Portal:United States Court of Appeals for the Fifth Circuit

“ The BBB rating may reflect more on the Casino’s failure to investigate adequately before hiring AWR than it reflects on the competency of AWR. The jury, however, is permitted to make inferences from the evidence. Regardless, the BBB rating is not the only evidence Echeverry presented for the negligent-hiring theory.
Other evidence was that AWR’s certificate of insurance showed an expired insurance policy. The Casino’s internal policies required that it hire only contractors who were insured. ”

“ A principal retains operational control if it has “direct supervision over the step-by-step process of accomplishing the work such that the contractor is not entirely free to do the work in his own way.” Id. Whether a principal retains operational control turns on the principal’s control over the independent contractor and its employees, not on the principal’s control over its own premises. ”

“ 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 expedite the project so that it could be completed before Mardi Gras and the NBA All-Star game, designating the purchase order as “urgency: emergency.” The evidence was sufficient for a reasonable jury to conclude that the Casino had authorized unsafe work practices.
There is sufficient evidence under each theory of negligence. ”

“ 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. ”

“ 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 ”

“ This rule preserves as much of the jury’s award as possible. Longoria, 932 F.3d at 365.
Here, the award was excessive under either standard. Echeverry had three surgeries to repair her ankle injuries. She had a trimalleolar fracture, involving breaks to her lateral malleolus, medial malleolus, and posterior malleolus. The fracture was comminuted, meaning that her ankle was in pieces. Echeverry’s ankle already shows signs of post-traumatic arthritis. She will have chronic, “toothache”-like pain for the rest of her life, as well as scarring. ”

“ 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. ”