Isgitt v. State Farm Ins. Co.

156 So. 3d 669, 13 La.App. 3 Cir. 204, 2013 WL 5628873, 2013 La. App. LEXIS 2117
CourtLouisiana Court of Appeal
DecidedOctober 16, 2013
DocketNo. 13-204
StatusPublished

This text of 156 So. 3d 669 (Isgitt v. State Farm Ins. Co.) 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
Isgitt v. State Farm Ins. Co., 156 So. 3d 669, 13 La.App. 3 Cir. 204, 2013 WL 5628873, 2013 La. App. LEXIS 2117 (La. Ct. App. 2013).

Opinion

THIBODEAUX, Chief Judge.

| t Charles Isgitt, an employee of Lewing Construction, suffered a severe leg injury when he fell from a platform at a construction site on Leroy Cooley’s property. Mr. Isgitt alleges that the trial court erred in granting summary judgment to the defendants, Leroy Cooley and his insurer, State Farm Mutual and Casualty Company.

Specifically, Mr. Isgitt asserts that the trial court erred by ruling that: (1) Mr. Cooley could not be held liable for the contractor’s, Keith Lewing’s, negligence, because Mr. Lewing was an independent contractor; and (2) Mr. Cooley did not act negligently.

I.

ISSUE

We must decide whether the trial court erred in granting summary judgment in favor of Mr. Cooley.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Cooley and his wife entered into a construction contract with Keith Lewing, d/b/a Lewing Construction, to build a new home. Mr. Cooley testified that he knew Mr. Lewing to be an experienced, reputable builder.

Mr. Cooley gave Mr. Lewing permission to use a John Deere tractor which he owned. Mr. Cooley testified that, given Mr. Lewing’s vast experience operating tractors, backhoes, bulldozers, and other types of construction equipment, he did not feel it was necessary to provide Mr. Lewing with [¡.instructions regarding the use of the tractor. In the weeks leading up to the accident, Mr. Lewing and his crew used the tractor on numerous occasions.

On the date of the accident, Mr. Lewing was working on the soffits of the home. Feeling that he did not have sufficient scaffolding to reach the necessary height, Mr. Lewing and two other employees, including Mr. Isgitt, decided tp place a ladder on the tractor platform as a make-shift scaffold to reach the highest point of the house. Once the scaffolding was constructed, Mr. Isgitt climbed onto the platform. Mr. Lewing, who was operating the tractor, lifted the front-end loader to a height sufficient for Mr. Isgitt to reach the soffits. While Mr. Isgitt was on the ladder, Mr. Lewing attempted to leave the tractor’s cab to assist in gathering additional supplies for Mr. Isgitt. As he exited the tractor, Mr. Lewing’s tool belt hit the tractor’s lever, and the loader tilted. Mr. Isgitt fell to the ground and suffered severe injuries to his leg, which ultimately resulted in its partial amputation.

Following the accident, Mr. Isgitt filed a workers’ compensation claim against Mr. Lewing. Subsequently, Mr. Isgitt filed the present action, alleging that the comparative negligence of Mr. Lewing and Mr. Cooley led to Mr. Isgitt’s injuries. Mr. Cooley and State Farm filed exceptions of no right/no cause of action and motions for summary judgment asserting that Mr. Cooley owed no duty to Mr. Isgitt to pre[672]*672vent Mr. Isgitt’s employer, Mr. Lewing, from using the tractor in the manner that ultimately resulted in Mr. Isgitt’s injuries. The trial court entered judgment in favor of the defendants, and Mr. Isgitt now appeals.

Jain.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether a genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. If the mover will not bear the burden of proof at trial on the matter, then he must only present evidence showing a lack of factual support for one or more elements essential to the non-mover’s case. La.Code Civ.P. art. 966(C)(2); Simien v. Med. Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La.10/2/09), 18 So.3d 117. Once the mover has made a prima facie case that the motion should be granted, the non-mover must then present evidence sufficient to show a genuine issue of material fact. Id. If the non-mover fails to present some evidence that he might be able to meet his burden of proof at trial, the motion should be granted. Id.

Liability of Mr. Cooley as a Property Owner

Under Louisiana law, a principal is generally not liable for the offenses committed by an independent contractor while performing its contractual duties. Loftus v. Kuyper, 46,961 (La.App. 2 Cir. 3/14/12), 87 So.3d 963. Liability of the principal to an employee of the independent contractor for injuries sustained by the employee while performing the contract is limited by the application of this principle. This rule is subject to two exceptions. First, the principal may not avoid | ¿liability for injuries resulting from an ultra-hazardous activity by hiring out the work to an independent contractor. The second exception arises when the principal reserves the right to supervise or control the work of the independent contractor or gives express or implied authorization to an unsafe practice. Ewell v. Petro Processors of La., Inc., 364 So.2d 604 (La.App. 1 Cir.1978), writ denied, 366 So.2d 575 (La.1979).

An activity is considered ultra-hazardous if three conditions are present: the activity is related to land or some other immovable; the activity causes the injury and the defendant is directly engaged in the injury causing activity; and the activity can cause the injury even when conducted with great prudence and care. Davis v. Ins. Co. of North America, 94-698 (La.App. 1 Cir. 3/3/95), 652 So.2d 531, writ denied, 95-840 (La.5/5/95), 654 So.2d 334. The parties do not contend that no safe method existed through which the job could have been performed. Thus, the ultra-hazardous exception to non-liability of the principal does not apply in this case.

The first part of the second exception arises when the principal reserves the right to supervise or control the work of the independent contractor. Here, Mr. Cooley contracted with Mr. Lewing to build his new home. Mr. Cooley had no contractual relationship with Mr. Isgitt, and he did not supervise or exercise any control over Mr. Isgitt or his employer. Indeed; Mr. Cooley was not present at the job site on the day of the accident. We conclude that Mr. Cooley does not fall into this part of the second exception.

[673]*673The second part of the second exception arises when the principal gives express or implied authorization to an unsafe practice. Mr. Isgitt alleges that Mr. Cooley was aware of, and consented to, the loader being used as a work |5pIatform as it was on the day of the accident. The evidence does not support his claim. Indeed, Mr. Isgitt testified that the date of the accident was the first day that the tractor had been used in such a manner, and Mr. Cooley was not present at the site on the day of the accident. Moreover, Mr. Isgitt testified that, to his knowledge, Mr. Cooley did not assent to using the tractor as a platform for a ladder. Thus, the evidence supports Mr. Cooley’s claim that the day of the accident was the first time that the tractor had been used in such an unsafe manner. We find that Mr. Cooley is not liable for the actions of his independent contractor.

Independent Negligence

As an alternative theory of recovery, Mr. Isgitt alleges that Mr. Cooley acted negligently by: (1) failing to provide the tractor’s owner’s manual to Mr. Lewing and (2) consenting to the tractor’s unsafe use. We find no merit in Mr.

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156 So. 3d 669, 13 La.App. 3 Cir. 204, 2013 WL 5628873, 2013 La. App. LEXIS 2117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/isgitt-v-state-farm-ins-co-lactapp-2013.