The threshold question of this theory of negligence is whether the particular manner in which the work practice was conducted was unsafe. This analysis requires determining at what level of generality to view the work practice. We have provided some clarity on this issue under Louisiana law. See Davis, 865 F.3d at 236–37. In Davis, we held that, based on those facts, the exception to a principal’s shield from liability did not apply. Id. at 237. Davis was a crane mechanic employed by Gulf Crane Services, which was hired as an independent contractor by Dynamic Offshore Resources. Id. at 235. On the relevant day, Davis was obtaining a winch from Dynamic Platform 86A to transfer to Platform 86B so that he could replace a winch there. Id. at 235–36. While at Platform 86B, Davis grew concerned about the safety of the work because of the wind, so he used his “stop work authority” to delay the work. Id. at 236. Rather than radio those at Platform 86A to inform them to stop, he asked the crane operator to transport him to Platform 86A in a personnel basket. Id. The operator swung the basket into the wind when he should have swung it with the wind. Id. Davis dropped six to eight feet in the basket and was injured. Id.
The court reviewed the district court’s summary judgment for Dynamic, analyzing whether there was a genuine dispute of material fact as to the question of implied authorization of unsafe work practices. Id. The court framed the particular manner of the practice as making a personnel-basket transfer in high winds. Id. at 237. In doing so, the court could have but did not frame the unsafe work practice as making personnel-basket transfers generally or making personnel-basket transfers by swinging into instead of with the wind. See id. Rather than choose a highly specific or general frame, that court chose the one in the middle. In Davis, the court held that Dynamic as a matter of law had not authorized the personal-basket transfer in high winds and affirmed summary judgment. Id.
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