Stoot v. D & D Catering Service, Inc.

807 F.2d 1197 (5th Cir. 1987)

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Nature of the Case

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Facts

P was injured while employed by Fluor Drilling Services, Inc. (Fluor) as a derrickman aboard a jackup drilling rig, located twelve miles off the Texas coast. The rig was owned by the intervenor, Fluor, and most of the personnel working aboard the vessel were Fluor employees. Fluor contracted with D to provide the food service on the vessel and D employees performed the cooking and other work related to this contract. P's assigned duties frequently prevented him from eating during regular meal hours. P reported to the galley early for his meals. Eloise Porter, D's chief cook, objected to giving P his meals at these irregular times. P reported Porter's complaints to the Fluor toolpusher or supervisor, who in turn instructed Porter that she was required to give P his meals at irregular times. Porter later confronted P. P told Porter, 'Kiss my ass,' whereupon Porter came out of the kitchen into the dining area wielding a knife and replied, 'Nobody tells me to kiss their ass.' Porter swung the knife severing the third and fourth digits and lacerating the fifth digit of P's right hand. P sued D. The district court held that an independent contractor who supplies the galley crew for a vessel cannot be held vicariously liable for the acts committed by its employees while working as a member of the vessel's crew. The court held that even if D & D was vicariously responsible for Porter's actions, Porter was not acting in the course and scope of her employment when she struck P. P appealed.