Rachal v. Audubon Park Commission

Louisiana Court of Appeal

Rachal v. Audubon Park Commission

543 So. 2d 609, 1989 La. App. LEXIS 830, 1989 WL 47935

CourtLouisiana Court of Appeal

DecidedMay 9, 1989

DocketNo. 88-CA-0643

StatusPublished

Cited by1 cases

This text of 543 So. 2d 609 (Rachal v. Audubon Park Commission) 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.

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Rachal v. Audubon Park Commission, 543 So. 2d 609, 1989 La. App. LEXIS 830, 1989 WL 47935 (La. Ct. App. 1989).

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GARRISON, Judge.

Plaintiff, Frank Rachal, appeals a summary judgment in favor of defendant, the City of New Orleans (the City). He was employed as a laborer by Handiman Industrial Services, which was under contract to provide periodic grounds maintenance for the Audubon Park Commission. While on this assignment in July, 1981, plaintiff was thrown from a truck and sustained serious injury.

Plaintiff filed suit against several defendants, including the Audubon Park Commission and the City. On a motion for summary judgment, the Audubon Park Commission was found to be plaintiff’s statutory employer under LSA-R.S. 23:1061, and the tort action against it was dismissed. This court upheld that ruling in Rachal v. Audubon Park Commission, 467 So.2d 1281 (La.App. 4th Cir.1985). The City subsequently filed a motion for summary judgment on the grounds that it, through the Audubon Park Commission, also was the plaintiff’s statutory employer. The trial court ruled that the Audubon Park Commission is an agency and municipal commission of the City and granted the City’s motion. After considering the pleadings, affidavits and applicable law, we reverse.

The court below relied upon affidavits which alleged that the Audubon Park Commission looked to the City for its employees’ pay, insurance benefits and worker’s compensation benefits. Even if those affidavits are taken as true, the facts alleged in the affidavit do not necessitate a conclusion that the plaintiff is not in a position on a motion for summary judgment to develop other considerations which weigh against such a finding.

Even assuming argendo, that the Commission does have this subsidiary relationship with the City, there still remains the question of whether that “relationship” would extend Audubon’s statutory employer status to the City, although the City obviously cannot independently meet the Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986) test.

Without more, we cannot agree that there is no genuine issue as to a material fact, and that mover is entitled to a judgment as a matter of law.

For these reasons, we reverse the trial court judgment granting the motion for summary judgment filed by the City of New Orleans. This case is remanded to the trial court for trial on the merits.

REVERSED AND REMANDED.

WILLIAMS, J., dissents with reasons.

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GARRISON, Judge.

Plaintiff, Frank Rachal, appeals a summary judgment in favor of defendant, the City of New Orleans (the City). He was employed as a laborer by Handiman Industrial Services, which was under contract to provide periodic grounds maintenance for the Audubon Park Commission. While on this assignment in July, 1981, plaintiff was thrown from a truck and sustained serious injury.

Plaintiff filed suit against several defendants, including the Audubon Park Commission and the City. On a motion for summary judgment, the Audubon Park Commission was found to be plaintiff’s statutory employer under LSA-R.S. 23:1061, and the tort action against it was dismissed. This court upheld that ruling in Rachal v. Audubon Park Commission, 467 So.2d 1281 (La.App. 4th Cir.1985). The City subsequently filed a motion for summary judgment on the grounds that it, through the Audubon Park Commission, also was the plaintiff’s statutory employer. The trial court ruled that the Audubon Park Commission is an agency and municipal commission of the City and granted the City’s motion. After considering the pleadings, affidavits and applicable law, we reverse.

The court below relied upon affidavits which alleged that the Audubon Park Commission looked to the City for its employees’ pay, insurance benefits and worker’s compensation benefits. Even if those affidavits are taken as true, the facts alleged in the affidavit do not necessitate a conclusion that the plaintiff is not in a position on a motion for summary judgment to develop other considerations which weigh against such a finding.

Even assuming argendo, that the Commission does have this subsidiary relationship with the City, there still remains the question of whether that “relationship” would extend Audubon’s statutory employer status to the City, although the City obviously cannot independently meet the Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986) test.

Without more, we cannot agree that there is no genuine issue as to a material fact, and that mover is entitled to a judgment as a matter of law.

For these reasons, we reverse the trial court judgment granting the motion for summary judgment filed by the City of New Orleans. This case is remanded to the trial court for trial on the merits.

REVERSED AND REMANDED.

WILLIAMS, J., dissents with reasons.

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543 So. 2d 609, 1989 La. App. LEXIS 830, 1989 WL 47935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rachal-v-audubon-park-commission-lactapp-1989.

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