IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
____________________
No. 00-30790 Summary Calendar ____________________
PAUL BOURQUE, Individually and on behalf of Josh Bourque; ROBERTA BOURQUE
Plaintiffs - Appellants v.
OLIN CORP; ET AL
Defendants
OLIN CORP; LYONDELL CHEMICAL WORLDWIDE INC; LYONDELL CHEMICAL CO
Defendants - Appellees
No. 00-31130 Summary Calendar ____________________
PAUL BOURQUE, on behalf of Josh Bourque; ROBERTA BOURQUE
BIO-LABS INC
Defendant - Appellee
_________________________________________________________________
Appeals from the United States District Court for the Western District of Louisiana USDC No. 99-CV-1703 _________________________________________________________________ April 10, 2001
Before KING, Chief Judge, and WEINER and DENNIS, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Plaintiffs-Appellants appeal
from the district court’s grant of summary judgment in favor of
Defendants-Appellees. For the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-Appellee Lyondell Chemical Company (“Lyondell”)
operates a chemical plant on its property in Westlake,
Louisiana.1 At its Westlake facility, Lyondell produces, among
other things, toluene diisocyanate (“TDI”). Phosgene is one of
the components utilized in the production of TDI. Defendant-
Appellee Bio-Labs, Inc. (“Bio-Labs”), a separate and distinct
corporate entity from Lyondell, leases a section of the Westlake
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 Defendant-Appellee Lyondell Chemical Company acquired a portion of the Westlake property, upon which its facility is situated, from Defendant-Appellee Olin Corporation. Originally, in 1996, ARCO Chemical Company (“ARCO”) acquired the production facility from Olin Corporation under an Asset Purchase Agreement. Then, in July 1998, ARCO was acquired by Lyondell Chemical Company, with ARCO becoming a wholly owned subsidiary of Lyondell Chemical Company. ARCO’s name was subsequently changed to Lyondell Chemical Worldwide, Inc., another named Defendant- Appellee herein. In December 1999, Lyondell Chemical Worldwide, Inc. was merged into Lyondell Chemical Company, with Lyondell Chemical Company being the surviving entity.
2 property from Defendant-Appellant Olin Corporation, on which Bio-
Labs operates a chemical plant.
On September 2, 1998, Plaintiff-Appellant Paul Bourque, a
meter technician for Entergy Corporation (“Entergy”), was
installing and checking new electricity meters at Entergy’s
electrical substation, which was located on property adjacent to
that owned by Lyondell. To reach these meters, however, Bourque
was required to sign in at the Lyondell gate, located at the
front of the property, and drive to the back area of the Lyondell
facility.
After finishing his work at the substation, Bourque drove
back to the front gate. Before reaching the gate, however,
Bourque began to experience shortness of breath and a tightness
in his chest. He began having difficulty breathing and was
forced to stop his truck on the side of the road. Paramedics
took him to the hospital, where he was treated for chemical
asthma.
On August 25, 1999, Bourque sued Lyondell Chemical Company,
Lyondell Worldwide, Inc., and Olin Corporation (hereinafter
referred to collectively as the “Lyondell Defendants”) in
Louisiana state court, alleging that he has suffered “severe and
disabling injuries and illnesses,” including permanent lung
damage, as a result of “his exposure to phosgene.” On September
16, 1999, the Lyondell Defendants removed the action to federal
court based on diversity.
3 On January 14, 2000, the Lyondell Defendants moved for
summary judgment on the ground that there was no release of
phosgene from the Lyondell facility on the day in question. On
January 28, 2000, in conjunction with his response to the motion
for summary judgment, Bourque filed a motion for leave to file an
amended complaint, seeking to add Bio-Labs as a defendant and to
include the allegation that a release of “bromine or other
chemicals” caused his injuries. In his memorandum in support of
his motion to continue, Bourque maintained that, on September 2,
1998, Bio-Labs reported a release of bromine from its
tricholoroisocyanurate (“TCCA”) unit. Moreover, Bourque asserted
that he did not learn of the bromine release until December 9,
1999. The district court granted Bourque’s motion to amend his
complaint, adding Bio-Labs as a defendant.2
On April 19, 2000, the district court granted summary
judgment in favor of the Lyondell Defendants, leaving only
Bourque’s claim against Bio-Labs. Then, on June 28, 2000, Bio-
Labs moved for summary judgment, contending that because Bourque
did not bring suit until seventeen months after he was injured,
his claims are prescribed by Louisiana’s twelve-month
prescription statute for delictual actions. See LA. CIV. CODE
2 The court also continued the summary judgment hearing for sixty days to allow the parties time to discover any additional evidence in support of their positions. During this time, Bourque failed to conduct further discovery.
4 ANN. art. 3492 (West 1994). The district court granted summary
judgment in favor of Bio-Labs on August 10, 2000.
Bourque timely appealed each grant of summary judgment, and
this court consolidated the appeals on September 25, 2000.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the
same criteria employed by the district court in the first
instance. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th
Cir. 1994). “Summary judgment is proper only ‘if the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.’” Turner v. Houma
Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 482 (5th Cir.
2000) (quoting FED. R. CIV. P. 56(c)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986).
“Courts of Appeals consider the evidence in the light most
favorable to the nonmovant, yet the nonmovant may not rely on
mere allegations in the pleadings; rather, the nonmovant must
respond to the motion for summary judgment by setting forth
particular facts indicating that there is a genuine issue for
trial.” See Spivey v. Robertson, 197 F.3d 772, 774-75 (5th Cir.
1999) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986)), cert. denied, 120 S. Ct. 2659 (2000); see also
5 Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 383 (5th Cir.
2000) (“If the movant succeeds in making that showing, the
nonmoving party must set forth specific facts showing a genuine
issue for trial and not rest upon the allegations or denials
contained in its pleadings.”), cert. denied, 121 S. Ct. 766
(2001). After the nonmovant has been given an opportunity to
raise a genuine factual issue, if no reasonable juror could find
for the nonmovant, summary judgment will be granted. See FED. R.
CIV. P. 56(c); Celotex Corp., 477 U.S. at 322.
III. THE LYONDELL DEFENDANTS
In ruling on the Lyondell Defendants’ motion for summary
judgment, the district court found that they adduced competent
summary judgment evidence showing that there was no release of
phosgene at the Lyondell facility on September 2, 1998. The
court concluded that, instead, the evidence demonstrated that
there was a bromine release at the adjacent Bio-Labs plant, which
was not owned, managed, or operated by the Lyondell Defendants.
Moreover, the court recognized the Lyondell Defendants’ argument
that the release at Bio-Labs was a “Code I” release, meaning that
it was contained within the relevant Bio-Labs operating unit and
did not spread to adjacent properties, such as Lyondell’s.
Finding that Bourque “failed to submit competent summary judgment
evidence that there was a release at the Lyondell plant or that
any release on an adjoining plant affected [the Lyondell
6 Defendants’] employees,” the court concluded that the Lyondell
Defendants owed no duty to Bourque. Accordingly, the district
court granted summary judgment in favor of the Lyondell
Defendants.
On appeal, Bourque contends that the Lyondell Defendants
owed a duty to him to warn of the “dangerous condition at [the
Lyondell] facility.” Bourque maintains that the Lyondell
Defendants knew of the bromine release at the Bio-Labs facility
and failed to warn him of the danger. Accordingly, Bourque
argues that the district court erred in finding that the Lyondell
Defendants had no duty to warn him of the danger. We disagree.
Louisiana courts3 have adopted a duty/risk analysis for
determining whether a party is liable for negligence. See
Peterson v. Gibraltar Sav. & Loan, 98-1601, p.6 (La. 5/18/99),
733 So. 2d 1198, 1203. Under Louisiana’s duty/risk framework, in
evaluating whether a party is at fault, Louisiana courts
consider:
(1) Was the defendant’s conduct a cause-in-fact of the harm? (2) Was a duty imposed on the defendant by a general rule of law to protect this plaintiff from this type of harm arising in this manner? (3) Was the duty breached?
3 Because our jurisdiction is based upon diversity, we sit as an Erie court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also C.P. Interests, Inc. v. Cal. Pools, Inc., 238 F.3d 690, 694 (5th Cir. 2001).
7 Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 156-57 (5th Cir.
1994).
In Louisiana, the existence of a duty and its scope are
questions of law. See id. at 157; see also Peterson, 98-1601 at
p.7, 733 So. 2d at 1204; Mathieu v. Imperial Toy Corp., 94-0952,
p.5 (La. 11/30/94), 646 So. 2d 318, 322. The general rule is
that “the owner or operator of a facility has the duty of
exercising reasonable care for the safety of persons on his
premises and the duty of not exposing such persons to
unreasonable risks of injury or harm.” Peterson, 98-1601 at p.7,
733 So. 2d at 1204; see also Dupre, 20 F.3d at 157. The question
whether a duty exists depends upon the facts and circumstances of
each case, and the scope of that duty is “limited by the
particular risk, harm, and plaintiff involved.” Dupre, 20 F.3d
at 157.4 Because the scope of the Lyondell Defendants’ duty to
warn was defined by the particular risk of harm caused by a Code
I bromine release, we conclude that the district court did not
4 In 1976, the Louisiana Supreme Court eliminated the common-law classifications of invitee, licensee, and trespasser. Cates v. Beauregard Elec. Coop., Inc., 328 So. 2d 367, 370 (La. 1976). These classifications were replaced by the current duty/risk analysis. See Shelton v. Aetna Cas. & Sur. Co., 334 So. 2d 406, 410 (La. 1976); see also Kramer v. Continental Cas. Co., 92-1131, p.14 (La. App. 3 Cir. 6/22/94), 641 So. 2d 557, 566 (“Thus, in the present case, we do not find it necessary to classify [the plaintiff] as an invitee or licensee, and instead examine the question of legal duty owed in light of the duty/risk formulation.”). As such, which classification best fits Bourque’s purpose for being on Lyondell’s property is irrelevant to this analysis.
8 err in finding that the Lyondell Defendants owed no duty to
Bourque.
In the instant case, the summary judgment evidence reveals
that on September 2, 1998, at 12:23 p.m., employees at the
Lyondell facility were informed that the adjacent Bio-Labs
facility issued a Code I bromine release notice. Five minutes
later, at 12:28 p.m., Bio-Labs issued an “all clear” on the Code
I bromine release. Kathy Kiestler, the Senior Industrial
Hygienist at Lyondell, testified in an affidavit that a “Code I
release” is a “release contained inside the . . . operating
unit.” As such, at the time of the incident, the Lyondell
employees were aware that there was a release of bromine at the
Bio-Labs plant and that it was contained within the TCCA unit
located on Bio-Labs’ property. Accordingly, the Lyondell
Defendants argue that there was no risk of exposure to
individuals within Lyondell’s separate production facility.
After our review of the record, we conclude that Bourque has
created no genuine issue of material fact for trial. Bourque has
adduced no summary judgment evidence to show that a Code I
bromine release notice would have alerted Lyondell to a risk at
the Lyondell facility, nor does Bourque argue in his brief to
this court that the Lyondell Defendants were aware of a possible
risk of exposure to individuals at the Lyondell facility, such as
would have triggered the Lyondell Defendants’ duty to warn.
Therefore, because the scope of the Lyondell Defendants’ duty to
9 warn was limited to the particular risk of a Code I bromine
release at another plant’s facility, see Dupre, 20 F.3d at 157,
and because there is no dispute that a Code I release means that
such release is contained within that facility, we find that the
summary judgment evidence shows that the Lyondell Defendants were
not aware of a risk on their property. As such, the district
court did not err in finding that the Lyondell Defendants had no
duty to warn Bourque of the Code I bromine release at a separate
and distinct facility. Accordingly, we conclude that the
district court’s grant of summary judgment in favor of the
Lyondell Defendants was proper.
IV. BIO-LABS
Bourque was injured on September 2, 1998. However, Bourque
did not bring suit against Bio-Labs until January 28, 2000,
almost seventeen months later. Finding that Bourque’s claims
against Bio-Labs were prescribed by Louisiana’s twelve-month
prescription statute for delictual actions, the district court
granted summary judgment in Bio-Labs’ favor. In his response to
Bio-Labs’ motion for summary judgment, Bourque argued that he
filed a workers’ compensation claim against his employer,
Entergy, within the twelve-month prescription period, thereby
tolling prescription.
The district court rejected this argument, reasoning that
Bourque presented no competent evidence that he filed the
10 workers’ compensation claim, that there was no evidence of
solidary liability5 between Entergy and Bio-Labs, and that
Bourque’s voluntary dismissal of his workers’ compensation suit
vitiated any interruption of prescription that might have
occurred.
On appeal, Bourque contends that he did file a workers’
compensation claim against Entergy, which he voluntarily
dismissed on June 7, 1999, and that Entergy was solidarily liable
with Bio-Labs. Bourque asserts that, accordingly, he had one
year from the date of voluntary dismissal to file suit against
Bio-Labs. Because he filed suit against Bio-Labs within that
time, Bourque argues that his claims against Bio-Labs are not
prescribed. Therefore, if Bourque had filed a suit in which
Entergy made a general appearance before Bourque’s voluntary
dismissal, that suit could toll the prescription period.
Under Louisiana law, “[d]elictual actions . . . are subject
to a liberative prescriptive period of one year which begins to
run from the day injury or damage is sustained.” Williams v.
5 A “solidary obligation” is “one where the obligors ‘are obliged to the same thing, so that each may be compelled for the whole, and when payment by one exonerates the other toward the creditor.’” Williams v. Sewerage & Water Bd., 611 So. 2d 1383, 1387 (La. 1993) (quoting Hoefly v. Gov’t Employees Ins. Co., 418 So. 2d 575, 576 (La. 1982); Lucero v. Burney Gear Co., 33,585, pp.2-3 (La. App. 2 Cir. 6/21/00), 764 So. 2d 181, 182-83 (finding, on the facts of the case, solidary liability of employer and third-party tortfeasor). “Suit against one solidary obligor interrupts prescription as to other solidary obligors.” Younger v. Marshall Indus., Inc., 618 So. 2d 866, 868 (La. 1993).
11 Sewerage & Water Bd., 611 So. 2d 1383, 1386 (La. 1993) (citing
LA. CIV. CODE ANN. art. 3492). If, on the face of the complaint,
it appears that prescription has run, the burden is on the
plaintiff to demonstrate an interruption or suspension of the
prescriptive period. See Younger v, Marshall Indus., Inc., 618
So. 2d 866, 869 (La. 1993); Lima v. Schmidt, 595 So. 2d 624, 628
(La. 1992).
Louisiana law provides that “a suit timely filed against the
employer for worker’s compensation interrupt[s] prescription as
to the subsequent claim against the third party tort-feasor for
damages.”6 Williams, 611 So. 2d at 1390. Once such a suit is
filed, interruption continues so long as the suit is pending.
See LA. CIV. CODE ANN. art. 3463 (West supp. 2001).
Relying upon a recently amended Louisiana statute, the
district court concluded that because Bourque voluntarily
dismissed his workers’ compensation claim against Entergy, there
was no interruption of the prescriptive period. See LA. CIV. CODE
ANN. art. 3463 (West supp. 2001) (“Interruption is considered
never to have occurred if the plaintiff . . . voluntarily
dismisses the action at any time either before the defendant has
made any appearance of record or thereafter[.]”). Bourque
contends that the district court erred by relying upon the
amended statute because it was not in effect when he filed suit
6 See supra note 5.
12 against Entergy. Bourque asserts that, instead, the prior
statute and its interpretive case law should apply to the instant
case. We need not decide which version of the statute applies to
Bourque’s claims, because even assuming arguendo that Bourque is
correct, his claim still fails under the earlier version of the
statute.
Before the 1999 amendment of Article 3643, it read:
“Interruption is considered never to have occurred if the
plaintiff . . . voluntarily dismisses . . . the suit[.]” LA.
CIV. CODE ANN. art. 3463 (West 1994). During the time this
version of Article 3463 was in effect, Louisiana courts
interpreted the statute to apply only to those voluntary
dismissals occurring prior to a general appearance by the
defendant. See Roger v. Estate of Moulton, 513 So. 2d 1126, 1133
(La. 1987); Herbert v. Cournoyer Oldsmobile-Cadillac GMC, Inc.,
419 So. 2d 878, 881 (La. 1982); Jones v. Dep’t of Transp. & Dev.,
94 1908, pp.3-4 (La. App. 1 Cir. 6/30/95), 659 So. 2d 818, 820.
In other words, if the plaintiff voluntarily dismisses the suit
before the defendant has made a general appearance, the
prescription period is not interrupted, and the plaintiff’s
claims will be prescribed within the twelve-month period.
Bourque alleges that Entergy made a general appearance in
the workers’ compensation lawsuit before it was voluntarily
dismissed. In his response to Bio-Labs’ motion for summary
judgment, Bourque produced evidence that Entergy was served with
13 notice of a mediation hearing in connection with the workers’
compensation suit and alleges that Entergy made a general
appearance in connection with the mediation hearing. Bourque
fails, however, to provide this court with any evidentiary basis
to support this assertion. While he did produce the mediation
notice, it does not indicate whether Entergy actually attended
the mediation hearing. Indeed, the director of the Louisiana
Office of Workers’ Compensation is required under Louisiana law
to set all workers’ compensation matters for mediation within
fifteen days of a claim’s filing. See LA. REV. STAT. ANN.
§ 23:1310.3(B)(1) (West 1998). Moreover, there is no indication
in the record regarding whether the mediation conference actually
took place — evidence that we conclude would be readily available
to Bourque. See id. (“Within five days following the conference
the workers’ compensation mediator shall issue a report stating
the results of the conference which shall be mailed to the
parties and the director.”).
Bourque may not rely on the “mere allegation” that Entergy
made a general appearance in the workers’ compensation suit to
toll the prescription period and thus defeat a motion for summary
judgment. See Spivey v. Robertson, 197 F.3d 772, 774-75 (5th
Cir. 1999). Bourque failed to present summary judgment evidence
to demonstrate a genuine issue of fact regarding whether Entergy
made a general appearance before he voluntarily dismissed his
workers’ compensation suit. Accordingly, we find that the
14 prescription period was not tolled, see Doyle v. Mitsubishi Motor
Sales of Am., Inc., 99-0460, p.7 (La. App. 1 Cir. 3/31/00), 764
So. 2d 1041, 1045 (“The interruption of prescription resulting
from the filing of the suit is lost when the plaintiff
voluntarily dismisses the suit prior to trial.”), and the
district court did not err in finding that Bourque’s claims
against Bio-Labs were prescribed.7
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgments of the
district court, granting summary judgment in favor of all
7 Because we find that Bourque failed to raise a genuine issue of fact regarding whether Entergy made a general appearance in the workers’ compensation suit, it is unnecessary to determine whether Entergy and Bio-Labs were solidarily liable.