Fowler v. Harris Builders, LLC

87 So. 3d 977, 11 La.App. 5 Cir. 984, 2012 La. App. LEXIS 398, 2012 WL 1020642
CourtLouisiana Court of Appeal
DecidedMarch 27, 2012
DocketNo. 11-CA-984
StatusPublished

This text of 87 So. 3d 977 (Fowler v. Harris Builders, LLC) 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
Fowler v. Harris Builders, LLC, 87 So. 3d 977, 11 La.App. 5 Cir. 984, 2012 La. App. LEXIS 398, 2012 WL 1020642 (La. Ct. App. 2012).

Opinion

ROBERTA. CHAISSON, Judge.

| c,This is an appeal by Melanie Fowler, plaintiff-appellant, from a summary judgment dismissing her suit against Harris Builders, LLC, The Shaw Group Inc., and Gibbs Construction, LLC, defendants-ap-pellees. For the following reasons we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In the aftermath of Hurricane Katrina, the Federal Emergency Management Agency (“FEMA”) began a program to place people who had lost their homes during the hurricane into temporary housing in and around the New Orleans metropolitan area. To accomplish this, FEMA contracted with Shaw Environmental, Inc. (“Shaw”) to install travel trailers at various locations. Shaw subcontracted with Harris Builders, LLC (“Harris”) to perform some of this work, and Harris in turn subcontracted with Gibbs Construction, LLC (“Gibbs”) to help with the installations.

|4PIaintiffs sister, Melissa Fowler, requested that a FEMA trailer be placed at her mother’s home at 2624 Bengal Road, Metairie, Louisiana. The travel trailer sent by FEMA was manufactured by Jay-eo.1 As manufactured, the trailer had fold down steps. It was allegedly installed by Gibbs, but Gibbs denies that it has any paperwork to substantiate this assertion. Regardless of who did the actual installation, the trailer was then subjected to a “Quality Control” inspection by Harris, after which Shaw did a final “Ready for Occupancy” (“RFO”) inspection. Melissa Fowler was allowed to occupy the trailer only after the RFO was completed and she signed the document signifying her acceptance of the unit.

Melissa Fowler lived in the travel trailer from October 2005 until February 2006 without incident. When she moved out, her sister, Melanie Fowler (“Ms. Fowler”) moved in. Four months later, on June 23, 2006, as Ms. Fowler was descending the steps, she stepped from the bottom step to the ground and fell, breaking one ankle and spraining the other. Ms. Fowler filed this suit on May 7, 2007.

The basic allegation of the suit is that the defendants were negligent in not erecting wooden steps and handrails in place of the manufacturer’s metal fold down steps when the trailer was installed. After preliminary discovery was conducted, defendants Shaw and Harris urged Motions for Summary Judgment which were set for hearing on March 19, 2009. Plaintiff successfully argued in opposition to the motions that discovery was not complete, and was granted an additional 120 days, until July 17, 2009, to finish discovery. The defendants re-urged their motions for summary judgment and a hearing was set for October 8, 2009. Hearing on the motions was again delayed to allow further discovery. | sAnother hearing on March 18, 2010, resulted in a further continuance to July 29, 2010. On that date, plaintiff was granted another continuance due to family matters. On October 6, 2010, defendant Gibbs also filed a Motion for Summary Judgment. On October 22, 2010, the Motions for Summary Judgment urged by all three defendants were heard and granted. Plaintiff urged a Motion for a New Trial, which was denied, and this appeal followed.

LAW AND ANALYSIS

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions, and the [980]*980procedure is favored and should be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A summary judgment shall be rendered if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). After adequate discovery, or after a case is set for trial, a motion which shows that there are no factual disputes and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966(C)(1). Although the burden of proof remains with the movant, if the movant will not bear the burden of proof at trial it is sufficient to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, the adverse party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. If he fails to do so, there is no genuine issue of material fact. A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery, and if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the dispute. Fossier v. Jefferson Parish, 07-926 (La.App. 5 Cir. 4/15/08), 985 So.2d 255. Appellate courts review summary judgments de novo using the same criteria applied by the 1 ñtrial courts to determine whether summary judgment is appropriate. Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865.

In the present case, plaintiffs theory is that the defendants were negligent in leaving the fold down metal steps in place at the trailer door, rather than building wooden steps with railings. She asserts that had wooden steps with railings been in place, the accident would not have occurred.

The defendants cite La. R.S. 9:2771, which provides that contractors are not liable for damages occasioned by any defect in the work undertaken if it is done in accordance with plans or specifications furnished to them. They point out that the ten pages of FEMA specifications applicable to travel trailer installations, which they were required to follow, have only one paragraph relating to steps. That paragraph begins by stating that “[i]f required, the Contractor shall install steps at each travel trailer entrance.” No provision in the specifications for travel trailers requires that wooden steps be installed. They further point to the FEMA “Ready for Occupancy” form for this specific trailer, which lists 30 items to be checked. Item 13 states: “[njote what type stairs are used (fold out, platform or wood),” and “fold out” is circled. They argue that if fold out stairs were to be replaced by wooden stairs, there would be ho option for fold out stairs in the final check off list. Finally, the defendants point out that for plaintiff to prevail, she would have to prove that the defendants did not perform the installation in accordance with the travel trailer specifications provided to them.

Plaintiff, for her part, points to certain FEMA specifications that require contractors installing manufactured homes to build wooden platforms and steps. However, FEMA has a completely separate set of specifications for the installation of travel trailers. Although plaintiff appears to use the terms “manufactured home” and “travel trailer” interchangeably, it is clear that they are two different types of 17housing units each having its own separate and distinct specifications for installation. Plaintiff has failed to produce any evidence to establish that the FEMA specifications for the installation of manufac[981]*981tured homes are applicable to a travel trailer such as the one where she fell.

Plaintiff further argues that the FEMA specifications for travel trailers require compliance with all local codes and ordinances and that Jefferson Parish by ordinance requires the installation of wooden steps. In support of this contention, plaintiff introduced pictures of various travel trailers in her neighborhood with wooden steps. However, plaintiff has never cited nor produced the particular ordinance that she claims requires the installation of wooden steps on travel trailers.

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Related

Thomas v. Willis-Knighton Medical Center
981 So. 2d 807 (Louisiana Court of Appeal, 2008)
Fossier v. Jefferson Parish
985 So. 2d 255 (Louisiana Court of Appeal, 2008)
Carr v. Wal-Mart Stores, Inc.
772 So. 2d 865 (Louisiana Court of Appeal, 2000)

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Bluebook (online)
87 So. 3d 977, 11 La.App. 5 Cir. 984, 2012 La. App. LEXIS 398, 2012 WL 1020642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fowler-v-harris-builders-llc-lactapp-2012.