FLOYD THOMASSIE * NO. 2023-CA-0749
VERSUS * COURT OF APPEAL SOUTHERN HERITAGE * CONSTRUCTION, LLC, FOURTH CIRCUIT MICHAEL T. RYAN, * BEVERLY P. WATTS, RIVER STATE OF LOUISIANA RENTAL TOOLS, INC., ABC ******* INSURANCE COMPANY, AND XYZ INSURANCE COMPANY
APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 66-237, DIVISION “B” Honorable Michael D. Clement ****** Judge Roland L. Belsome ****** (Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge Dale N. Atkins)
ATKINS, J. CONCURS IN THE RESULT.
Leo J. Palazzo Jason J. Markey Mario A. Arteaga, Jr. Davin R. Savoy PALAZZO LAW FIRM, APLC 732 Behrman Highway Suite F & G Gretna, LA 70056
Scott Allen Decker THE LAW OFFICES OF SCOTT A. DECKER, LLC 3324 N. Causeway Boulevard Metairie, LA 70002
James F. Kreihs ATTORNEY AT LAW 200 Jewel Street, Suite B New Orleans, LA 70124
COUNSEL FOR PLAINTIFF/APPELLANT Michael S. Futrell CONNICK AND CONNICK, L.L.C. 3421 N. Causeway Blvd., Suite 408 Metairie, LA 70002
COUNSEL FOR DEFENDANT/APPELLEE
REVERSED AND REMANDED. MAY 15, 2024. RLB Floyd Thomassie (“Thomassie”), the appellant in this case was electrocuted TFL and fell during the course and scope of his work on a construction site. He alleges
that he suffered significant injuries to his back, neck, and feet, requiring multiple
surgeries. He sued the owner of the jobsite, among others, seeking compensation
for his injuries. On summary judgment, the district court dismissed appellant’s
claim against the property owner, holding that, “There is no evidence under any
theory of liability that [the property owner] is liable to the plaintiff for the injuries
sustained.” For the reasons set forth below, we disagree with that holding and
reverse.
Thomassie was employed by A-1 Steel Erectors, Inc. (“A-1”). A-1 was
hired by Southern Heritage Construction, L.L.C. (“Southern Heritage”) as a
subcontractor to complete a portion of the renovation work on the jobsite. The
jobsite or “Property” is a building located in Belle Chasse, Louisiana. The
Property is leased by the defendant, River Rental Tools, Inc. (“River Rental”).1
River Rental’s central argument is that it owes Thomassie no duty having
ceded all operational control and possession of the Property to Southern Heritage
at the time Thomassie was injured. Thomassie argues, conversely, that River
Rental had implicitly accepted a duty to hire an electrical contractor to ensure that
1 River Rental Realty is the owner and lessor of the Property. It is owned by some of the same principals as River Rental Tools, Inc. In this opinion, River Rental is referred to as the property owner. 1 electricity was turned off in the work area. Thomassie also argues that River Rental
retained some operational control by virtue of its internal safety policies that it
failed to follow.
Summary of facts.
The renovation contract between River Rental and Southern Heritage was
not memorialized in a typical written contract. A representative of River Rental
met with a representative of Southern Heritage at the Property. The River Rental
representative pointed out the work to be done and Southern Heritage submitted a
written estimate of the cost of completion and terms for payment. The written
estimate2 for the job provided, “All electrical work to be done by others.”
On August 29, 2019, the day of the accident, Thomassie began his work day
on another site. As work was stalled on that site, Thomassie was moved to the
River Rental job about 11 a.m. He had missed a 7 a.m. meeting at the site at which
the day’s work was discussed, but a co-worker familiarized him with the work
sufficiently to begin preparation to “hang a beam” in the metal building’s
superstructure. Thomassie and the co-worker were both foremen with many years
of experience in this type of work. Southern Heritage’s foreman, Mike Ryan
(“Ryan”), was a licensed electrician, but River Rental had decided to hire an
electrical contractor to perform the electrical work. That contractor was not on the
job until after the accident that forms the basis of this suit.
Thomassie noted that there was an electrical junction box in the way of the
proposed beam. He volunteered to move the junction box. A-1’s foreman and its
owner were present earlier in the day when Ryan announced that he had turned off
2 In a one-page document dated October 24, 2018, entitled “Estimate”, Southern Heritage outlines a scope of
work to be performed. It is addressed to River Rental. This document will be referred to as the Contract.
2 the electrical switch controlling the junction box. The A-1 foreman passed that
information to Thomassie. The foreman also told Thomassie that he had already
been pulling wires in preparation for moving other electrical equipment that was in
the path of the construction. Thomassie testified in deposition that he saw many of
the discarded wires lying on the floor.
The junction box was fairly high in the building. The foreman held a 16-
foot extension ladder for Thomassie to reach the box. Thomassie first tried to pull
the wires out of the box by hand. Failing that, he took wire-cutters out of his
pocket and tried to cut the wire. When the cutter made contact with the live wire,
Thomassie was knocked off the ladder and fell the fifteen feet to the concrete floor.
As he described the fall, the foreman “caught” him as he landed on his feet. He
fractured both his heels and suffered injury to his spine. He alleges that he has
been in great pain ever since and is unable to walk more than very short distances
now. He is limited to riding a scooter around his home and to do other activities
outside the home. The record indicates that he had five surgeries to repair his heels
and three more surgeries to install an electrical stimulator in his spine to lessen the
pain from his heels. He testified that the stimulator has helped with the pain but
has fallen far short of restoring his normal function.
District court proceedings.
Thomassie sued Southern Heritage, Ryan, and River Rental. The petition
alleges that the combined negligence of the defendants caused his accident. After a
substantial amount of discovery had been completed River Rental filed its motion
for summary judgment.3 In its motion, River Rental argues that it had cleared its
3 Southern Heritage also filed a motion for summary judgment, which was withdrawn before the
hearing. 3 personnel from the site and turned over control to the contractors. Thomassie
generally raises two factual theories that would support a finding of liability for
River Rental. First, the estimate prepared by Southern Heritage negates any
responsibility for “electrical work”. The argument follows that River Rental
should have hired an electrical contractor or had other personnel on hand to
manage that portion of the work. Second, Thomassie alleges that River Rental
failed to follow its own safety procedures as defined by its in-house safety manual.
The manual requires the following safety practices required by the safety manual
were not observed on the River Rental jobsite: (1) electrical circuits were not
tagged and locked out; (2) an aluminum ladder, as opposed to wooden or
fiberglass, was used around electrical equipment; (3) no job safety meetings were
held to advise the contractors of River Rental safety policies and procedures; and
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FLOYD THOMASSIE * NO. 2023-CA-0749
VERSUS * COURT OF APPEAL SOUTHERN HERITAGE * CONSTRUCTION, LLC, FOURTH CIRCUIT MICHAEL T. RYAN, * BEVERLY P. WATTS, RIVER STATE OF LOUISIANA RENTAL TOOLS, INC., ABC ******* INSURANCE COMPANY, AND XYZ INSURANCE COMPANY
APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 66-237, DIVISION “B” Honorable Michael D. Clement ****** Judge Roland L. Belsome ****** (Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge Dale N. Atkins)
ATKINS, J. CONCURS IN THE RESULT.
Leo J. Palazzo Jason J. Markey Mario A. Arteaga, Jr. Davin R. Savoy PALAZZO LAW FIRM, APLC 732 Behrman Highway Suite F & G Gretna, LA 70056
Scott Allen Decker THE LAW OFFICES OF SCOTT A. DECKER, LLC 3324 N. Causeway Boulevard Metairie, LA 70002
James F. Kreihs ATTORNEY AT LAW 200 Jewel Street, Suite B New Orleans, LA 70124
COUNSEL FOR PLAINTIFF/APPELLANT Michael S. Futrell CONNICK AND CONNICK, L.L.C. 3421 N. Causeway Blvd., Suite 408 Metairie, LA 70002
COUNSEL FOR DEFENDANT/APPELLEE
REVERSED AND REMANDED. MAY 15, 2024. RLB Floyd Thomassie (“Thomassie”), the appellant in this case was electrocuted TFL and fell during the course and scope of his work on a construction site. He alleges
that he suffered significant injuries to his back, neck, and feet, requiring multiple
surgeries. He sued the owner of the jobsite, among others, seeking compensation
for his injuries. On summary judgment, the district court dismissed appellant’s
claim against the property owner, holding that, “There is no evidence under any
theory of liability that [the property owner] is liable to the plaintiff for the injuries
sustained.” For the reasons set forth below, we disagree with that holding and
reverse.
Thomassie was employed by A-1 Steel Erectors, Inc. (“A-1”). A-1 was
hired by Southern Heritage Construction, L.L.C. (“Southern Heritage”) as a
subcontractor to complete a portion of the renovation work on the jobsite. The
jobsite or “Property” is a building located in Belle Chasse, Louisiana. The
Property is leased by the defendant, River Rental Tools, Inc. (“River Rental”).1
River Rental’s central argument is that it owes Thomassie no duty having
ceded all operational control and possession of the Property to Southern Heritage
at the time Thomassie was injured. Thomassie argues, conversely, that River
Rental had implicitly accepted a duty to hire an electrical contractor to ensure that
1 River Rental Realty is the owner and lessor of the Property. It is owned by some of the same principals as River Rental Tools, Inc. In this opinion, River Rental is referred to as the property owner. 1 electricity was turned off in the work area. Thomassie also argues that River Rental
retained some operational control by virtue of its internal safety policies that it
failed to follow.
Summary of facts.
The renovation contract between River Rental and Southern Heritage was
not memorialized in a typical written contract. A representative of River Rental
met with a representative of Southern Heritage at the Property. The River Rental
representative pointed out the work to be done and Southern Heritage submitted a
written estimate of the cost of completion and terms for payment. The written
estimate2 for the job provided, “All electrical work to be done by others.”
On August 29, 2019, the day of the accident, Thomassie began his work day
on another site. As work was stalled on that site, Thomassie was moved to the
River Rental job about 11 a.m. He had missed a 7 a.m. meeting at the site at which
the day’s work was discussed, but a co-worker familiarized him with the work
sufficiently to begin preparation to “hang a beam” in the metal building’s
superstructure. Thomassie and the co-worker were both foremen with many years
of experience in this type of work. Southern Heritage’s foreman, Mike Ryan
(“Ryan”), was a licensed electrician, but River Rental had decided to hire an
electrical contractor to perform the electrical work. That contractor was not on the
job until after the accident that forms the basis of this suit.
Thomassie noted that there was an electrical junction box in the way of the
proposed beam. He volunteered to move the junction box. A-1’s foreman and its
owner were present earlier in the day when Ryan announced that he had turned off
2 In a one-page document dated October 24, 2018, entitled “Estimate”, Southern Heritage outlines a scope of
work to be performed. It is addressed to River Rental. This document will be referred to as the Contract.
2 the electrical switch controlling the junction box. The A-1 foreman passed that
information to Thomassie. The foreman also told Thomassie that he had already
been pulling wires in preparation for moving other electrical equipment that was in
the path of the construction. Thomassie testified in deposition that he saw many of
the discarded wires lying on the floor.
The junction box was fairly high in the building. The foreman held a 16-
foot extension ladder for Thomassie to reach the box. Thomassie first tried to pull
the wires out of the box by hand. Failing that, he took wire-cutters out of his
pocket and tried to cut the wire. When the cutter made contact with the live wire,
Thomassie was knocked off the ladder and fell the fifteen feet to the concrete floor.
As he described the fall, the foreman “caught” him as he landed on his feet. He
fractured both his heels and suffered injury to his spine. He alleges that he has
been in great pain ever since and is unable to walk more than very short distances
now. He is limited to riding a scooter around his home and to do other activities
outside the home. The record indicates that he had five surgeries to repair his heels
and three more surgeries to install an electrical stimulator in his spine to lessen the
pain from his heels. He testified that the stimulator has helped with the pain but
has fallen far short of restoring his normal function.
District court proceedings.
Thomassie sued Southern Heritage, Ryan, and River Rental. The petition
alleges that the combined negligence of the defendants caused his accident. After a
substantial amount of discovery had been completed River Rental filed its motion
for summary judgment.3 In its motion, River Rental argues that it had cleared its
3 Southern Heritage also filed a motion for summary judgment, which was withdrawn before the
hearing. 3 personnel from the site and turned over control to the contractors. Thomassie
generally raises two factual theories that would support a finding of liability for
River Rental. First, the estimate prepared by Southern Heritage negates any
responsibility for “electrical work”. The argument follows that River Rental
should have hired an electrical contractor or had other personnel on hand to
manage that portion of the work. Second, Thomassie alleges that River Rental
failed to follow its own safety procedures as defined by its in-house safety manual.
The manual requires the following safety practices required by the safety manual
were not observed on the River Rental jobsite: (1) electrical circuits were not
tagged and locked out; (2) an aluminum ladder, as opposed to wooden or
fiberglass, was used around electrical equipment; (3) no job safety meetings were
held to advise the contractors of River Rental safety policies and procedures; and
(4) no electrical contractor was on site at the time that River Rental knew electrical
work would be required.
Having heard these arguments of fact and law, the trial court granted the
summary judgment, ruling that there is nothing whatsoever in the record that
places a duty on River Rental to protect Thomassie’s safety.
Analysis.
A motion for summary judgment may only be granted when the moving
party proves that there is no genuine issue as to any material fact and the mover is
entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A genuine issue
of fact is one about which reasonable factfinders could disagree. King v. Town of
Clarks, 2021-01897, p. 1, (La. 2/22/22), 345 So. 3d 422, 422. On appeal of a
summary judgment, our court must review the pleadings and evidence de novo.
4 Robertson v. Kearney Companies, Inc., 2020-0605, p. 3, (La. App. 4 Cir. 3/25/21),
315 So. 3d 931, 935.
A contract has the effect of law for the parties. La. C. C. art. 1983. Where
there is an agreement by two or more parties whereby obligations are created, there
is a contract. La. C. C. art. 1906. Contracts need not be written in any particular
form. La. C. C. art. 1927. As we observed above, there is very little writing that
memorializes the agreement between River Rental and Southern Heritage. At
some point after River Rental received the Contract, work began.
The essence of River Rental’s argument is that Southern Heritage is an
independent contractor that is solely responsible for the means and methods of
performance of the Contract. It is a generally accepted rule of law that an owner
who has hired an independent contractor has no duty to the contractor’s employees.
Nippa v. Chevron, USA, 1999-2953, p. 6 (La. App. 4 Cir. 11/15/00), 774 So. 2d
310, 314, writ denied, 2000-3420 (La. 2/9/01), 785 So. 2d 823. In Nippa, our court
acknowledged exceptions to the general rule when the undertaking is ultra-
hazardous or when the owner retains operational control of the work. Id. As we
observed above, the Contract makes it clear that River Rental retained operational
control of all electrical work. That is the effective meaning of the sentence, “All
electrical work to be done by others.” Having accepted the Contract in this form,
River Rental imposed upon itself the duty to retain an electrical contractor to
supervise all electrical work or to provide its own personnel to do so. River
Rental’s argument that it had no employees on site is without merit because
jurisprudence makes it clear that retaining the operational control is the key, not
the exercise of the retained control. McDaniel v. R.J.'s Transportation, L.L.C.,
53,667, p. 9 (La. App. 2 Cir. 1/13/21), 310 So. 3d 760, 765. 5 Thomassie offers the added argument that River Rental failed to follow its
own internal safety manual in the manner recited above. We do not find that River
Rental’s adoption of safety procedures imposes any additional or different duty on
River Rental on this set of facts. The purpose served by the manual is to educate
us on rational steps that River Rental could have taken to prevent Thomassie’s
accident. A factfinder could find that River Rental’s statements of proper safety
precautions are steps that should have been taken by River Rental to prevent
accidents in this situation. That possibility presents a genuine issue of fact that
makes summary judgment inappropriate in this case.
Conclusion.
For the above and foregoing reasons we reverse the summary judgment and
remand for further proceedings in accord with this decision.
REVERSED AND REMANDED.