Liberty Uhack and Joseph Jordain v. Lowe's Home Centers, Inc., National Union Fire Insurance Company of Pittsburgh, Pa, Patrick Garner, Nakia James, United Services Automobile Association and Abc Insurance Company

• Court: Louisiana Court of Appeal
• Decided: April 2, 2025
• Docket: 2024-CA-0407
• Status: Published

Opinion

LIBERTY UHACK AND * NO. 2024-CA-0407 JOSEPH JORDAIN * COURT OF APPEAL VERSUS * FOURTH CIRCUIT LOWE'S HOME CENTERS, INC., NATIONAL UNION FIRE * STATE OF LOUISIANA INSURANCE COMPANY OF PITTSBURGH, PA, PATRICK * GARNER, NAKIA JAMES, UNITED SERVICES * AUTOMOBILE ASSOCIATION ******* AND ABC INSURANCE COMPANY

RLB B BELSOME, C.J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent from the majority.

The issue before the trial court was whether there is a genuine issue of

material fact as to Reserve Deputy Patrick Garner’s (“Off. Garner”) employment

relationship with Lowe’s. Off. Garner was working security detail at the Lowe’s on

Elysian Fields Avenue the night of the incident. After suspecting Nakia James of

shop lifting, Off. Garner made the decision to pursue her off-site. An automobile

chase ensued, ending with a crash that injured innocent bystander Liberty Uhack

(“Uhack”). If Lowe’s indeed exercised control over Off. Garner as an employee,

then they owed a duty of care to Ms. Uhack through the doctrine of vicarious

liability.

For the following reasons, I find the granting of summary judgment

inappropriate.

At the outset, I address a procedural issue regarding this court’s

consideration of the deposition of Anthony Bickley (“Bickley”). Bickley was an

asset protection specialist and almost 20-year veteran of Lowe’s. Lowe’s

designated Bickley to testify pursuant to La. C.C.P. Art. 1442. On March 7, 2024, a day before the summary judgment hearing, Uhack’s

counsel filed a supplemental opposition to summary judgment with exhibits

attached. It included Bickley’s deposition.

Counsel for Lowe’s argues that the admission of this evidence on the record

was not timely filed. La. Code Civ. Proc. art 966(B)(2) states that “any opposition

to the motion and all documents in support of the opposition shall be filed ...not

less than 15 days prior to a hearing on the motion.”

What is lost on this court, is that a review of the summary judgment hearing

transcript reveals this supplemental evidence was introduced on the record and

Lowe’s did not contemporaneously object to its admission1. La. Code Evid. art.

103 provides that “error may not be predicated upon a ruling which admits or

excludes evidence unless …timely objection appears of record, stating the specific

ground of objection.” “[T]o preserve an evidentiary issue for appellate review, it is

essential that the complaining party enter a contemporaneous objection to the

evidence or testimony and state the reasons for the objection.” Danna v. Ritz-

Carlton Hotel Co., L.L.C., 20-0116 (La. App. 4 Cir. 3/24/21), 365 So. 3d 679, writ

denied, 21-00714 (La. 10/1/21), 324 So. 3d 1053, and writ denied, 21-00713 (La.

10/1/21), 324 So. 3d 1059. I find the evidence is properly before us on de novo

review.

Lowe’s contends Off. Garner was an independent contractor that was

employed by PROTOS, a security company. PROTOS was contracted to handle

and manage security guard hires for Lowe’s. Furthermore, PROTOS was the point

of contact and the entity that set out guidelines for each security worker. Lowe’s

relies on the precedent set out in Duronslet to support this contention.

1It is important to note that defense counsel did not object to the admission of the exhibits until they were also proffered at the motion for a new trial held on April 26, 2024. Duronslet created guidelines to determine if a hired worker is an

independent contractor or employee of a principal. There are a number of factors to

take into consideration. In part, factor 2 sets out that the contractor employs “non-

exclusive means” in accomplishing the work. Factor 3 states that “the contract calls

for specific piece work as a unit to be done according to the independent

contractor’s own methods, without being subject to control and direction of the

principal, except as to be the result of services to be rendered.” Duronslet v. Wal-

Mart Stores, Inc., 22-0019 (La. App. 4 Cir. 7/27/22), 345 So. 3d 1136.

Lowe’s provided all Contract Security Personnel (“CSPs”) and Contract

Law Enforcement (“CLEPs”) with a “do’s and don’ts” list to review before they

began employment. They had to consent to this list by initialing each “rule.”

Policies included that on patrol, CLEPs could only pursue those suspected of

illegal activity, if they personally witnessed the crime in progress. In addition,

CLEPs were the “exception” to armed security, but only with “prior approval” of

the Lowe’s Vice President of Loss, Prevention, Safety and Hazmat. It was

prohibited for security workers to fraternize with other store employees and

customers while working their shift at Lowe’s. Each was required to complete a

daily checklist, maintained on file at their assigned store of employment.

Lowe’s also required security workers to sign an employment agreement. It

stated that “parking lot security will be trained on Lowe’s current procedures as

well as any changes or updates to these procedures prior to being assigned to a

Lowe’s store.”2 Lowe’s Loss Prevention, Safety and Hazmat also directed

patrolling security to act “if they personally witness a crime in progress and contact

Law Enforcement for assistance while on duty for Lowe’s.”

2 This document was executed and signed by Lowe’s Staff and Off. Garner. As an asset protection specialist director for Lowe’s, Bickley’s duties

included providing leadership and guidance in the matters of safety and theft at the

locations in his region. Bickley testified that Lowe’s “upper-management

supervisors” had the authority to determine when and why certain guards were not

permitted to return to their assigned stores.

Bickley expounded on the Lowe’s guidelines for disengagement in the event

of suspected theft. He offered a contrary opinion from Lowe’s and PROTOS’

Master Service Agreement, that there was no difference between CSPs and CLEPs.

His deposition addressed Lowe’s internal “Do’s and Don’ts” document.

Bickley explained that Lowe’s policy was to provide one officer on patrol

per shift. The exception to this rule was the Elysian Fields store,3 the location

where the incident occurred. This particular location was a tier 6, the highest risk,

with the highest level of complaints, incidents of theft and danger. Lowe’s required

the Elysian Fields store to be equipped with one guard and one officer, because

there was “a lot of apprehension” at this location.

After considering the deposition of Anthony Bickley and his statements

about Lowe’s policies. I find reasonable minds could disagree as to whether the

security services were to be done according to PROTOS’ own methods, without

being subject to control and direction of Lowe’s. Stated differently, I find that a

genuine, material issue of fact exists as the whether there was an employee-

employer, or principal-independent contractor relationship between Lowe’s and

Off. Garner.

Based on the foregoing, I would reverse the trial courts granting of summary

judgment in Lowe’s favor and remand for further proceedings.

3 Store number 2470, Lowe’s located at 2501 Elysian Fields Avenue, New Orleans, La.