ent, it shall quit and surrender the Facility with all the im provem ents thereon in as good a state and condition as the sam e were at the Com m encem ent Date”57; (5) “Bulk, its contractors, invitees, and their respective em ployees shall have the right of access to the Facility to determ ine the state of m aintenance and repair. Bulk shall schedule such access, to the extent reasonably possible, so as not to m aterially interfere with Operator’s operation of the facility”58 ; (6) “Bulk had the right to inspect the facility, but only upon three business days written notice to Dedicated to determ ine com pliance with applicable environm ental laws” 59 ; (7) “Operator shall conduct its activities on the Facility in m aterial com pliance with all applicable statutes, ordinances, regulations, orders an d requirem ents of any governm ental authority, agency, or in strum entality”60 ; (8) “Operator shall have the right to paint, install light or decorations, or install signs . . . on or about the Facility or any part thereof”61; (9) “Operator shall be liable for all taxes levied or assessed against person al 53 See R. Doc. 87-2. Id. at 1. 55 Id. at § 4A. 56 Id. 57 Id. at § 4B. 58 Id. at § 4D. 59 Id. at § 9C. 60 Id. at § 6A. 61 Id. at § 8A. 54 11 property, furniture or fixtures placed by Operator in the Facility”62 ; (10 ) At the expiration of the Operating Agreem ent, Dedicated had the responsibility to ‘surrender’ the prem ises to Bulk Inc. 63 Bulk Inc. argues these provisions establish that DTCS, and not Bulk Inc., had custody and control of the prem ises. The Stack Plaintiffs respond by alleging that, under the Operating Agreem ent, Bulk Inc. retained the right to inspect the Facility to determ ine DTCS’ com pliance with environm ental laws. 64 The Stack Plaintiffs cite Moore v. Safew ay , Inc. to support their argum ent, but the defendant in Moore undertook to perform its contractual right to conduct safety inspections of the jobsite on its property where the Plaintiffs were injured. 65 The Stack Plaintiffs do not allege Bulk Inc. undertook to perform its contractual right to conduct safety inspections in their com plaint. Instead, the Stack Plaintiffs allege Bulk Inc. was negligent in “failing to inspect the Facility at which DEDICATED was perform ing operations to ensure that it was com plying with all applicable Environm ental Laws, in cluding OSHA.”66 Even if the Stack Plaintiffs had alleged Bulk Inc. undertook the perform ance of its contractual right to conduct safety inspections, the Plaintiffs would still not have sufficiently alleged that Bulk Inc. retained custody or garde over the port location. In determ ining direction or control over the prem ises and hence custody or garde, the courts have looked to whether a defendant possesses the ability to access the prem ises at will and whether a defendant has the ability to alter the prem ises.”67 Louisiana courts have held that where there is only a “lim ited ability to inspect the prem ises [and] a lim ited 62 Id. at § 10 A. Id. at § 13A. 64 R. Doc. 81 at 3 (citin g R. Doc. 81-1 at § 9.C). 65 Id. at 10 (citing Moore v. Safew ay , Inc., 95-1552 (La. App. 1 Cir. 11/ 22/ 96), 70 0 So. 2d 831, 8 46). 66 R. Doc. 81 at 6. 67 Graubarth, 970 So. 2d at 664. 63 12 access to enter the prem ises,” the prem ises owner or lessor is not liable for activities on the prem ises. 68 “In order to allege that Bulk Inc., irrespective of its agreem ent to sublease the property to DTCS, retained custody or garde over the port location, the Plaintiffs would have had to allege that Bulk Inc. retain ed m ore than just a lim ited ability to in spect and access the prem ises and the Plaintiffs have not done so. The Plaintiffs have not sufficiently alleged a tort claim for prem ises liability again st Bulk Inc. IV. Whether the Hernandez an d Stack Plaintiffs Have Stated a Viable Claim that Bulk Inc. was Negligent in Hiring or Entering a Subcontract With DTCS “Louisiana law im poses a separate duty on principals to exercise reasonable care in selecting or hiring an independent contractor.”69 Louisiana courts have explained that “[o]ne who hires an irresponsible in depen den t contractor m ay be independently liable.”70 A principal breaches “this duty if it knew or should have known that [the independent contractor] was irresponsible.”71 The Hernandez and Stack Plaintiffs allege Bulk Inc. was negligent in contracting with their em ployer, DTCS. 72 The Hernandez Plaintiffs specifically allege Bulk Inc. was negligent in contracting with DTCS because DTCS has a known record of safety 68 Graubarth, 970 So. 2d at 664-65. See also Bethea v. Great Atl. & Pac. Tea Co., 20 0 7-1385, (La. App. 4 Cir. 9/ 30 / 0 9), 22 So. 3d 1114, 1116 (citing Chaplain v. Am erican Em pire Surplus Lines Ins. Co., 98-1372 (La. App. 4 Cir. 3/ 31/ 99), 731 So. 2d 973). 69 Bourg v. BT Operating Co., 20 0 9 WL 960 0 11, at *9 (S.D. Tex. Apr. 8 , 20 0 9) (citing Hem phill v. State Farm Ins. Co., 472 So. 2d 320 , 324 (Hem phill v. State Farm Ins. Co., 472 So. 2d 320 (La.App. 3 Cir. 1985). See also Evans v. Allstate Ins. Co., 194 So. 2d 762 (La.App. 1 Cir. 1967); Dragna v. KLLm Transp. Servs., L.L.C., 638 F. App’x 314 (5th Cir. 20 16); Schram v. Colony Specialty Ins. Co., 20 16-598 , 20 16 WL 74758 27 (La.App. 3 Cir. 12/ 29/ 16) (unpublished); Guillory v. Conoco, Cont’l Oil Co., 521 So. 2d 1220 (La. Ct. App.), w rit denied sub nom . Guillory v. Conoco, Inc., 526 So. 2d 80 1 (La. 198 8); Perkins v. Gregory Mfg. Co., 950 1396 (La. App. 3 Cir. 3/ 20 / 96), 671 So. 2d 10 36, w rit denied, 96-0 971 (La. 5/ 31/ 96), 673 So. 2d 10 39. 70 Bourg, 20 0 9 WL 960 0 11, at *9 (quoting Hem phill, 472 So. 2d at 324). 71 See id at *10 (citing Hem phill, 472 So. 2d at 324). The Court acknowledges that it is not clear whether actual knowledge is required in Louisiana to support a negligent hiring claim . See Dragna, 638 F. App’x at 319 (citations om itted). 72 R. Doc. 61; R. Doc. 81; Case No. 17-46 R. Doc. 1-8 . 13 violations. 73 The Stack Plaintiffs specifically allege Bulk Inc. negligently contracted with DTCS to provide tank clean ing services when it was aware of DTCS’ record of safety violations prior to the subject incident. 74 Ordinarily, a case filed under this theory of tort liability would involve a claim filed by an injured unrelated third party against a principal who hired an irresponsible contractor who is not the plaintiff’s em ployer. In deciding whether this theory of recovery has been sufficiently alleged in this case, the Court m ust determ ine whether the em ployees of the irresponsible contractor, DTCS, have a viable claim against Bulk Inc. for negligently contractin g with their direct em ployer. A review of the lim ited case law regarding a principal’s independent duty to exercise reasonable care in selecting or hiring an in dependent contractor convinces the Court that the em ployees of the irresponsible independent contractor m ay bring such a cause of action against the principal. Rather than focusing on whether the irresponsible contractor is the em ployer of the plaintiff, Louisiana courts have focused on the principal’s knowledge of the subcontractor’s irresponsibility at the tim e of hiring. 75 In Perkins v. Gregory Manufacturing Co., the plaintiff, Larry Wayne Perkins, sued Boise Southern Corporation (“Boise”) on a claim that Boise negligently hired Kim J ohnson Trucking Com pany to harvest tim ber on one of its properties. 76 As the Louisian a Third Circuit Court of Appeals explained, “Kim J ohnson Trucking then either contracted with or hired George Davis to supply the saws and tree trim m ers. Davis hired Perkins as a tree trim m er.” 77 A few hours after the com m encem ent of the tim ber harvesting 73 R. Doc. 61 at 3. R. Doc. 81 at 5. 75 See e.g. Guillory , 521 So. 2d at 1225. 76 Perkins, 671 So. 2d at 10 37. 77 Id. 74 14 operation, a tree fell on Perkins. 78 The Perkins court considered whether Boise was independently negligent for the hiring of Kim J ohnson Trucking. 79 The Perkins court affirm ed the trial court’s ruling granting Boise’s m otion for sum m ary judgm ent because “[t]here is no evidence in the record to dem onstrate negligent hiring practices on the part of Boise.” 80 Although sum m ary judgm ent was granted, the court did not rule out the possibility of a claim for negligent selection or hiring by the em ployee of the irresponsible contractor. 81 Sim ilarly, in Guillory v. Conoco, Inc., Continental Oil Co., the plaintiff, Charles Guillory, sued Conoco Inc. (“Conoco”) on a claim that Conoco negligently hired a gen eral contractor, Daniel Construction Com pany. 82 The Guillory court explained that Conoco contracted with Daniel Construction Com pany to build a new unit on Conoco’s land to refine “sour crude.” 83 Daniel Construction Com pany then contracted out som e of the specialty work to subcontractors, including the plaintiff’s em ployer, Morgan Roofing Com pany, which installed roofing m aterials on five large oil storage tanks. 84 As explain ed by the court, “Morgan’s em ployees worked on top of the tanks, over 40 feet high, without any type of fall protection, in violation of OSHA and Conoco safety rules, which Daniel [Construction Com pany] had contractually agreed to follow.” 85 The Louisiana Third Circuit Court of Appeals affirm ed the trial court’s decision not to instruct the jury regarding Conoco’s liability for negligently hiring Daniel Construction Com pany. The court reasoned there was “no eviden ce that Conoco knew, at the tim e it hired Dan iel 78 Id. Id. 80 Id. 81 Id. The Perkins court ultim ately held that Boise, the principal, did not owe a duty to protect the contractor’s own em ployees from risks inherent to the job. 82 Guillory , 521 So. 2d at 1222. 83 Id. 84 Id. 85 Id. 79 15 Construction Com pany, that Daniel was irresponsible. Any negligent conduct of Daniel in allowing the Morgan em ployees to work without fall protection in violation of the safety regulations occurred after Daniel was hired by Conoco.”86 Again, the court focused on whether there was evidence dem onstrating Conoco knew, at the tim e it hired Daniel Construction Com pany, that Daniel Construction Com pany was irresponsible. The Plaintiffs have sufficiently alleged a claim that Bulk Inc. n egligently selected or hired their em ployer, DTCS, to operate the port facility as an independent contractor. The Plaintiffs allege that Bulk Inc. knew of DTCS’ num erous OSHA violations. 87 The Stack Plaintiffs further allege that “Dating back to 20 12, DEDICATED repeatedly has been cited for violations of the OSHA regulations set forth in 29 CFR 1910 .146 pertaining to requirem ents for practices and procedures to protect em ployees from the hazards of entry into perm it-required confined spaces, including railcars.” 88 In addition, the Stack Plaintiffs allege that seven of the ten “citations issued to DEDICATED for OSHA violations pertained to confined-space violations.”89 Further, it is clear that Bulk Inc’s alleged knowledge of DTCS’ num erous OSHA violations is not a conclusory allegation; Bulk Inc. is a m em ber of Dedicated TCS, LLC. 90 The Plaintiffs have sufficiently alleged a tort claim under the theory that Bulk Inc. was negligent in contracting with or hiring DTCS. 86 Id. at 1224-25. R. Doc. 61 at 3; R. Doc. 81 at 5; Case No. 17-47 R. Doc. 1-8 at 6. 88 R. Doc. 81 at 6-7. The H ernandez Plaintiffs also allege that DTCS received, and ignored, num erous reprim ands by OSHA for violating requirem ents to test air quality and provide life lines to its em ployees. R. Doc. 32 at 1-2. 89 R. Doc. 81 at 6-7. 90 See R. Doc. 96 at 13. 87 16 CON CLU SION For the foregoing reasons; IT IS ORD ERED that the Motions to Dism iss filed by Defendants Bulk Inc. and Bulk Louisiana 91 are GRAN TED IN PART AN D D EN IED IN PART. IT IS FU RTH ER ORD ERED that the Motions to Dism iss the causes of action based on an assum ption of a duty and prem ises liability 92 are GRAN TED . The Plaintiffs’ causes of action based on an assum ption of a duty and prem ises liability are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that the Motions to Dism iss the causes of action based on Bulk Inc.’s negligent hiring or contracting with DTCS 93 are D EN IED . IT IS FU RTH ER ORD ERED that the Motion to Dism iss the Hernan dez Plaintiffs’ claim s against Bulk Louisiana 94 is GRAN TED . The Hernandez Plaintiffs’ claim s against Bulk Louisiana are D ISMISSED W ITH PREJ U D ICE. N e w Orle a n s , Lo u is ian a, th is 5th d ay o f Ju ly, 2 0 17. ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 91 R. Docs. 87, 93. R. Docs. 87, 93. 93 R. Docs. 87, 93. 94 R. Doc. 87. 92 17
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