Judge Greg Guidry on Negligence
From Judgepedia
The children of deceased welder, who was employed by a subcontractor that was hired by contractor to remove tanks, brought wrongful death and survival action against property owner and contractor. Judge Guidry wrote the court's opinion which affirmed in part, reversed in part, and remanded the case, holding that the property owner owed no duty to welder, and genuine issues of material fact as to whether contractor owed welder a duty precluded summary judgment.
The issue presented was whether White, the deceased worker, was an independent contractor or an employee as to Shell, and Steve’s Welding, for which he worked and which had contracted with Shell agreeing to remove 3 large tanks from Shell’s premise. The Court found that as to Shell, White was an independent contractor based on a contract for a set price, for a specified job to be performed, and in a specified time period. The job was of an independent nature and the method was not dictated or controlled by Shell. Genuine issues of material fact precluded summary judgment in favor of Steve’s Welding because there was no clear contract, operation control was unclear and the work was part of its regular business.
- It is not the supervision or control which is actually exercised by the employer that is significant, but whether, from the nature of the relationship, the right to do so exists.
- The Court similarly found that in deciding whether a person performing work for another is an employee or an independent contractor, and, thus, whether the principal is liable for that person's negligence, the court is to analyze the degree of independence or subserviency of the person in accordance with the following factors: “(1) the existence of a contract for the performance of a specific job, (2) payment of a fixed price for the work, (3) employment by the contractor of assistants who are under his control, and (4) the furnishing of tools and materials and the right to control the conduct of the work while in progress.”
