Here, the Casino offers a broad framing of the work practice as being the use of a flagman to move a manlift. It argues that because using a flagman to move a manlift is the industry standard, Echeverry’s claim fails the threshold requirement that the work practice be unsafe before even addressing whether the Casino authorized it. Alternatively, the Casino frames the practice narrowly as the failure of the flagman to make an effective warning to pedestrians in the path of the manlift; the Casino is correct that it did not authorize that particular manner of using a flagman. Our evaluation of Davis makes us conclude that the relevant practice needs to start with the underlying action of using a manlift, then add some specifics of the occasion of its use—here, moving a manlift against vehicular traffic at a busy intersection when there was substantial pedestrian traffic. There was evidence that the flagman did not alert Echeverry, and indeed just walked past her despite the imminent passage of the manlift. Jurors had sufficient evidence to support the conclusion that the particular manner in which the manlift was moved was unsafe.
There was an unsafe work practice, but there must also be evidence that the Casino expressly or impliedly authorized that unsafe practice. Again, according to Louisiana law, a company man’s presence and knowledge of an unsafe condition is insufficient to make the company liable under the implied-authorization exception. Graham, 21 F.3d at 646. In Graham, we interpreted a Louisiana case as holding that the principal was not liable under this exception because “only the [independent contractors] participated in the decision to use” the negligent procedure. Id. at 646 (alteration in original) (quoting Williams, 499 So. 2d at 626).
Unlike in Graham, the Casino here did participate in the decision to use a flagman. Casino employee Stuart attended safety meetings with AWR to discuss the practices that would be used, including using a flagman. The Casino provided AWR with the manlift. The Casino was also trying to
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