Premises Owner Obtains Summary Judgment Based on Lack of Vicarious, Strict, and Direct Liability

U.S. District Court for the Eastern District of Louisiana, July 6, 2020

In Lopez v. McDermott, Inc., pending in the U.S. District Court for the Eastern District of Louisiana, Exxon Mobil moved for summary judgment. In the operative complaint, the plaintiffs allege that Mr. Lopez (the plaintiff) was exposed to asbestos-containing products while employed as a welder/pipefitter at Kellogg Brown & Root between 1973 and 1986, which caused him to develop malignant mesothelioma. With regard to Exxon, the plaintiffs’ claims against them sounded in negligence and strict liability as the owner of a fixed offshore platform on which the plaintiff worked.

In its motion for summary judgment, Exxon made four primary arguments: (1) the plaintiffs’ expert concluded the plaintiff’s work on the Exxon platforms was not a substantial contributing cause to his mesothelioma; (2) Exxon did not owe a duty to protect the plaintiff from the inherent risks of his employment; (3) Exxon, as a premises owner, cannot be strictly liable for an alleged defect that it is temporary in nature; and (4) the plaintiff was not entitled to punitive damages because there was no evidence that plaintiff was exposed to asbestos from Exxon’s premises when punitive damages were recoverable. Furthermore, Exxon argued that it did not participate in the storage, handling, or transportation of hazardous substances, and its behavior was not wanton or reckless. The plaintiffs opposed the motion, arguing that they had provided sufficient evidence the plaintiff’s work on Exxon platforms substantially caused his mesothelioma; that Exxon owed the plaintiff a duty under direct and vicarious liability theories; and that Exxon was strictly liable for the plaintiff’s mesothelioma as a premises owner. The plaintiffs did not address the arguments regarding punitive damages. After Exxon re-iterated much of the same arguments from the original motion, the court ruled on each issue individually.

Despite the court’s review and analysis of the testimony and arguments of Exxon to support summary judgment, the court found the plaintiffs succeeded in raising a genuine issue of material fact with respect to exposure. As there was testimony regarding pipe insulation work being performed in plaintiff’s presence, the court held that the evidence could be construed by a jury as indicating that asbestos-containing materials contained to be used on Exxon platforms in a manner that would release asbestos fibers in the air.

With regard to the vicarious liability argument, the court heavily analyzed prior decisions regarding the creation of a legal duty, as well as a fact-specific inquiry determination of the plaintiff’s role as either an employee or independent contractor at the Exxon location. The court held that in the absence of evidence that Exxon specifically recognized the risk associated with Brown & Root’s work and authorized the unsafe practice, Exxon did not have a duty to Brown and Root employees under a theory of vicarious liability. Furthermore, with regards to the claims for direct liability, the court held that Exxon could not be held directly liable as a premises owner because the hazard of asbestos was not inherent to Exxon’s premises but to the nature of the work performed by the welders and pipefitters employed by Brown & Root. As such, the court held that summary judgment on the plaintiffs’ negligence claims was warranted on the grounds that Exxon did not have a duty to plaintiff under either a theory of direct or vicarious liability.

With regard to the plaintiffs’ claims for strict liability, the court held the record suggested Exxon did not have care, custody, or control over the asbestos at the time it allegedly injured the plaintiff. The court held that while asbestos containing materials may have been present on the Exxon platforms, there was no record evidence that Exxon ever had care, custody, or control over that material. Instead, Brown & Root supervisors who provided the tools, equipment, and materials, oversaw the operation, and gave instructions to welders and pipefitters maintained this control.

Based on its findings, the court granted Exxon’s Motion for Summary Judgment.