STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2023 CA 0707
H1 CHRISTOPHER MARTIN
VERSUS
ISC CONSTRUCTORS, L. L.C. AND CINTAS CORPORATION
Judgment Rendered: MAR 13 2024
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 669821
The Honorable Richard " Chip" Moore, III, Judge Presiding
Andy Dupre Counsel for Plaintiff/Appellant, llijana Todorovic Christopher Martin New Orleans, Louisiana
J. Kyle Findley Adam D. Lewis Roland T. Christensen Kason R. Kimberly Kelsey Stallings Trevor Courtney Caj Boatright Kurt Arnold Houston, Texas
A.M. " Tony" Clayton Michael Fruge Richard J. Ward, III
ge - A ` cam uk Michael C. Hendry Port Allen, Louisiana
Quentin F. Urquhart, Jr. Counsel for Defendant/Appellee, Gretchen F. Richards Cintas Corporation No. 2 Haley Zhu -Butler Victor M. Dantin New Orleans, Louisiana
Matthew W. Bailey Hillary B. Anderson Shannon M. Jaeckel Baton Rouge, Louisiana
BEFORE: McCLENDON, HESTER, AND MILLER, JJ.
2 MILLER, J.
Christopher Martin (" Martin") appeals the trial court' s February 28, 2023
judgment, which granted the motion for summary judgment filed by Cintas
Corporation (" Cintas") and dismissed with prejudice Martin' s claims against it. For
the following reasons, we reverse.
FACTS AND PROCEDURAL BACKGROUND
On February 13, 2018, Martin worked for Dow Chemical Company
Dow") as a process operator in Deer Park, Texas. On that date, Martin was
working near a tank when it suddenly erupted and caused the area where Martin
was standing to be filled with hot chemicals. Martin suffered second and third
degree burns on his feet and ankles. When the incident took place, Martin was
wearing shoes he purchased from Cintas, pursuant to a contract between Dow and
Cintas wherein Cintas would provide safety shoes to Dow' s employees. The shoes
were made of leather and had a mesh tongue.
On May 30, 2018, Martin filed a petition for damages against ISC
Constructors, L.L.C.' (" ISC") and Cintas. Martin contended he suffered severe and
permanent injuries as a result of the negligence of ISC and Cintas. Specifically,
Martin alleged he was injured because Cintas " negligently and grossly negligently"
failed to provide proper safety equipment, failed to comply with applicable rules
and regulations, failed to provide adequate protective gear, failed to provide a safe
uniform for Martin' s work environment, failed to attach adequate warnings to the
shoes, failed to adequately supervise its employees, failed to provide adequate
training to its employees, failed to adequately warn Martin of the dangers of the
shoes, and other acts deemed negligent and grossly negligent. Cintas filed its
answer on February 1, 2019, and ISC filed its answer on February 7, 2020. Martin
Martin alleged the valves and meters located at or near the tank were inspected annually by ISC.
3 filed a motion for leave to amend his petition, which was set for a hearing on June
20, 2022. However, the parties agreed to pass on the hearing.
On December 16, 2022, Cintas filed a motion for summary judgment. Cintas
alleged Martin could not meet his burden of proof against Cintas because he could
not show that Cintas owed any duty to provide shoes that protected against
exposure to hazardous chemicals or any duty to ensure Martin was wearing rubber
boots' at the time of the accident. Cintas further contended there were no genuine
issues of material fact, and Cintas was entitled to judgment as a matter of law. In
support of its motion for summary judgment, Cintas filed the 2013 Dow
Commercial Agreement (" 2013 Agreement"); the deposition of Priscilla Martin;
the deposition of Frank Burg; the HHub Safety Shoe Policy; the deposition of
Tony Raven; the deposition of Edward Sebesta; the deposition of Cintas through
its corporate representative, David Starr; the deposition of Martin; Amendment # 2
to the Dow Chemical Company Commercial Agreement MA -2013- 00207
Amendment # 2"); Amendment 93 to the Dow Chemical Company Commercial
Agreement MA -2013- 00207 (" Amendment # 3"); Dow Confidential Document
labeled TDCC- MARTIN-000012 and TDCC- MARTIN-000013; the original
petition for damages; the jury order; and the request for notice.
Martin filed his opposition to Cintas' s motion for summary judgment on
January 31, 2023. E In support of his opposition, Martin filed his deposition; the
Z Martin' s petition for damages states he was " wearing rubber boots" provided to him by Cintas. Cintas then filed a motion for summary judgment, asserting Martin could not show that Cintas owed any duty to ensure Martin was " wearing rubber boots" at the time of his accident. In Martin' s appellant brief with this court, he contends he " never claimed that Cintas had a duty to provide rubber shoes" and Cintas was required to provide footwear meeting all specifications
that were both acknowledged by Cintas as applicable to the footwear under the contract and supplied to Cintas by Dow. 3 Martin' s opposition was timely filed pursuant to La. C. C. P. 966, but it was not timely served. Cintas objected to the late -served opposition. However, the trial court considered it and allowed Martin to argue at the hearing. In its appellee brief, Cintas again contends that Martin' s opposition should not be considered because it was not timely served. Since we have concluded that Cintas' s motion for summary judgment has not been properly supported and the burden does not shift to Martin to produced factual support sufficient to establish he will likely be able to satisfy his burden of proof at trial, the issue of Martin' s late -served opposition is moot.
4 deposition of Cameron Pomeroy; the Dow post -incident root cause investigation
report; the deposition of Edward Sebesta; the deposition of Priscilla Martin; the
HHub Safety Shoe Policy; the deposition of Cintas through its corporate
representative, David Starr; email correspondence between David Starr and
Edward Sebesta; the deposition of Mac Moser; the deposition of Andrew
Davidson; the 2013 Agreement; the deposition of Dr. Zal Phiroz; the affidavit and
expert report of Frank Burg; the deposition of Frank Burg; and the deposition of
Tony Raven.
Cintas filed its reply memorandum on February 8, 2023. Cintas argued
Martin' s opposition was not timely under La. C. C.P. art. 966( B)( 2); Martin' s
opposition did not comply with Louisiana District Court Rule 9. 10; the unsworn
and unverified report of Dr. Zal Phiroz was insufficient under La. C. C. P. art. 967;
and Martin failed to show Cintas owed him any legal duty.
A hearing was held on February 13, 2023. The trial court considered all
memoranda and reply memoranda in support of and in opposition to the motion,
along with all documentary evidence submitted in support of and in opposition to
the motion and all argument of counsel. Thereafter, the trial court granted Cintas' s
motion for summary judgment and dismissed Martin' s claims against Cintas, with
prejudice. A judgment to that effect was signed on February 28, 2023. Martin
appealed.'
4 In his " Motion for Devolutive Appeal," Martin seeks to appeal the judgments signed on February 28, 2023 and March 13, 2023. Both judgments arise out of the same motion for summary judgment filed by Cintas. The judgment dated February 28, 2023, provides that the motion for summary judgment filed by Cintas is granted and Martin' s claims against Cintas are dismissed, with prejudice. The judgment further provides that each party is to bear their own costs. On the other hand, the judgment dated March 13, 2023, states that Cintas' s motion for summary judgment is granted. An amendment to a final judgment which adds to, subtracts from, or in any way affects the substance of the judgment, is considered a substantive amendment, and is generally prohibited under La. C. C. P. art. 1951. Locke v. Madcon Corporation, 2021- 0382 La. App. Pt Cir. 12130121), 340 So. 3d 946, 949. When a trial court substantively amends a judgment without adhering to the proper procedure, the amended judgment is an absolute nullity. When this court notices such an absolute nullity, we must vacate on our own motion. Id. Louisiana jurisprudence further provides that when a trial court signs a judgment and then signs another, the second judgment is an absolute nullity and without legal effect. Mack v. WileV,
5 Martin contends the trial court erred in granting summary judgment due to
the existence of genuine factual issues. Specifically, Martin alleges genuine factual
issues existed as to whether ( 1) Cintas had a duty to provide safety footwear that
complied with Dow' s policies and requirements; ( 2) Cintas knew of Dow' s policy
that all safety footwear provided by Cintas be fully made of leather; and ( 3) Cintas
had a duty to inquire about Dow' s policies and requirements for safety footwear even if Dow did not provide it therewith.
SUMMARY JUDGMENT
An appellate court reviews the grant or denial of summary judgment' de
novo under the same criteria governing the trial court' s determination of whether
summary judgment is appropriate. MN Resources LLC v. Louisiana Hardwood
Products LLC, 2016- 0758 ( La. App. 1St Cir. 7126117), 225 So. 3d 1104, 1109, writ
denied, 2017- 1748 ( La. 1215117), 231 So. 3d 624. Because this court reviews
summary judgments de novo, we afford no deference to the trial court' s underlying
reasoning for its judgment. John River Cartage, Inc. v. Louisiana Generating, LLC,
2020- 0162 (La. App. 1St Cir. 314120), 300 So. 3d 437, 453 n. 12. On de novo review,
we also afford no deference to the legal standard or analysis applied by the trial
court. Tucker v. Chatfield, 2023- 0343 ( La. App. I" Cir. 1119123), --- So. 3d ----, ----
2023 WL 7410052, * 4.
After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and that the mover is entitled
2007- 2344 ( La. App. 1st Cir. 512108), 991 So, 2d 479, 486, writ denied, 2008- 1181 ( La. 9119108), 992 So. 2d 932. In this case, the March 13, 2023 judgment signed by the trial court subtracted from the substance of the February 28, 2023 judgment, thus, it is an absolute nullity. See La. C. C. P. art. 1951. Therefore, the March 13, 2023 judgment is vacated. s Louisiana Code of Civil Procedure article 966 was amended by La. Acts 2023, No. 317, 1; La. Acts 2023, No. 368, § 1, effective August 1, 2023. This court has determined that the amendments are substantive and cannot be applied retroactively. See La. C.C. P. art. 966, Comments -- 2023, Comment ( f); Ricketson v. McKenzie, 2023- 0314 ( La. App. 1" Cir. 1014123), So. 3d _, , 2023 WL 7037495, * 4. Accordingly, in the instant matter, we apply the version of La. C. C. P. art. 966 in effect at the time the motion for summary judgment was submitted and heard.
6 to judgment as a matter of law. La. C. C. P. art. 966( A)( 3). The summary judgment
mover maintains the burden of proof. La. C. C. P. art. 966( D)( 1). Nevertheless, if
the mover will not bear the burden of proof at trial on the issue before the court on
the motion, his burden is satisfied by pointing out an absence of factual support for
one or more elements essential to the adverse party' s claim, action, or defense.
Thereafter, the adverse party must produce factual support sufficient to establish
the existence of a genuine issue of material fact or that the mover is not entitled to
judgment as a matter of law. If the adverse party fails to meet this burden, the
mover is entitled to judgment as a matter of law. Id.
DISCUSSION
Louisiana courts have adopted a duty -risk analysis in determining whether
liability for negligence exists under the facts of a particular case. Lafayette Steel
Erector, Inc. v. G. Kendrick, LLC, 2022- 0895 ( La. App. 1 st Cir. 8/ 30/23), 375 So.
3d 507, 514. For liability to attach under a duty -risk analysis, a plaintiff must prove
five separate elements: ( 1) the defendant had a duty to conform his conduct to a
specific standard ( the duty element); ( 2) the defendant' s conduct failed to conform
to the appropriate standard ( the breach element); ( 3) the defendant' s substandard
conduct was a cause -in -fact of the plaintiff' s injuries ( the cause -in -fact element);
4) the defendant' s substandard conduct was a legal cause of the plaintiff' s injuries
the scope of duty element); and ( 5) proof of actual damages ( the damages
element). Farrell v. Circle K Stores Inc., 2022- 00849 ( La. 3/ 17/ 23), 359 So. 3d
467, 473. A negative answer to any of the inquiries of the duty -risk analysis results
in a determination of no liability. Landers v. USIC Locating Servs., Inc., 2020-
0890 ( La. App. 1St Cir. 4/ 26/ 21), 324 So. 3d 1070, 1073- 1074.
At trial, Martin would bear the burden of proving the elements of his claims
against Cintas. Thus, for Cintas to prevail on summary judgment, it was required to
point out to the court the absence of factual support for any of the elements of
7 Martin' s cause of action. See La. C. C. P. art. 966( D)( 1). Cintas' s motion for
summary judgment focuses on the duty element of the duty/risk analysis.
The existence of a duty is a question of law. Farrell, 359 So. 3d at 473.
Specific duties can arise from codal, statutory, administrative and local laws, as
well as private contracts and custom. Doe v. McKesson, 2021- 00929 ( La. 3125122),
339 So. 3d 524, 537 n. 1 ( Weimer, GJ., concurring); Favret v. Favret, 2022- 0820
La. App. 4t'' Cir. 7131123), 371 So. 3d 511, 521- 522. When no factual dispute
exists and no credibility determinations are required, the legal question of the
existence of a duty is appropriately addressed by summary judgment. Listach v.
West Baton Rouge Parish School Board, 2021- 0079 ( La. App. I" Cir. 619121), 328
So. 3d 450, 456, writ denied, 2021- 00982 ( La. 1113121), 326 So. 3d 887.
In this case, both Cintas and Martin agree the contract between Cintas and
Dow is the source of the duty owed. Generally, legal agreements have the effect of
law upon the parties, and, as they bind themselves, they shall be held to a full
performance of the obligations flowing therefrom. La. C. C. art. 1983; Waterworks
District No. 1 of Desoto Parish v. Louisiana Department of Public Safety &
Corrections, 2016- 0744 ( La. App. 1st Cir. 2117117), 214 So. 3d 1, 5, writ denied,
2017- 0470 ( La. 5112117), 219 So. 3d 1103, While Martin is not a party to the
agreement between Cintas and Dow, Dow entered into the contract for the benefit
of any " Eligible Recipient." The 2013 Agreement provides, in pertinent part, an
Eligible Recipient" is an entity that is specifically designated by Dow in writing
to Cintas to be able to purchase products under the 2013 Agreement or otherwise
be permitted to receive any and all benefits under the 2013 Agreement and which
meets the " Eligible Recipient" definition. Under the agreement, " Eligible
6 When a party has been damaged by the conduct of another arising out of a contractual relationship, the party may have two remedies, a suit in contract or a suit in tort, and he may elect to recover his damages under either of the two actions. Wilson v. Two SD, LLC, 2015- 0959 ( La. App. I" Or. 12123115), 186 So. 3d 103, 116. Where a cause of action arises from breach of a promise set forth in contract, the action is " ex contractu," but where it arises from a breach of duty growing out of contract, it is " ex delicto." Id. at 117.
1.3 Recipient," in part, means Dow or any entity that is or becomes an affiliate of
Dow. Thus, under the 2013 Agreement, Martin, as an employee of Dow, was able
to purchase shoes from the Cintas shoe truck. The shoes he purchased from the
Cintas shoe truck are the shoes that he was wearing at the time of the accident.
While Martin was not a party to the 2013 Agreement, a contracting party may
stipulate a benefit for a third person called a third party beneficiary. See La. C. C.
art. 1978.
Cintas argues Martin cannot show that Cintas owed any duty to ensure
Martin was wearing rubber boots at the time of his accident. Cintas asserts the
2013 Agreement entered into by the parties indicated that the safety shoes must
comply with ASTM F24137 and nothing in the 2013 Agreement specified that the
shoes must provide protection against exposure to hazardous chemicals or that
Cintas was required to perform a needs assessment or risk analysis in connection
with the shoes offered. Cintas further argues Martin cannot show that Cintas owed
any duty to Martin under Amendment # 2 and Amendment # 3.
The 2013 Agreement between Dow and Cintas was effective from March 1,
2013, to December 31, 2016. The 2013 Agreement provides, in pertinent part:
The Dow Chemical Company (" DOW" or ` BUYER"), a Delaware corporation . . . and CINTAS CORPORATION (" SELLER"), a
Washington corporation ... for valuable consideration the receipt and
sufficiency of which is mutually acknowledged, agree as of March 1, 2013 to buy and sell, respectively, the Products and Services defined herein, subject to the terms and conditions set forth below.
DEFINITIONS AND GEOGRAPHIC COVERAGE
7 ASTM stands for the American Society for Testing and Materials. ASTM F2413 is the standard specification for performance requirements for protective ( safety) toe cap footwear. This specification covers the minimum design, performance, testing, and classification requirements, and prescribes fit, function, and performance criteria for footwear designed to be wom to provide protection against a variety of workplace hazards that can potentially result in injury. Standard Specification for Performance Requirements for Protective ( Safety) Toe Cap Footwear, ASTM INTERNATIONAL, https:// www.astm.org/ f2413- 18. html ( last modified Sept. 25, 2018).
E Seller agrees that an Eligible Recipient may purchase products and either directly or indirectly through services under this Agreement, The Dow Chemical Company as its service provider.
PRODUCTS
DOW and other BUYERS may obtain any product listed in Exhibit B, attached to and made part of this Agreement, which is manufactured or distributed, sold or resold by SELLER (" Products").
Each Product supplied under this Agreement shall meet all pertinent specifications ( 1) which have been supplied to SELLER by DOW, or 2) which SELLER acknowledges apply to the product under this Agreement. Failure of a Product to meet pertinent specifications may result in a decision by DOW to terminate this Agreement. Mwa
QUALITY ASSURANCE WARRANTY & SERVICE
SELLER represents that it has and shall supply to DOW and Eligible Recipients qualified and experienced personnel (" Seller Employees") to perform Services. . . In addition, SELLER guarantees that all Services performed pursuant to this Agreement shall be performed in a professional and workmanlike manner in accordance with the highest industry standards.
TECHNICAL ASSISTANCE
SELLER agrees to provide limited technical assistance to BUYER at no charge to help BUYER complete the safety evaluation for certain applications, which may use SELLER' s products. SELLER shall also provide recommendations to BUYER regarding which Products provide the lowest long term cost of ownership in specific
applications.
EMM3
SITE ACCESS REQUIREMENTS -BUYER SITES
2. . . . SELLER assumes responsibility for any losses, claims,
expenses, damages, liabilities and actions whatsoever brought or made against it, by reason of any matter or thing arising out of or in any way attributable to this Agreement, to the extent caused by SELLER' s acts
10 of negligence or omissions, or the acts of neglect or omissions of those for whom SELLER is responsible at law.
ENTIRE AGREEMENT; SEVERABILITY
This agreement consists of this document and all Exhibits and attachments which this document by its terms make a part hereof This Agreement represents the complete agreement between the parties regarding the subject matter set forth in this Agreement, and no prior agreement, change, alteration, or other understanding or any terms stated in any release, order, order acknowledgment, invoice, other
documentation, transmission via Internet Exchanges, or by any conditions, usage of trade, of dealing course or performance,
understanding or agreement, oral or written, purporting in any way to modify the terms and conditions to this Agreement or its attachments shall be binding upon either party unless mutually agreed upon in writing by the respective duly -authorized representative of both parties and expressly stating an intention to amend or modify a particular provision ...
The 2013 Agreement contains four attachments, Exhibit A, Exhibit B,
Exhibit C, and Exhibit D. Exhibit A contains a list of locations where Cintas will
provide services under the contract. Deer Park, Texas is listed as a location of
service. Further, Exhibit A provides that the list of locations may be updated
without a formal amendment to the 2013 Agreement. Exhibit B is the pricing
information. Exhibit B provides, in pertinent part:
PRICE LIST
Attached is the Price List ... for all products and services currently sold by SELLER to BUYER. Any new line items to be added to this Price List require written approval by the DOW Agreement Manager prior to acceptance of any order by any DOW or Eligible Recipient site....
Exhibit D provides, in pertinent part:
13.This Order is expressly limited to the terms and conditions contained in the provisions of this Order. Any additional, conflicting, or different terms or conditions set forth in any invoice, in any acknowledgment of this Order, or in any document other than this Order as issued by BUYER, shall have no effect.
The 2013 Agreement was extended on January 1, 2017, through Amendment
2. Then, on July 1, 2019, the 2013 Agreement was extended again through
11 Amendment # 3 until January 2, 2019. There is an attachment to Amendment # 3
titled " North America — Safety Shoe Billing Rates." This attachment contained the
Puma Safety Shoe Model 642755 (" Puma Shoes")
The Puma Shoes that Cintas sold to Martin were a product made part of the
agreement between Cintas and Dow. Since the Puma Shoes were supplied under
the 2013 Agreement and Amendment 43, the shoes were required to meet all
pertinent specifications that were supplied to Cintas by Dow and all pertinent
specifications that Cintas acknowledged applied to the product under the
agreement. However, it is not clear what specifications are meant by " all pertinent
specifications." Thus, it is necessary to look outside of the agreement between the
parties to determine what pertinent specifications were supplied to Cintas by Dow.
Priscilla Martin is a sourcing manager at Dow. In her role as a sourcing
manager, she procures contracts with different companies. She indicated that she
likely participated in the process of drafting the 2013 Agreement. Specifically,
Priscilla stated that there would have been a request for proposal process where
things like required specifications, ASTM language, metatarsal type language, all
of that would have been provided" as part of the requirement for safety shoes.
However, she could not confirm what exact specifications were provided. Priscilla
stated that all of the shoes in Exhibit B met the basic ASTM standard.
The HHub Safety Shoe Policy is an internal safety shoe policy at Dow. The
document contains information about Dow' s safety shoe policy and requires all
Dow employees who may enter an industrial environment to wear safety shoes.
Safety shoes" are defined as leather footwear having approved toe protection. The
policy further provides that minimum designations on safety shoes shall contain
ASTM F2413- 05, 175/ C75 on the label and that it is important for the wearer to
understand the classifications and requirements related to the hazards of the job.
While the HHub Safety Shoe Policy contains pertinent specifications for Dow' s
12 shoe requirements, it is not clear whether this document was made a part of the
2013 Agreement, Amendment 42, or Amendment # 3. Further, the HHub Safety
Shoe Policy is not signed by Cintas, and there is no evidence within the document
that Cintas agreed to the terms and conditions in the document.
Dr. Frank Burg is an expert witness retained by Martin. Dr. Burg opined that
Dow " had every reason to rely on [ Cintas] as an agent responsible for providing
the proper personal protective equipment." He further stated that the Dow
specifications for safety shoes are that the shoes should meet the ASTM criteria for
safety shoes and should be all leather. However, Dr. Burg could not pinpoint how
he learned that those were the specifications. He also stated that Cintas should have
been responsible for deciding if Martin should have worn rubber boots when he
was in a certain area. Dr. Burg agreed that Cintas has a duty to know exactly which
risks each employee may encounter and individually tell each employee what
protective equipment to wear. He indicated that that duty would fall under
professional responsibility rather than OSHA. Dr. Burg stated that Cintas should
have done more than just rely on the information provided by Dow, and he
disagreed with the proposition that Cintas was simply a shoe vendor. Additionally,
Dr. Burg stated that the OSHA multi-employer worksite policy would impose an
obligation on a vendor of personal protective equipment (" PPE") to perform a
hazard analysis for the employees to whom the PPE is sold.
The deposition of Tony Raven was attached to Cintas' s motion for summary
judgment. At the time of Martin' s accident, Raven worked at Dow was an
Environmental, Health, and Safety Senior Technologist. Raven' s job was to start
an investigation process if someone was hurt or exposed on the job. He indicated
that there was a PPE grid for each unit that everyone who worked in the unit must
adhere to. Raven had little knowledge of the 2013 Agreement and indicated that he
was not consulted when the listing of shoes was put together. Additionally, Raven
13 explained that the Dow standard that describes all PPE is located on the Dow
intranet.
In his deposition, Edward Sebesta stated he has been a Contract
Administrator for the Houston Hub for the past eight years, and he has worked at
Dow for a total of forty-two years. He indicated he was not involved in the
negotiation of the 2013 Agreement, Amendment # 2, or Amendment # 3. In
administering the contract for the Houston Hub, Sebesta' s duties included making
sure that the Cintas shoe truck arrived on time at the designated locations, but he
did not play any role in the selection of shoes that were offered. While he agreed
that Dow expected Cintas to provide footwear that would abide by all the policies
that Dow had, he made it clear that he did not have knowledge of the pertinent
specifications required under the contract.
David Starr appeared as the corporate representative for Cintas. Starr
indicated Cintas is primarily known as a uniform rental company, providing
uniforms for employees, uniform programs, and a range of products and services
for businesses. He further stated that Cintas provides safety footwear that is in
compliance with ASTM F2413. Starr indicated he had no involvement with the
development of the 2013 Agreement. However, Starr stated he was responsible for
administering the contract because it was within his geographical area. According
to Starr, Cintas worked with Dow sites to develop the list of shoe models that
would be carried on the truck. Starr was involved in making sure the Cintas shoe
truck was stocked with the shoe models that Dow chose based on the product and
pricing schedule. Starr stated that the shoes that are on the Cintas shoe truck were
decided by Dow and Dow' s employees.
Starr further indicated it was not Cintas' s job to determine the type of safety
footwear a Dow employee needed. The Cintas truck workers received training to
understand ASTM F2413 and the definitions of the subcategories within that
14 standard. Dow asked for safety footwear that complied with ASTM F2413, so that
was what Cintas provided. Once the customer explained their needs to Cintas,
Cintas would put together a product and pricing schedule for shoe models that
comply with the requirements. Cintas then relied on the manufacturers of the safety
footwear to provide a product that met or exceeded ASTM F2413. Dow decided
which shoes from the list would be included on the truck. He indicated that Cintas
does not have knowledge of potential hazards that go on inside of a facility other
than what the customer specifically tells them. Starr stated that he first saw the
HHub Safety Shoe Policy after the incident and no one at Cintas saw the HHub
Safety Shoe Policy before the incident. All of the shoes that Cintas was contracted
to provide to Dow had to meet the ASTM standard.
Last, the deposition of Martin is attached. Martin indicated the only
requirement he knew of for shoes was that they had to be steel toe. Martin
specified if he was going to change a strainer or drain a tank or vessel, he would
put on rubber boots and PPE because they were dealing with acid. He would use
the rubber boots " maybe once a year." Martin stated there was a PPE grid chart on
the wall that showed which PPE was needed for certain tasks. The PPE grid
applied to Dow employees also. He said he was required to wear " block PPE,"
which means safety shoes. Martin explained that, at the time of the accident, he
was working as a process operator; the shoes he purchased on November 4, 2016,
were the shoes that were involved in the accident; the first time he saw the HHub
Safety Shoe Policy was after the accident; and he worked in the oxidation unit.
After reviewing the evidence submitted by Cintas in support of its motion
for summary judgment, we find Cintas failed to meet its initial burden of showing
an absence of factual support for the duty element of Martin' s claim. Whether
Cintas had a duty in this case cannot be determined on summary judgment due to
the factual dispute regarding what " pertinent specifications" were supplied by Dow
15 to Cintas. Both Martin and Cintas agree that the 2013 Agreement required the
ASTM F2413 standard to be met. However, Cintas was unable to sufficiently show
an absence of factual support regarding the duty element because disputed
evidence was submitted regarding which pertinent specifications were supplied to
Cintas by Dow. Specifically, Priscilla Martin stated there would have been a
request for proposal process where things like required specifications and ASTM
language would have been provided to Cintas as part of the requirement for safety
shoes. Further, Dr. Burg indicated the specifications for safety shoes were that the
shoes should meet the ASTM standard and should be all leather and that Cintas
was responsible for providing proper PPE and deciding what employees should
wear in particular areas.
Since the motion for summary judgment has not been properly supported by
Cintas, and Cintas has not shown the motion for summary judgment should be
granted, the burden does not shift to Martin to produce factual support sufficient to
establish he will be able to satisfy his burden of proof at trial. Accordingly, we find
the trial court erred in granting the motion for summary judgment.
CONCLUSION
For the above and foregoing reasons, the trial court' s February 28, 2023
judgment granting Cintas Corporation' s motion summary judgment and dismissing Christopher Martin' s claims against it, without prejudice, is reversed. All costs of
this appeal are assessed to Cintas Corporation.
REVERSED.