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In Howard v. The Oil Companies, 247 U.S. 503, this court affirmed, per curiam, the judgment of the United States District Court for the Western District of Oklahoma enjoining the enforcement of a tax imposed by the State on the gross value of the production of oil and gas, less the royalty interest, under leases upon Osage lands made for the benefit of the Indians.
Summary of this case from Jaybird Mining Co. v. WeirOpinion
No. 93 CA 0279.
March 11, 1994. Rehearing Denied May 18, 1994.
APPEAL FROM SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY, STATE OF LOUISIANA, HONORABLE MARCUS A. BROUSSARD, JR., J.
Lawrence S. Kullman, New Orleans, for plaintiff-appellant Howard Chelpanoff.
Charles J. Boudreaux, Jr., Lafayette, for defendant-appellee Dr. Melvin Bourgeois.
Edward M. Leonard, Jr., Morgan City, for defendant-appellee Parish of St. Mary.
Lloyd W. Hayes, New Orleans, for defendant-appellee Dr. Brian Matherne.
Craig W. Marks, Lafayette, for defendant-appellee Placid Oil Co.
John W. Penny and John A. Keller, Lafayette, for intervenor-appellant CIGNA Property Cas. Companies.
Before WATKINS, SHORTESS and FOGG, JJ.
By this suit, Howard Chelpanoff seeks to recover damages for injuries he sustained as a result of his contracting malaria while working on an oil drilling rig in Africa. On motion of defendant, Placid Oil Company (Placid), the trial court granted summary judgment, dismissing plaintiff's action. For the following reasons, we affirm.
In June of 1987, Placid Oil Company Zambia, a Delaware corporation and subsidiary of Placid, contracted with Penrod Drilling Company (Penrod) to conduct drilling operations on behalf of Placid Oil Company Zambia in the Republic of Zambia. Howard Chelpanoff, an employee of Penrod, went to Zambia in September of 1987 and worked there until February 9, 1988, when he returned to Louisiana. Shortly thereafter, he began to experience symptoms which were ultimately diagnosed as malaria.
Chelpanoff filed this action for damages against several defendants, including Placid. All of the defendants, except Placid, were dismissed from the lawsuit prior to the filing of the instant motion for summary judgment by Placid. The trial court granted summary judgment in favor of Placid upon a finding that Placid owed no duty to the plaintiff to protect him from the harm of malaria. Plaintiff and intervenor, Cigna Property and Casualty Companies, appealed.
Cigna Property and Casualty Companies intervened in this action, seeking reimbursement for worker's compensation benefits it paid to Howard Chelpanoff. It is sometimes referred to in the record as Aetna Insurance Company.
Appellants contend that, even though Placid initially had no legal duty to protect him from malaria, Placid assumed the duty by sharing its knowledge of the risks and treatment of malaria with Penrod. In making that argument, plaintiff relies on the following undisputed facts.
In the summer of 1987, Placid contacted Dr. F. Kevin Murphy, a specialist in internal medicine and infectious diseases with a sub-specialty in tropical medicine, and requested that he outline those health precautions that would be appropriate for personnel who would be working in Zambia. He relayed his recommendations to Tom Stroud, a Placid employee, by letter dated August 5, 1987. Therein he stated that malaria was present in Zambia and gave recommendations for the prevention and treatment of the disease.
Robert M. Adkins, Manager of Employee Relations for Placid, placed Dr. Murphy's letter in a booklet of materials compiled for the Placid employees who were going to work in Zambia. This booklet was provided to Penrod and its employees through Louis Mullenix, Penrod's Director of Human Resources. Placid advised Mullenix that Penrod's employees or their employees could contact Dr. Murphy directly if they had any problems.
Prior to leaving for Zambia, Chelpanoff participated, with other members of his drilling crew assigned to the project, in an orientation session given by Richard Hebert, the Penrod employee responsible for the recruitment and orientation of those Penrod employees who had volunteered to go to Zambia. At that time, Hebert gave all members of the crew written information concerning Zambia, which included the packet compiled by Placid. The packet included a list of required immunizations and identification of the various diseases that were prevalent in Zambia, including malaria. Also included was the letter written by Dr. Murphy on August 5, 1987. Crane v. Exxon Corp., U.S.A., 613 So.2d 214 (La.App. 1st Cir. 1992).
In order to determine whether liability exists under La.C.C. art. 2315, the Louisiana Supreme Court has adopted the duty-risk analysis. Dixie Drive It Yourself Sys. v. American Beverage Co., 137 So.2d 298 (La. 1962). To prevail under this doctrine, Chelpanoff must show Placid owed him a duty, Placid breached that duty, and his damages resulted from the breach.
The existence of a duty is a question of law. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La. 1984). Generally, duty is defined as the obligation to conform to the standard associated with a reasonable man in like circumstances. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. Socorro v. City of New Orleans, 579 So.2d 931 (La. 1991).
In the instant case, even though Placid provided information about the risks of malaria to Penrod and a Placid employee attended some of the orientation sessions held by Penrod for its employees, it did not institute or control the mechanisms used by Penrod to alert its employees of the dangers and treatment of malaria. Furthermore, it did not continually concern itself with the health of Penrod employees or attempt to control or improve the mechanisms by which Penrod to addressed the issue of their health. This case is unlike Crane v. Exxon Corp., U.S.A., 613 So.2d 214 (La.App. 1st Cir. 1992), which is relied on by appellants. In Crane, an employee of a contractor who was injured on a construction job filed suit against the principal, Exxon Corporation, which had hired the contractor to do the work. The court found that, although the independent contractor defense protected Exxon from liability for the acts of the contractor, Exxon had voluntarily assumed the duty to protect the employees of the contractor when its field coordinator monitored the jobsite for violations of its safety standards by the contractor. Therein Exxon was held liable for its employees' negligent breach of this assumed duty. In the instant case, Placid provided no continual, regular monitoring of the health of Penrod's employees.
Since Placid had no direct control over the system used to advise Penrod employees of the methods of preventing and treating malaria and Placid did not attempt to secure the health of Penrod's employees by continual monitoring, we find that Placid did not voluntarily assume the duty of advising Penrod's employees of the risks of contracting malaria while in Zambia or of the treatments of the disease.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed equally against Howard Chelpanoff and Cigna Property and Casualty Companies.
AFFIRMED.
SHORTESS, J., dissents with reasons.
Was there a legal duty assumed by Placid in this case when it advised Penrod employees as to problems regarding contracting malaria while they worked in Zambia? If so, then the grant of summary judgment was erroneous because so many issues of material fact flow from the issue of whether there was a breach of that duty.
My examination of this case convinces me Placid did assume a legal duty. It retained Dr. F. Kevin Murphy, a tropical disease specialist in Dallas, Texas, to advise it as to what medical precautions should be taken during the Zambia project. Murphy prepared a seven-page report on August 5, 1987, addressed to Tom Stroud, manager of drilling operations, wherein he sets forth health risks in Zambia, including malaria. Placid gave Penrod the Murphy report (which became part of the orientation kit furnished to all of its Zambia-bound employees).
Zambia operations began in August 1987. In November, a Placid employee contracted malaria and was treated by Murphy in Dallas. Murphy called Stroud and re-emphasized his August 1987 recommendations. Stroud, however, did not communicate to Penrod any of Murphy's concerns at that time.
In February 1988, another Placid employee got malaria. He was also seen by Murphy when he returned to the United States. On February 11, 1988, Murphy wrote to Placid's Personnel Director, Bob Adkins, indicating that he felt, at the least, that his original (August 1987) recommendations were not being followed.
Then on February 20, 1988, plaintiff was admitted to Terrebonne General Hospital. Unfortunately, Adkins did not forward Murphy's February 11, 1988, communication to Penrod until February 23, 1988. (It was received on February 29.)
Clearly, in my opinion, Placid was interested and concerned with diseases its personnel might contract in Zambia, including malaria. To help assure a safe operation, it had taken affirmative steps to educate its personnel and subcontractors on the precautions necessary to minimize the effects of malaria. By so doing, Placid assumed a legal duty toward its own employees and its subcontractor Penrod's employees to properly educate them on such precautions. Had Adkins promptly forwarded the February 11, 1988, communication to Penrod, perhaps plaintiff would have taken the treatment recommended by Murphy in his August 1987 report:
In the event of malaria-like illness consisting of high fever, shaking chills, and headache, three tablets of [F]ansidar, each consisting of 25 milligrams pyrimethamine and 500 milligrams sulfadoxine should be taken by mouth. Prompt medical attention should then be sought.
Whether there was a breach remains to be proven. At this point in the litigation, I see too many issues of fact and would reverse the grant of summary judgment.
I respectfully dissent.