Lack of Evidence Prevented “Direct” Negligence Claim Against Labor Personnel Contractor

In an unpublished opinion stemming from a Longshore and Harbor Workers’ Compensation Act claim, the Fifth Circuit affirmed a district court’s grant of summary judgment dismissing a “direct” negligence suit against a labor personnel contractor.  A horrific explosion occurred when an unskilled worker allegedly failed to properly ventilate the area or use “explosion proof” safety lighting.  The unskilled worker died, as did another worker.  Five were injured, including the plaintiff-worker.  The plaintiff-worker and his spouse then filed a suit against the labor personnel contractor that supplied the unskilled worker to a borrowing employer.  The argument was that the labor personnel contractor was negligent in its hiring, retention and training of the unskilled worker, and that led to the explosion. 

To establish their negligence claim, the plaintiffs had to show that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty; (3) the plaintiff suffered damages; and (4) the breach proximately caused the damages.  Here, the borrowing employer asked for an “unskilled laborer,” meaning someone who was “physically able to go to work.”  The labor personnel contractor obliged.  Thus, the plaintiffs’ negligent training claim failed as a matter of law.  As for negligent hiring, the Fifth Circuit noted that there simply was no evidence that the unskilled worker constituted a risk of harm to those individuals whom the labor personnel contractor owed a duty.  Because the plaintiffs did not have evidence of any such negligence on the part of the labor personnel contractor, their lawsuit had to fail.  

Finally, the Fifth Circuit noted that a novel issue was presented, but that it did not have to decide that issue to resolve the case.  The issue raised was “whether the nominal employer of an injured plaintiff’s co-employee can be liable to the plaintiff for its direct negligence.” 

Ates v. B&D Contracting, Inc., No. 11-60833 (5th Cir. Sept. 4, 2012) (unpublished).