Fluence v. Marshall Bros. Lincoln-Mercury Inc.

54 So. 3d 711, 10 La.App. 5 Cir. 482, 2010 La. App. LEXIS 1629, 2010 WL 4823820
CourtLouisiana Court of Appeal
DecidedNovember 23, 2010
DocketNo. 10-CA-482
StatusPublished
Cited by4 cases

This text of 54 So. 3d 711 (Fluence v. Marshall Bros. Lincoln-Mercury Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fluence v. Marshall Bros. Lincoln-Mercury Inc., 54 So. 3d 711, 10 La.App. 5 Cir. 482, 2010 La. App. LEXIS 1629, 2010 WL 4823820 (La. Ct. App. 2010).

Opinion

SUSAN M. CHEHARDY, Judge.

l2The plaintiff appeals a summary judgment that dismissed his suit arising from injuries he sustained while working. We affirm.

FACTS

On April 27, 2006, Larry “Brother” Fluence was employed by Fleming Construction Company (“Fleming”), which was laying asphalt in the parking lot of Marshall Bros. Lincoln-Mercury, Inc. (“Marshall Bros.”), a car dealership in Metairie, Jefferson Parish. Labiche Plumbing, Inc. (“Labiche”), a plumbing contractor, had installed a new drainage system at Marshall Bros., and a four-foot-deep drain opening had been left uncovered. As Flu[712]*712ence walked across the parking lot, he fell into the uncovered hole and suffered injuries, including a herniated lumbar disc that required surgery.

Fluence filed suit against Marshall Bros, and Labiche, asserting they were hable for a dangerous condition that resulted in his injury.1 Both Marshall Bros, and Labiche filed motions for summary judgment, asserting they had breached no duty to the plaintiff and that the hole did not present an unreasonable risk of harm. They argued the plaintiff knew his work crew was there to lay asphalt around the new drainage system, and he had seen the hole earlier in the day, so he was aware |sthe hole was there. They argued that the hole could be seen from at least 20 feet away, so it was not a hidden defect, and plaintiffs walking backward toward the open and obvious hazard as he worked was an assumption of the risk. Further, the plaintiffs job that day was to assist in laying asphalt over the drainage system that had been installed by Labiche. The defendants contended that Fleming had been hired to work on that particular property, and Fleming had garde of it during the process, giving Fleming the responsibility for maintaining a safe worksite for its employees.

The plaintiff admitted he saw the open drain when he arrived for work, but said he forgot about it during the course of the day while working in another area of the jobsite. Later that day, as he was moving backward to smooth freshly-poured asphalt, he fell into the open drain. The plaintiff argued that the hole may have been open and obvious, but was not apparent to a worker whose job duty was to walk backwards smoothing off the newly-laid asphalt. The plaintiff conceded he may have had some responsibility, but stated the issue is the comparative fault of the parties, which the plaintiff asserted is a contested factual issue that should be determined by a jury.

The trial court ruled from the bench, stating, “I think in his deposition he said that he was aware that it was there, and as sympathetic as I may be to the plaintiff and his cause, I feel I’ve got to grant their motion for summary judgment....”

ARGUMENTS ON APPEAL

On appeal the plaintiff contends the trial court erred by granting the motions for summary judgment, because there are genuine issues of material fact as to whether the defendants breached their duties to the plaintiff. The plaintiff asserts Marshall Bros, failed in its duty to protect invitees from unsafe and unreasonably |4dangerous conditions, and to warn innocent invitees of existing hazards. The plaintiff asserts Labiche failed to properly supervise its employees, failed to timely replace the drain cover, failed to warn, and failed to mark off the area with yellow tape or to employ some other proper warning procedures.

Further, the plaintiff argues the trial court erred in not applying the comparative fault doctrine. The plaintiff contends that allocation of fault is a matter for the jury, and that the test for liability applicable to Labiche, as contractor hired to install drains, is different from the test for liability applicable to Marshall Bros, as landowner. The plaintiff contends that the facts and circumstances justify a finding of fault against the defendants, Marshall Bros, and Labiche.

The plaintiff argues that if fault is imputed to him based on the simple fact that he knew of the uncovered drain, the same [713]*713knowledge should be assessed against La-biche because it was Labiche’s employees who removed the drain cover. Similarly, Marshall Bros, had legal control of the area and its employees traversed the area while attending to customers, so the plaintiff argues Marshall Bros, should be deemed to have had constructive notice of the condition. Hence, if fault is imputed to the plaintiff based on the “open and obvious danger” doctrine, the plaintiff asserts the doctrine should be universally applied to all parties involved. The plaintiff contends these factors, at a minimum, establish that material issues of law and fact exist, requiring reversal of the summary judgment.

In opposition to the appeal, Marshall Bros, asserts that the plaintiff and his statutorily-immune employer are collectively 100 percent at fault for this accident. The plaintiff was not working alone, but was part of a seven- or eight-worker crew. The plaintiff admitted that when he arrived for work in the morning, he noticed the uncovered drain; several hours later, he had forgotten about it and stepped into it while walking backwards and shoveling asphalt. Marshall Bros, contends the duty Uto provide the plaintiff with a safe workplace belonged to his employer, Fleming. Fleming could have stationed one of its employees as a lookout while the plaintiff was walking backwards to perform his job. Marshall Bros, argues that the plaintiff was actively working as part of a crew to lay asphalt around the drain, and therefore Marshall Bros, had no duty to ensure he did not injure himself in his workplace, or to remind him of a hazard of which he already was aware. Marshall Bros, urges us to affirm the summary judgment on the ground the uncovered drain did not present an unreasonable risk of harm to this plaintiff.

Labiche also opposes the appeal, arguing the trial court did not err in granting summary judgment because the hole was open and obvious and did not constitute an unreasonably dangerous condition, especially to a construction worker who was working to fill in the holes in the area and knew of the hole’s existence prior to the accident. Labiche asserts that only situations that produce an unreasonable risk of harm or an unreasonably dangerous defect should expose a defendant to liability. La-biche contends the trial court properly considered the law and evidence in determining there was no evidence that Labiche is not liable for an injury caused by an open and obvious condition that the plaintiff observed and of which he was aware before the accident.

LAW AND ANALYSIS

Summary judgment is appropriate when the pleadings, depositions, and affidavits show 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. In a recent case our supreme court summarized summary judgment law as follows:

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. A motion for summary judgment is a procedural device used when | (¡there is no genuine issue of material fact. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to favorably accomplish these ends.

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54 So. 3d 711, 10 La.App. 5 Cir. 482, 2010 La. App. LEXIS 1629, 2010 WL 4823820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fluence-v-marshall-bros-lincoln-mercury-inc-lactapp-2010.