EMANUEL BAHAM * NO. 2022-CA-0551
VERSUS * COURT OF APPEAL FISK ELECTRIC COMPANY, * REGIONAL TRANSIT FOURTH CIRCUIT AUTHORITY, ALL STAR * ELECTRIC, INC. AND THE STATE OF LOUISIANA CITY OF NEW ORLEANS *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-05377, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown)
BELSOME, J., DISSENTS AND ASSIGNS REASONS
Patrick G. Kehoe, Jr. Rebecca Kehoe Thompson ATTORNEY AT LAW 3524 Canal Street New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANT
Richard Todd Musgrave Theresa Anderson Sutherland Samuel C. Furman MUSGRAVE, MCLACHLAN & PENN, L.L.C. 1555 Poydras Street Suite 2100 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED MARCH 22, 2023 SCJ PAB
Plaintiff, Emanuel Baham appeals the May 31, 2022 judgment granting
defendant, Malone Electrical Services, Inc.’s (“Malone Electrical”) motion for
summary judgment and dismissing Mr. Baham’s claims against Malone Electrical
with prejudice. For the following reasons, the trial court’s judgment is affirmed.
FACTS AND PROCEDURAL BACKGROUND
This suit arises from injuries Mr. Baham sustained when repairing a water
main. Malone Electrical was retained by Ubisense and New Orleans Regional
Transit Authority (“RTA”) to install light poles and signs at Canal Street between
South Carrollton Avenue and South Solomon Street in New Orleans. Malone
Electrical hired J. Star Enterprises, Inc. (“J. Star”) as a subcontractor to dig holes
and pour concrete so that Malone Electrical could install the light poles. Prior to J.
Star beginning its work, Keith Pumilia, an employee of Malone Electrical
requested a site visit with Louisiana One Call-811 to review the location for the
signs. An appointment was set by Louisiana One Call on August 18, 2014 to meet
1 onsite to determine any potential underground utility conflicts at the subject
location.
On October 7, 2014, Eric Miller of J. Star called Louisiana One Call on the
date the work was scheduled to begin. Bobby Battles, an employee of J. Star was
excavating at the subject location when he noticed water slowly filling one of the
holes due to the damage of a water main. Mr. Battles called the New Orleans
Sewerage and Water Board (“SWB”) to cut the water service. On the same date,
Mr. Baham, an employee of the SWB, went to repair a water main located at the
subject location. Mr. Baham cut into an energized, unmarked, and uninsulated
electrical wire, which caused him to suffer an electrical shock that resulted in
severe and permanent injuries.
Mr. Baham filed his petition for damages, naming as defendants, Fisk
Electric Company, RTA, Allstar Electric, Inc. (“Allstar Electric”), and the City of
New Orleans. Thereafter, Mr. Baham filed a supplemental and amending petition
for damages, naming J. Star, Malone Electrical, and AIX Specialty Insurance as
defendants. Mr. Baham alleged that J. Star and its employee were responsible for
damaging the water line in connection with the installation of the light poles at the
scene and damaged the pipe protecting the electrical line. Mr. Baham further
alleged that Malone Electrical failed to notify Louisiana One Call at least forty-
eight hours prior to the start of the excavation and is also liable because it hired J.
Star.
2 On March 2, 2022, Malone Electrical filed a motion for summary judgment
arguing that the duty element of the duty/risk analysis and comparative fault could
not be established by plaintiff. Thereafter, Mr. Baham opposed the summary
judgment. The trial court held a hearing on the motion for summary judgment on
April 22, 2022. The court granted Malone Electrical’s motion for summary
judgment and dismissed Mr. Baham’s claims against Malone Electrical with
prejudice. In the oral reasons for judgment, the trial court provided that the fact
Malone Electrical made several calls to Louisiana One Call does not create liability
on their part. On June 8, 2022, Mr. Baham timely filed a motion for devolutive
appeal. This appeal follows.
STANDARD OF REVIEW
An appellate court review summary judgments de novo, using the same
criteria applied by the trial courts. Bellsouth Telecomms., Inc. v. Eustis Eng’g Co.,
Inc., 2007-0865, p. 2 (La. App. 4 Cir. 12/19/07), 974 So.2d 749, 750 (citing
Stanton v. Tulane University of Louisiana, 2000–0403 (La. App. 4 Cir. 01/10/01),
777 So.2d 1242). The standard for granting a motion for summary judgment is set
forth in La. C.C.P. art. 966(A)(3) which provides in pertinent part, “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 to judgment as a matter of law.” As articulated by this Court in
Brindell v. Carlisle Indus. Brake & Friction, Inc.,
La. C.C.P. art. 966(D)(1) provides that on a motion for summary judgment, although the burden of proof rests with the mover, if the
3 mover will not bear the burden of proof at trial, the mover must only point out the absence of factual support for one or more elements essential to the adverse party's claim. The burden then shifts to the adverse party who has the burden to 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.
2022-0153, p. 4 (La. App. 4 Cir. 9/21/22), 349 So.3d 678, 681 (quoting Bercy v.
337 Brooklyn, LLC, 2020-0583, pp. 3-4 (La. App. 4 Cir. 3/24/21), 315 So.3d 342,
345).
“In determining whether an issue is genuine, courts cannot consider the
merits, make credibility determinations, evaluate testimony, or weigh evidence.”
Precept Credit Opportunities Fund, L.P. v. Elmore, 2021-0502 (La. App. 4 Cir.
4/20/22, 3–4), 338 So.3d 87, writ denied, 2022-00782 (La. 9/20/22), 346 So.3d 288
(quoting Tran v. Collins, 2020-0246, p. 3 (La. App. 4 Cir. 8/20/21), 326 So.3d
1274). “A genuine issue of material fact is one as to which reasonable persons
could disagree, ‘if on the state of the evidence, reasonable persons could reach only
one conclusion, there is no need for trial on that issue, and summary judgment is
appropriate.’” Brindell, 2022-0153, p. 4, 349 So.3d at 681 (quoting Smith v. Our
Lady of the Lake Hosp., Inc., 1993-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751).
Further, a fact is material when its existence or nonexistence may be essential to
the plaintiff’s cause of action under the applicable theory of recovery. Id. (quoting
Chapital v. Harry Kelleher & Co., Inc., 2013-1606, p. 5 (La. App. 4 Cir. 6/4/14),
144 So.3d 75, 81).
DISCUSSION
4 On appeal, Mr. Baham argues that the trial court erred in granting Malone
Electrical’s motion for summary judgment as genuine issues of material fact exist.
Plaintiff asserts three assignments of error:
1) The trial court erred in determining Malone Electrical did not assume the duty to notify Louisiana One Call.
2) The trial court erred in determining Malone Electrical is not liable for the performance insufficiencies of J. Star.
3) The trial court erred in determining Malone Electrical is entitled to summary judgment as a matter of law.
While Mr. Baham assigns three errors, we narrow our discussion to two
issues: 1) whether Malone Electrical assumed a duty to notify Louisiana One Call,
and 2) whether the trial court erred in granting summary judgment in favor of
Malone Electrical. We begin our discussion by addressing whether Malone
Electrical assumed the duty to notify Louisiana One Call.
Assumption of Duty
Mr. Baham argues that Malone Electrical voluntarily and gratuitously
assumed the duty mandated by the Louisiana Underground Utilities and Facilities
Damage Prevention Law by Mr. Pumilia contacting Louisiana One Call on three
separate occasions in regards to the subject excavation. Our Supreme Court in
Hebert v. Rapides Par. Police Jury, 2006-2001, pp. 9-10 (La. 4/11/07), 974 So.2d
635, 643, on reh’g (Jan. 16, 2008) outlines the framework for analyzing an
assumption of duty:
Under Louisiana law, one who does not owe a duty to act may assume such a duty by acting. Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law 5.07[6], 5-27 (Supp.2006). In Bujol v. Entergy Services, Inc., [20]03–0492, p. 16 (La.5/25/04), 922 So.2d 1113, 1129, this Court explained this concept of assumption of duty and stated an assumption of duty arises when the defendant (1) undertakes to render services, (2) to another, (3) which the defendant should
5 recognize as necessary for the protection of a third person. Bujol involved the alleged assumption of the duty of a subsidiary to provide a safe working environment by a parent corporation under the “Good Samaritan Doctrine” as codified in Section 324A of the Restatement (Second) of Torts. [20]03-0492 at pp. 14-15, 922 So.2d at 1128.
***
The Bujol court described the action required by the defendant in such instances as an affirmative undertaking and further explained that the determination of whether such an action was taken involves an examination of the scope of the defendant’s involvement, the extent of the defendant’s authority, and the underlying intent of the defendant. [20]03-0492 at p. 18, 922 So.2d at 1131. As in other civil cases, the burden is on the plaintiff to prove by a preponderance of the evidence facts sufficient to establish the action undertaken by the defendant. See e.g., Bujol, [20]03-0492 at p. 16, 922 So.2d at 1130.
However, neither a defendant’s concern with safety conditions and its general communications regarding safety matters, nor its superior knowledge and expertise regarding safety issues, will create a duty to guarantee safety. Bujol, [20]03-0492 at p. 21, 922 So.2d at 1133. Likewise, inspections and mere safety recommendations, which recommendations are not mandatory and are not within the authority of the defendant to remediate, cannot create such a duty. Id. at 20-22, 1133-34.
The Louisiana Underground Utilities and Facilities Damage Prevention Law,
is governed, in part, by La. R.S. 40:1749.11-1749.14 and its “goal is to protect the
public from damage resulting from the underground utilities being damaged.”
Thibodeaux v. Gulfgate Constr., LLC, 2017-494, p. 4 (La. App. 3 Cir. 11/22/17),
234 So.3d 89, 93 (quoting Weatherly v. Fonseca & Assocs., L.L.C., 2010-495, p. 2
(La. App. 3 Cir. 10/6/10), 48 So.3d 394, 395-96, writ denied, 10-2497 (La. 1/7/11),
52 So.3d 887). “It requires excavators to ‘ascertain the location of underground
facilities by calling the notification center, known as ‘Louisiana One Call,’ at least
forty-eight but not more than 120 hours prior to excavation.’” Id., 2017-494, p. 4,
234 So.3d at 93 (quoting Bellsouth Telecomms., Inc. v. Eustis Eng’g Co., Inc.,
2007-865, pp. 2-3 (La. App. 4 Cir. 12/19/07), 974 So.2d 749, 750).
6 In this present matter, Mr. Baham asserts that Malone Electrical assumed the
duty to notify Louisiana One Call at least forty-eight hours before the excavation
began because Malone Electrical previously contacted Louisiana One Call on three
occasions. Malone Electrical concedes that Mr. Pumilia contacted Louisiana One
Call three times in August 2014 to schedule an appointment to identify any
potential underground utility conflicts at the proposed pole locations.
La. R.S. 40:1749.13(B)(1) provides in relevant part:
[P]rior to any excavation or demolition, each excavator or demolisher shall serve telephonic or electronic notice of the intent to excavate or demolish to the regional notification center or centers serving the area in which the proposed excavation or demolition is to take place.
Here, Malone Electrical was hired to install light poles and signs. Malone
Electrical then retained J. Star as a subcontractor to conduct the excavation for the
installation. The record provides that Malone Electrical was provided general
locations where the poles were to be installed by Ubisense. In return, Malone
Electrical found specific locations for Ubisense and then requested the approval of
the locations from RTA and Ubisense. Upon confirmation from Ubisense, Malone
Electrical contacted Louisiana One Call to confirm that the desired locations were
probable.
Louisiana jurisprudence has recognized that general communications about
safety matters and inspections does not amount to assumption of duty. See Hebert,
2006-2001, pp. 9-10, 974 So.2d at 643; see also Louisiana Citizens Prop. Ins.
Corp. v. LAA Shoring, LLC, 2016-1136, p. 10 (La. App. 4 Cir. 6/14/17), 223 So.3d
17, 25 (The Court held that attempting to verify safety information or ensuring
adherence to safety standards does not equate with undertaking a duty).
7 Accordingly, we do not find that Malone Electrical assumed a duty as an
excavator by contacting Louisiana One Call. Accordingly, the trial court did not err
in finding that Malone Electrical did not assume the duty to notify Louisiana One
Call. We now discuss whether genuine issues of material fact remain as to Malone
Electrical’s liability for the actions or omissions of J. Star.
Summary Judgment
The primary focus of Malone Electrical’s motion for summary judgment
was that it did not owe a duty to Mr. Baham as it was not legally required to notify
Louisiana One Call, and it is statutorily immune pursuant to La. R.S.
40:1749.14(E)(1) because it and its subcontractor fully complied with all
requirements of Louisiana One Call.1 In opposition, Mr. Baham contends that as a
vendor, Malone Electrical is liable for the performance insufficiencies of its
subcontractor, J. Star. Mr. Baham further argues that Malone Electrical voluntarily
and gratuitously assumed the duty mandated by the Louisiana Underground
Utilities and Facilities Damage Prevention Law by Mr. Pumilia contacting
Louisiana One Call on three separate occasions in regards to the subject
excavation. Mr. Baham argues that Mr. Pumilia’s notification to Louisiana One
Call did not fall in the statutorily required time periods.
1 La. R.S. 40:1749.14(E) provides “[a]n excavator or demolisher who has given notice and
otherwise complied with the provisions of this Part shall be immune from civil liability for damages in the area of the proposed excavation or demolition caused by such excavation or demolition to any owner or operator who: (a) Was required by the provisions of this Part to become a member, participate in, or share the cost of a regional notification center, and failed to do so.
(b) Failed to mark or provide information as required by the provisions of this Part.
(2) The immunity provided by this Subsection shall not apply to civil liability for damages caused by the negligence of the excavator or demolisher.
8 Duty Risk
“Louisiana courts use a duty-risk analysis in negligence cases to determine
whether liability exists under the facts of a particular case.” Thibodeaux, 2017-494,
pp. 4-5, 234 So.3d at 93 (quoting Cormier v. Albear, 99-1206, p. 6 (La. App. 3 Cir.
2/2/00), 758 So.2d 250, 254). To succeed in his negligence claim, Mr. Baham must
prove under the duty/risk analysis five elements: (1) defendant’s duty of care to
him; (2) the defendant’s breach of duty; (3) defendant’s substandard conduct was a
cause-in-fact of the plaintiff’s injuries; (4) legal causation (scope of duty); and (5)
damages caused by the breach of duty. James v. Ernest N. Morial New Orleans
Exhibition Hall Auth., 2018-0198, p. 6 (La. App. 4 Cir. 12/26/18), 262 So.3d 958,
963 (internal citation omitted). “If a plaintiff fails to prove one of the five
elements, a defendant cannot be held liable.” Id., 2018-0198, p. 6, 262 So.3d at 963
(citing Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 8 (La. 3/10/06), 923
So.2d 627, 633).
“A threshold issue in any negligence action is whether the defendant owed
the plaintiff a duty.” James, 2018-0198, p. 7, 262 So.3d at 964 (quoting Ponceti v.
First Lake Properties, Inc., 2011-2711, p. 2 (La. 7/2/12), 93 So.3d 1251, 1252.
“Whether a duty is owed is a question of law.” Id. (quoting Lemann, 2005-1095, p.
8, 923 So.2d at 636).
“[G]enerally, a principal is not liable for the offenses committed by an
independent contractor while performing its contractual duties.” Id. at p. 7, 262
So.3d at 964 (quoting Thompson v. Winn-Dixie Montgomery, Inc., 2015-0477, p.
12 (La. 10/14/15), 181 So.3d 656, 665). This rule is subject to two exceptions: 1)
the principal may not escape liability for injuries resulting from the contractor
performing ultra-hazardous work, or 2) the principal cannot escape liability when it
9 reserves the right to supervise or control the work of the independent contractor, or
gives express or implied authorization to an unsafe practice. Sasser v. Wintz, 2011-
2022, p. 9 (La. App. 1 Cir. 9/4/12), 102 So.3d 842, 848.
We note that as principal, Malone Electrical did not owe a duty to Mr.
Baham absent the showing that Mr. Baham’s injuries resulted from J. Star
performing ultra-hazardous work, or that Malone Electrical reserved the right to
supervise or control the work of J. Star.
Ultra-hazardous Work
“Ultra-hazardous” work “are those which can cause injury to others even
when conducted with the greatest prudence and care.” Sims v. Cefolia, 2004-343,
p. 8 (La. App. 5 Cir. 11/30/04), 890 So.2d 626, 631-32, writ denied, 2005-0005
(La. 3/11/05), 896 So.2d 73 (citing Vicknair v. Boh Bros. Const. Co., L.L.C., 2003-
1351 (La. App. 5 Cir. 3/30/04), 871 So.2d 514, 521). “The critical inquiry in
determining whether activity is [ultra-hazardous] or inherently dangerous is
whether it can be made safe when it is performed in a proper and workmanlike
manner.” Sims, 2004-343, p. 8, 890 So.2d at 632 (citing Buras v. Lirette, 97-1255
(La. App. 4 Cir. 12/23/97), 704 So.2d 980, 983) (The Sims court noted that
although there are some danger in all aspects of construction, the evidence
presented did not support the plaintiff’s contention that digging a tunnel/excavation
cannot be made safe when it is performed in a proper and workmanlike manner).
The record in this instant matter does not reflect that Mr. Baham’s injuries
were the result of an ultra-hazardous work activity or the existence of an inherently
dangerous condition. We find that excavation can be performed in a safe, proper,
and workmanlike manner; thus the activity of excavation is not ultra-hazardous in
nature.
10 Independent Contractor
Next, we examine the relationship between Malone Electrical and J. Star in
determining Malone Electrical’s liability. The following factors are considered in
determining whether an independent contractor relationship exist:
1. A valid contract exists between the parties;
2. The work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;
3. The contract calls for specific piecework as a unit to be done according to the contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
4. There is a specific price for the overall undertaking; and
5. The duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.
Sasser, 2011-2022, p. 9, 102 So.3d at 848 (quoting Roca v. Security National
Properties-Louisiana Limited Partnership, 2011-1188, pp. 4-5 (La. App. 1st
Cir.2/10/12), 102 So.3d 778, 781).
Specifically, in determining whether someone is an independent contractor,
one must look at his degree of control over the work. “While the principal has the
ability to oversee the results of the contractor’s work, the principal in no way
influences the manner in which the contractor does the work.” Id. at p. 9, 102
So.3d at 848. In contrast, an employer has a great amount of control over an
employee’s work, which includes “the nature of the task and where it is to be
performed, setting the wage, and the power of dismissal.” Id.
In the instant case, Malone Electrical offered as an exhibit, in support of its
motion for summary judgment, the Louisiana One Call System Ticket Number
140443966, which was requested by J. Star on October 7, 2014 and identified that
11 the work that was to be conducted was an installation of electric light poles for
Malone Electrical. Malone Electrical also offered the deposition testimony of Mr.
Baham. Mr. Baham testified that he went to the location to cut the water service.
Mr. Baham further testified that the location was already marked, which identified
where gas, cable, and electrical lines were located.
In opposition to the summary judgment, Mr. Baham offered emails between
Mr. Pumilia and an Ubisense representative as exhibits, in which Mr. Pumilia
provided that he contacted Louisiana One Call three times in August 2014. Mr.
Baham also offered the deposition testimony of Willie Starling, the project
manager of J. Star. Mr. Starling testified that he communicated with Mr. Pumilia
regarding the project. Mr. Starling attested that J. Star and Malone Electrical did
not discuss who would be responsible for doing the 811 locate. Mr. Starling agreed
that he relied on Malone Electrical and RTA to determine where the work should
be done and whether there was anything underground in particular spots.
Malone Electrical cannot be held liable for the work performed by the
subcontractor, J. Star, in the absence of proof that the work performed was
intrinsically or inherently dangerous, or that Malone Electrical reserved the right to
supervise or control the work or gave express or implied authorization for an
unsafe practice. See Sasser, 2011-2022, pp. 9-10, 102 So.3d at 849. Mr. Baham did
not put forth any evidence to meet these requirements. The mere fact that Malone
Electrical and J. Star communicated about the project, and J. Star relied on Malone
Electrical to provide the location where the excavation would take place is
insufficient to place a legal duty on Malone Electrical to protect Mr. Baham from
the alleged negligence of an independent contractor.
12 Failure to prove any of the elements of the duty/risk analysis results in a
determination of no liability. James, 2018-0198, p. 6, 262 So.3d at 963 (internal
citation omitted). To prevail in his negligence claim against Malone Electrical, Mr.
Baham bore the burden of establishing that Malone Electrical was at fault for
causing his injury, using duty/risk analysis. In opposing the motion for summary
judgment, Mr. Baham was required to demonstrate that he could establish essential
elements of his claim at trial. See Gutierrez v. Baldridge, 2010-1528 (La. App. 3
Cir. 5/11/11), 65 So.3d 251.
The record is devoid of evidence to establish that Mr. Baham’s injuries
resulted from ultra-hazardous work activity or the existence of an inherently
dangerous condition at the location, of which Malone Electrical should have given
warning. Further, Mr. Baham failed to show that Malone Electrical exercised
operational control over J. Star’s work. While J. Star’s employee, Mr. Starling
agreed that he relied on Malone Electrical and RTA to determine where the work
should be done and whether there was anything underground in particular spots,
this does not constitute operational control. “A principal is entitled to maintain
supervisory control over a project done by an independent contractor to ensure that
it complies with the contract.” McDaniel v. R.J.’s Transp., L.L.C., 53,667, pp. 10-
11 (La. App. 2 Cir. 1/13/21), 310 So.3d 760, 766 (citing Nippa v. Chevron, USA,
99-2953 (La. App. 4 Cir. 11/15/00), 774 So. 2d 310, 314, writ denied, 2000-3420
(La. 2/9/01), 785 So. 2d 823). Suggestions or instructions to an independent
contractor does not equate to control over the methods or details of a contractor’s
work. Klein v. Cisco-Eagle, Inc., 37,398, pp. 10-11 (La. App. 2 Cir. 9/24/03), 855
So.2d 844, 851.
13 In consideration of Mr. Baham’s failure to carry his burden of showing
factual support, we find that the trial court did not err in granting summary
judgment in favor of Malone Electrical and dismissing Mr. Baham’s claims against
Malone Electrical with prejudice
CONCLUSION
In light of our finding that Malone Electrical did not assume a duty as
excavator, and that Mr. Baham failed to carry his burden of showing factual
support, we affirm the May 31, 2022 judgment granting summary judgment in
favor of Malone Electrical and dismissing Mr. Baham’s claims against Malone
Electrical with prejudice.
AFFIRMED