UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 99-60040 _____________________

LARRY DOHERTY,

Plaintiff-Appellant,

versus

CHEVRON USA, INC.,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi (1:98-CV-121-RG) _________________________________________________________________ February 10, 2000

Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

For this Mississippi diversity action, Larry Doherty appeals

an adverse summary judgment, which dismissed his negligence action

against Chevron USA, Inc., for injuries he sustained, while an

employee of Manning Construction Company, an independent

contractor, when he was operating a crane owned by Chevron, on its

premises. We AFFIRM.

I.

Doherty was employed as a crane operator by Manning, which was

performing work for Chevron at its refinery in Pascagoula,

Mississippi, pursuant to a contract which provided, inter alia,

that Manning was “an independent contractor, maintaining complete

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. control over [Manning’s] personnel and operations”.

In August 1996, while operating a crane owned and maintained

by Chevron, Doherty was injured when he fell after slipping in

hydraulic fluid leaking from the crane. For approximately five

years prior to his accident Doherty had complained to Chevron about

the leaking fluid, including through “The ‘Operator’s Daily

Checklist’”, also signed by his Manning supervisor.

In March 1998, Doherty filed this action against Chevron,

claiming that it negligently failed to provide him a safe work

place and negligently failed to maintain the crane and correct a

dangerous condition. The parties consented to proceed before a

magistrate judge.

Chevron moved for summary judgment, contending it was not

liable because Doherty, an employee of an independent contractor,

was allegedly injured while performing work for his employer which

arose out of its contract with Chevron, and the allegedly dangerous

condition was known to Doherty and his employer prior to the

accident. The district court held that, because Chevron did not

relinquish control to Manning of the maintenance and repair of the

crane, Chevron owed a duty to Doherty to repair it; but concluded

that, nevertheless, Chevron was entitled to summary judgment

because, pre-accident, both Doherty and Manning had knowledge of

the leaking fluid prior to the accident.

II.

We review a summary judgment de novo, applying the standard

applied by the district court. E.g., Forsyth v. Barr,

(5th Cir.), cert. denied,

(1994). Such

judgment is proper when the summary judgment record, viewed in the

light most favorable to the non-movant, establishes that “there is

no genuine issue as to any material fact and ... the moving party

is entitled to a judgment as a matter of law”. FED. R. CIV. P.

56(c); Forsyth,

.

Mississippi law governing the liability of a premises owner to

the employee of an independent contractor is addressed in Hill v.

International Paper Co.,

(5th Cir. 1997). It holds

that, in the light of Jones v. James Reeves Contractors, Inc.,

, reh’g denied,

(Miss. 1997), “if an

independent contractor has actual or constructive knowledge of a

dangerous condition (via warning, contractual provision, etc.), its

employees cannot recover against the premises owner for

negligence”. Hill,

. The district court relied

on Hill in granting summary judgment for Chevron, because, as

noted, it was undisputed that both Doherty and Manning were aware

of the leaking fluid.

Doherty contends that Hill’s holding is based, in part, on the

assumption of risk doctrine, which was “abolished” by the

Mississippi Supreme Court in Donald v. Triple S Well Service, Inc.,

, reh’g denied,

(Miss. 1998),

decided approximately seven months after Hill; and that, therefore,

Hill is not a valid interpretation of Mississippi law.

Donald did not alter the conclusion reached in Hill. Donald

was not a premises liability case; pre-trial, the plaintiff had

3 settled with the premises owner.

. The

plaintiff, an employee of an independent contractor, was seeking to

recover only from another independent contractor for failing to

provide him safe equipment and a safe place to work.

Donald cited Tharp v. Bunge Corp.,

(Miss. 1994),

for the proposition that, “where [the] jury finds any negligence on

the part of a defendant property owner in allowing a dangerous

condition to exist, the ‘open and obvious’ doctrine will not

provide [a] complete defense; rather, the doctrine of comparative

negligence will determine the recovery, if any, to be had by a

negligent plaintiff”. Donald,

. But, Donald did

not cite Jones or Hill, much less purport to overrule Jones. In

Hill, we concluded that Jones “either scaled back or clarified the

rule in Tharp, by carving out an exception for independent

4 contractors”.

.

Unless or until the Mississippi Supreme Court clarifies, or

otherwise alters, its holding in Jones, we are bound by Hill’s

interpretation of it. See St. Paul Fire & Marine Ins. Co. v.

Convalescent Services, Inc.,

, 345 n.10 (5th Cir. 1999)

(“This panel is bound by another panel’s previous interpretation of

state law absent a subsequent state court decision that renders

this Court’s previous decision incorrect.”); Batts v. Tow-Motor

Forklift Co.,

(5th Cir. 1995) (district court “was

bound by our interpretation of state law absent a subsequent state

court decision or statutory amendment that rendered this court’s

prior decision clearly wrong”), cert. denied,

(1996);

Broussard v. Southern Pacific Transportation Co.,

(5th Cir. 1982) (en banc) (internal quotation marks, brackets,

and citation omitted) (“a prior panel decision should be followed

by other panels without regard to any alleged existing confusion in

state law, absent a subsequent state court decision or statutory

amendment which makes this Court’s prior decision clearly wrong”).

Along this same line, we decline to adopt Doherty’s request to

certify the question to the Mississippi Supreme Court.

Because it is undisputed that both Doherty and Manning were

aware of the allegedly dangerous condition, Hill controls.

(Accordingly, we do not address Chevron’s alternate contention

(rejected by the district court) that it is not liable because

Doherty’s injuries arose out of, and were intimately connected to,

the work being done for Chevron by Manning, his employer, pursuant

5 to its contract with Chevron.)

III.

For the foregoing reasons, the judgment is

AFFIRMED.

6