Thomas v. Hunting Ingalls, Inc.

210 So. 3d 454, 16 La.App. 5 Cir. 474, 2016 La. App. LEXIS 2318
CourtLouisiana Court of Appeal
DecidedDecember 21, 2016
DocketNO. 16-CA-474
StatusPublished
Cited by2 cases

This text of 210 So. 3d 454 (Thomas v. Hunting Ingalls, 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
Thomas v. Hunting Ingalls, Inc., 210 So. 3d 454, 16 La.App. 5 Cir. 474, 2016 La. App. LEXIS 2318 (La. Ct. App. 2016).

Opinion

WINDHORST, J.

| Appellant, Jerilyn Thomas, seeks review of the trial court’s judgment granting appellee’s, Huntington Ingalls Incorporated’s, motion for summary judgment dismissing plaintiff’s claims against appellee with prejudice. For the reasons that follow, we affirm.

Facts and Procedural History

The following facts are undisputed for the purpose of the motion for summary judgment. Pinkerton Government Services, Inc, (“Pinkerton”) had a contract for security and related personnel services with appellee. Appellant was working as a Pinkerton security guard on board a U.S. Navy vessel, the LPD-23, which was under construction by appellee. Appellant’s duties included patrolling the vessel and “keying” in at various locations on the vessel with her “Detex Key Wand.” Appellant testified that they were shorthanded on January 16, 2012, and she had a limited amount of time to key her locations before she had to open Gate 38 at 11:00 P.M for the personnel shift change. She was walking from the upper deck to the second level when she noticed that the second level had no lights and was dark. She did not have a flashlight and her helmet did not have a light. Appellant had a radio with her but she did not radio her supervisor about the darkness on the second level because the radio “doesn’t work on the ship.” Nevertheless, appellant decided to go down the stairs to check in the various key locations on that level. When she was almost to the bottom of the stairs she “missed a step,” fell, and injured her head, back and knee. After she fell, she went up the stairs and to the back of [457]*457the vessel where she was able to radio her supervisor and inform him about her fall.

Appellant filed this lawsuit against ap-pellee contending that there were no lights on the second level and the darkness caused her to miss a step and fall. She claimed that had appellee notified her of the areas that were dark, she would have |2avoided those areas. Appellee filed an answer and subsequently filed this motion for summary judgment. In the motion for summary judgment, appellee argued that darkness is an open and obvious condition; and therefore, appellee had no duty to warn appellant of the dark. Appellee further contended that it had no duty to warn appellant because under the contract between appellee and Pinkerton, appellant’s specific job duties included informing ap-pellee about any lighting problems aboard the vessel, and appellant was therefore required to carry a flashlight, which she failed to do. The trial court granted appel-lee’s motion. This appeal followed.

Discussion

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-863 (La. 11/29/06), 950 So.2d 544, 547; Rayfield v. Millet Motel, 15-496 (La.App. 5 Cir. 01/27/16), 185 So.3d 183, 185; Bailey v. Exxon Mobil Corp., 15-225 (La.App. 5 Cir. 12/23/15), 184 So.3d 191, 198. A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966B(2).1 The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966C(2). However, if the mov-ant will not bear the burden of proof at trial, the movant’s burden on a | ^motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the claim. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment should be granted. Id.

To establish liability for damages in a negligence case, the plaintiff is required to prove: (1) that the defendant had a duty to conform his conduct to a specific standard; (2) that the defendant’s conduct [458]*458failed to conform to the appropriate standard; (3) that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) proof of actual damages. La. C.C. art. 2315; Helwig v. H.P.B. Inc., 15-389 (La.App. 5 Cir. 12/23/15), 182 So.3d 1169, 1171 (citing Detraz v. Lee, 05-1263 (La. 01/17/07), 950 So.2d 557, 565).

La. C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, to prove liability for an unreasonably dangerous defect, a plaintiff has the burden to show that the thing was in the custodian’s custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm and the damage was caused by the defendant. La. C.C. art. 2317.1; Helwig, 182 So.3d at 1171.

To determine whether a condition is unreasonably dangerous, courts are required to consider the following factors in the risk-utility test: (1) the utility of the complained of condition, (2) the likelihood and magnitude of harm, including |4the obviousness and apparentness of the condition, (3) the cost to prevent the harm, and (4) the nature of the plaintiffs activities in terms of social utility or whether the activities were dangerous by nature. Bufkin v. Felipe’s La., LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856; Dauzat v. Curnest Guillot Logging Inc., 08-0528 (La. 12/02/08), 995 So.2d 1184, 1186-87 (per curiam).

The second prong of the risk-utility test focuses on whether the allegedly dangerous or defective condition was obvious and apparent, because a defendant generally does not have a duty to protect against that which is obvious and apparent. In order for an alleged hazard to be considered obvious and apparent, the hazard should be one that is open and obvious to everyone who may potentially encounter it. Bufkin, 171 So.3d at 856; Broussard v. State ex rel. Office of State Buildings, 12-1238 (La. 04/05/13), 113 So.3d 175, 184; Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La. 02/20/04), 866 So.2d 228, 234. If the facts of a particular case show that the. complained of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Upton v. Rouse’s Enter., LLC, 15-484 (La. App. 5 Cir. 02/24/16), 186 So.3d 1195, 1200.

In her first assignment of error, appellant contends that the trial court erred in considering inadmissible evidence at the motion for summary judgment hearing. Appellant contends the trial court made improper and impermissible factual findings in ruling on the motion and improperly weighed evidence and testimony.

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Bluebook (online)
210 So. 3d 454, 16 La.App. 5 Cir. 474, 2016 La. App. LEXIS 2318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-hunting-ingalls-inc-lactapp-2016.