Williams v. Gervais F. Favrot Co.

499 So. 2d 623, 1986 La. App. LEXIS 8511
CourtLouisiana Court of Appeal
DecidedDecember 9, 1986
DocketCA-5233
StatusPublished
Cited by55 cases

This text of 499 So. 2d 623 (Williams v. Gervais F. Favrot 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
Williams v. Gervais F. Favrot Co., 499 So. 2d 623, 1986 La. App. LEXIS 8511 (La. Ct. App. 1986).

Opinion

499 So.2d 623 (1986)

Susan Leonard WILLIAMS, et al.
v.
GERVAIS F. FAVROT COMPANY, et al.

No. CA-5233.

Court of Appeal of Louisiana, Fourth Circuit.

December 9, 1986.
Rehearing Denied January 15, 1987.
Writ Denied March 13, 1987.

*624 Charles A. Verderame, Giraud, Cusimano & Verderame, New Orleans, for appellants.

Terry J. Freiberger, Montgomery, Barnett, Brown, Read Hammond & Mintz, New Orleans, for defendant-appellee Westminster City Center Properties.

Curry & Blankenship, Rene A. Curry, Jr., New Orleans, for defendant-appellees Gervais F. Favrot Co., Inc. and Fidelity & Guar. Ins. Co.

Before SCHOTT, KLEES and BYRNES, JJ.

BYRNES, Judge.

Appellant, Susan L. Williams, appeals the dismissal of her tort suit against building owner, Westminster City Center Properties (Westminster) by summary judgment and the grant of a partial summary judgment dismissing her negligence claim, against building contractor, Gervais F. Favrot Company, Inc. (Favrot) but retaining her intentional tort claim. We affirm.

FACTS

On October 14, 1984, appellant's husband, Leon Williams, was employed as a steel worker by H & W Erectors (H & W). H & W was the sub-contractor hired by Favrot, the general contractor, to perform the steel reinforcement work required in the construction of a twenty-three story building owned by Westminster and located at 1615 Poydras Street in New Orleans. On this particular day, Williams and a co-worker were engaged in setting steel rebar cages in place on the twenty-second floor to provide structural support to cement columns which were poured and formed around the steel work. The normal procedure required H & W employees to attach the base of a steel rebar cage to the top of the column which protruded from the floor below. This cage was lifted into place by a crane operated by Favrot personnel. A column "form" was then lowered over the rebar cage. The form was used to shape and hold wet cement around the steel rebar cage until the cement hardened. Favrot employees set the form in place and secured it with braces. Concrete was then poured into the form. This procedure was followed on the first twenty-one stories of the construction.

Because the column on the twenty-second floor had to support a roof, the steel rebar cages for this floor were designed to flare out at the top, allowing for attachment to the structural steel in the roof. This modification necessitated a change in the construction procedure since the column form could not be lowered over the flared rebar cages. Officials from Favrot and H & W met and decided to try a procedure by which the form was placed in position first, and the steel rebar cage was then lowered into it. After this, the cement would have been poured as usual.

For the first trial of this procedure, an outside column was chosen and the form set in place. Williams was positioned atop the form to guide the rebar cage and a co-worker rode the steel cage into the form to release the hoist hooks and attach the rebar to the floor. No bracing secured the form during this trial. As a result, when one of the hooks bumped the unbraced form, it tumbled off the building and fell to the ground below, carrying both men to their deaths.

*625 LIABILITY OF WESTMINSTER

The appellant contends that the trial court erred in granting a summary judgment in favor of Westminster because it was liable as owner of the building for damages caused by the fault of any of its agents or contractors. We do not agree.

As a general rule, property owners are not liable for the negligence of independent contractors who are performing work for the owner. In determining whether the person performing the work is an employee or an independent contractor the focus of the inquiry is directed at gauging the degree of the contractor's independence or subserviency. Davidson v. American Drug Store, 175 So. 157 (La.App. Orleans 1937). Factors which are relevant to this inquiry include the independent nature of the contractor's business, the existence of a contract for performance of a specific job, payment of a fixed price for the work, employment by the contractor of assistants who are under his control, the furnishing of necessary tools and materials by the contractor and his right to control the conduct of his work while in progress. Lacaze v. Beeson, 44 So.2d 493 (La.App. 1st Cir. 1950). The most important of these factors is the degree of control which the owner can exercise over how the contractor performs the work. Olano v. Leathers, 2 So.2d 486 (La.App. 1st Cir.1941). Thus, where the contract provides that the owner's control over the contractor is limited to providing plans and specifications and his only right is to insist that the job be performed in accordance with those plans and specification, an independent contractor relationship exists and the owner is not vicariously liable for the contractor's negligence. Crutti v. Frank, 146 So.2d 474 (La.App. 4th Cir.1962); Arledge v. Royal Globe Insurance Co., 401 So.2d 615 (La. App. 3rd Cir.1981).

This general rule of non-liability has two exceptions: first, the owner may not avoid liability if the work undertaken by the independent contractor is inherently or intrinsically dangerous; second, the owner may be held liable if he exercises control over the contractor's methods of operation or gives express or implied authorization to an unsafe practice. Ewell v. Petro Processors of La. Inc., 364 So.2d 604 (La.App. 1st Cir. 1978) writ denied 366 So.2d 575 (La.1979). Applying these principles to the facts of this case, we must first determine if Favrot was an independent contractor.

In support of its motion for summary judgment, Favrot introduced its contract with Westminster which provided among other things that:

The contractor shall furnish all supervision, labor, materials, tool supplies, plant and equipment, transportation and services and to do all things necessary for the full, complete and proper construction and completion of the work shown and described in this contract.
The contractor, being fully responsible for the general management of the construction operation, shall have full directing authority over the execution of the subcontracts ...
The contractor shall provide a competent field engineer and services to execute the work in accordance with this agreement and the contract documents ...

Westminster also introduced the General Conditions which formed a part of the Building Contract. Among these conditions were the following:

The contractor shall supervise and direct the Work, using his best skill and attention. He shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the contract.
The contractor shall employ a competent superintendent and necessary assistance who shall be in attendance at the project site during the progress of the work ...

Finally, the affidavit of Theodore Garrison, the vice-president of Coleman Development Company (the managing agent of properties owned by Westminster) and the deposition of Ira Williams (president of H & W) were submitted by Westminster. These affidavits conclusively established *626

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Bluebook (online)
499 So. 2d 623, 1986 La. App. LEXIS 8511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-gervais-f-favrot-co-lactapp-1986.