Opinion
No. 2010 CA 1638.
March 25, 2011.
APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LIVINGSTON STATE OF LOUISIANA DOCKET NUMBER 110391 THE HONORABLE M. DOUGLAS HUGHES, JUDGE PRESIDING.
Donald G. Cave, Baton Rouge, LA, Counsel for Plaintiff/Appellant, Wendell McCarroll, Jr.
Sue Buser, Metairie, LA, Sherman Q. Mack, Albany, LA, Counsel for Defendant/Appellee, Prime Cut Lawn Care and Tractor, Work, L.L.C. and John K. Bankston.
Keith S. Giardina, Baton Rouge, LA, Counsel for Defendant/Appellee, Liberty Mutual and Raymond Diaz.
David B. Parnell, Jr., Thomas G. Buck, Metairie, LA, Counsel for Defendant/Appellee, First Financial.
BEFORE: WHIPPLE, McDONALD, AND McCLENDON, JJ.
This matter is before us on appeal by plaintiff, Wendell McCarroll, Jr., from a judgment of the trial court granting summary judgment and dismissing plaintiff's claims against Raymond Diaz and his homeowner insurer, Liberty Mutual Insurance Company (hereinafter referred to as "Liberty Mutual"). For the reasons that follow, we affirm the judgment of the trial court.
Liberty Mutual Insurance Company was substituted for C.N.A. Insurance by amended petition.
FACTS AND PROCEDURAL HISTORY
The deposition testimony in the record offered in support of and in opposition to summary judgment establishes that after Hurricane Katrina, Mr. Diaz hired John Bankston, Jr. to perform debris removal and clean-up services of his yard and driveway at his home in Folsom, Louisiana, where Diaz had 300 to 400 long leaf pine trees, of which approximately 80 to 90 had been damaged by the storm. Bankston, who had a lawn care and landscaping business, Prime Cut Construction, had previously worked for Diaz by cutting grass at his business for approximately three years when he approached Diaz at his office and offered his services. Before any work began, Bankston and Diaz discussed the job and Diaz drafted a sketch of what work was to be done and gave it to Bankston. Bankston went to Diaz's home to inspect the property, and Bankston and Diaz agreed upon a price for the job. Plaintiff, who had worked for Bankston cutting grass for a few months, was asked by Bankston after Hurricane Katrina to work with him cutting trees.
Although the petition lists the name of Bankston's business as "Prime Cut Lawn Care and Tractor Work, L.L.C.," Bankston testified that the name of his business is actually "Prime Cut Construction."
On September 22, 2005, Bankston and a crew of five workers, including plaintiff, began clearing up the debris and fallen trees in Diaz's yard and hauling it to the front of Diaz's property and forming large debris piles. Diaz was not home at the time. Three or four trees near Diaz's house had been "topped out," where the top of the tree broke off during the storm and was hanging from the tree's trunk. Bankston, who was operating the tractor, cut three of the "topped out" trees' tops down by tying a rope around each tree and putting a tractor against it. Throughout the day, plaintiff had been working on cutting one "topped out" tree that was located away from everyone. Despite Bankston's instruction to plaintiff that he was not to cut down trees, and his previous warning to plaintiff to stay away from the particular tree plaintiff had been attempting to cut down, plaintiff continued to cut on the tree and was ultimately injured when a portion of the tree fell over and struck plaintiff on the back of the head.
According to the deposition testimony, plaintiff initially attempted to cut it down with a chain saw, then, began to use a maul and a wedge he had retrieved from Bankston's truck to hit the tree. Plaintiff would hit the tree, then run away from it. After several attempts by plaintiff, a portion of the tree finally fell over and plaintiff was hit on the head while running away from the falling tree.
As a result of injuries sustained by plaintiff, on January 9, 2006, plaintiff filed suit against Diaz and his homeowner's insurer, Liberty Mutual, and Bankston, Prime Cut Lawn Care Tractor Work, L.L.C., and their insurer, First Financial Insurance Company (hereinafter referred to as "First Financial"). In his petition for damages, plaintiff asserted a cause of action against Diaz in negligence under Louisiana Civil Code article 2315 and strict liability under Louisiana Civil Code articles 2317 and 2317.1. Specifically, plaintiff alleged that Diaz was negligent in: (1) failing to remedy a known defective condition on his property; (2) placing all invitees in peril by requesting that they assist the defendants with removal of known hazards when said invitees do not have the requisite skill, training, licensing, manpower, or equipment to perform the requested services; (3) maintaining areas of his residential premises in a hazardous condition; (4) failing to warn invitees of the known dangers and defective nature of areas of their residential premises; and (5) failing to require that the work he was requesting be performed by persons with the required licensing and training.
First Financial was subsequently added as a defendant herein by an amended petition.
On June 28, 2006, Diaz and Liberty Mutual filed a motion for summary judgment, contending that the risk of harm was apparent to all parties and that the tree did not pose an unreasonable risk of harm. Thus, the defendants owed no duty to plaintiff to protect him from such harm. Diaz and Liberty Mutual further contended that because plaintiff was hired by and was working for Bankston, an independent contractor, Diaz did not owe him a duty to protect from risks inherent to the job. Moreover, they contended that Diaz never requested that plaintiff work with Bankston, nor is there any evidence to establish that Diaz knew that Bankston was allegedly incapable of performing the work he was hired to complete. The motion was denied by the trial court on April 2, 2007.
On January 4, 2010, Diaz and Liberty Mutual re-urged their motion for summary judgment after a factually similar case on review of summary judgment, Herrera v. United Fire Casualty Company, 2009-256 (La. App. 5th Cir. 10/27/09), 27 So. 3d 919, writ denied, 2009-2578 (La. 2/5/10), 27 So. 3d 303, was handed down by the Fifth Circuit Court of Appeal. First Financial also filed a motion for summary judgment. The trial court heard argument on both motions for summary judgment on March 29, 2010, after which it granted the motion for summary judgment filed by Diaz and Liberty Mutual and denied the motion for summary judgment filed by First Financial. Separate judgments were submitted by the parties and signed by the trial court.
Plaintiff filed the instant appeal of the April 9, 2010 judgment granting summary judgment and dismissing plaintiff's claims against Diaz and Liberty Mutual.
SUMMARY JUDGMENT LAW
The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art 966(B).
The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. LSA-C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B).
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So. 2d 764, 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 2000-2507 (La. 12/8/00), 775 So. 2d 1049, 1050.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. See Barnett v. Watkins, 2006-2442 (La. App. 1st Cir. 9/19/07), 970 So. 2d 1028, 1033, writ denied, 2007-2066 (La. 12/14/07), 970 So. 2d 537. Material facts are those that potentially insure or preclude recovery, affect the litigant's success, or determine the outcome of a legal dispute. Populis v. Home Depot, Inc., 2007-2449 (La. App. 1st Cir. 5/2/08), 991 So. 2d 23, 25, writ denied, 2008-1155 (La. 9/19/08), 992 So. 2d 943. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Bezet v. Original Library Joe's, Inc., 2001-1586 (La. App. 1st Cir. 11/08/02), 838 So. 2d 796, 800.
To the extent that plaintiff contends in brief that this court's standard of review on appeal is the manifest error standard of review, we note that our appellate standard of review of a trial court's grant of summary judgment is de novo.
DISCUSSION
On appeal, plaintiff contends that genuine issues of material fact exist as to Diaz's liability under the theory of "strict liability," pursuant to LSA-C.C. arts. 2317 and 2317.1, as the owner of property having an unreasonably dangerous condition or defect, and under the theory of general negligence under LSA-C.C. art. 2315.
With reference to plaintiff's allegation that Diaz is liable under a theory of "strict liability," we note that the legislation enacting LSA-C.C. art. 2317.1, effective April 16, 1996, abolished the concept of strict liability governed by prior interpretations of LSA-C.C. art. 2317. Since that date, a more appropriate term for liability under Articles 2317 and 2317.1 is seemingly "custodial liability," which now requires a finding of actual or constructive knowledge on behalf of the defendant. Morgan v. City of Baton Rouge, 2006-0158 (La. App. 1st Cir. 4/4/07), 960 So. 2d 1013, 1016 n. 1, writ denied, 2007-1239 (La. 9/21/07), 964 So. 2d 342; Moss v. State, 2007-1686 (La. App. 1st Cir. 8/8/08), 993 So. 2d 687, 693 n. 3, writ denied, 2008-2166 (La. 11/14/08), 996 So. 2d 1092. Thus, to the extent that plaintiff relies on pre-amendment jurisprudence in his brief regarding recovery under the theory of strict liability, plaintiff is in error. See also Jackson v. Brumfield, 2009-2142 (La. App. 1st Cir. 6/11/10), 40 So. 3d 1242, 1243. Such liability is nevertheless predicated upon a finding of negligence. Rogers v. City of Baton Rouge, 2004-1001 (La. App. 1st Cir. 6/29/05), 916 So. 2d 1099, 1102, writ denied, 2005-2022 (La. 2/3/06), 922 So. 2d 1187.
In general, the owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. Bozeman v. Scott Range Twelve Limited Partnership, 2003-0903 (La. App. 1st Cir. 4/2/04), 878 So. 2d 615, 619, writ not considered, 2004-1945 (La. 11/8/04), 885 So. 2d 1142. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. Vinccinelli v. Musso, 2001-0557 (La. App. 1st Cir. 2/27/02), 818 So. 2d 163, 165, writ denied, 2002-0961 (La. 6/7/02), 818 So. 2d 767. This duty is the same under the strict liability theory of LSA-C.C. art. 2317 and the negligence liability theory of LSA-C.C. art. 2315. Williams v. Leonard Chabert Medical Center, 98-1029 (La. App. 1st Cir. 9/26/99), 744 So. 2d 206, 209, writ denied, 2000-0011 (La. 2/18/00), 754 So. 2d 974. Under either theory, the plaintiff has the burden of proving that: (1) the property that caused the damage was in the "custody" of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Vinccinelli, 2001-0557, 818 So. 2d at 165.
A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. Rando v. Anco Insulations, Inc., 2008-1163, 2008-1169 (La. 5/22/09), 16 So. 3d 1065, 1086.
In general, defendants may have no duty to protect against an open and obvious hazard. Bozeman v. Scott Range Twelve Limited Partnership, 878 So. 2d at 619. 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. Pitre v. Louisiana Tech University, 95-1466, 95-1487, (La. 5/10/96), 673 So. 2d 585, 591, cert. denied, 519 U.S. 1007, 117 S. Ct. 509, 136 L.Ed.2d 399 (1996). The degree to which a potential victim may observe a danger is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury that results from a condition that should have been observed by the individual in the exercise of reasonable care or was as obvious to a visitor as it was to the landowner. Bozeman v. Scott Range Twelve Limited Partnership, 878 So. 2d at 619.
On appeal, in support of their motion for summary judgment, Diaz and Liberty Mutual, relying on Herrera v. United Fire Casualty Company, 2009-256 (La. App. 5th Cir. 10/27/09), 27 So. 3d 919, writ denied, 2009-2578 (La. 2/5/10), 27 So. 3d 303, contend that Diaz did not have a duty to warn plaintiff of certain conditions or defects in the trees where plaintiff was specifically hired to remedy those very conditions or defects. In the Herrera case, the plaintiff, Herrera, who was not a tree trimmer by profession, but had trimmed trees on at least one other occasion, was asked by the homeowner, Montero, who was an acquaintance, to trim a tree in her yard that had become tangled in an overhead cable. Herrera went to the home to inspect the tree and agreed to cut the branches. He returned the next day with his own ladder and chain saw. Herrera and Montero discussed the use of a safety harness, but Herrera decided one was not necessary. When Herrera cut the branch, it fell in such a way that it caused both Herrera and the ladder to fall to the ground, resulting in the injuries sustained by Herrera and complained of in his petition. Herrera filed suit against Montero and her homeowners' insurer contending that she was liable for his injuries. Herrera v. United Fire Casualty Company, 27 So. 3d at 920. Thereafter, the trial court granted summary judgment in favor of the homeowner and her insurer.
On appeal, the Louisiana Fifth Circuit Court of Appeal affirmed the judgment of the trial court, ruling as follows:
[The fact t]hat Herrera was not a "professional" tree cutter is a distinction without a difference. Montero clearly engaged plaintiff to remedy the very condition, the branch tangled in the cable, which plaintiff now claims Montero failed to warn him of. It is clear that Herrera knew the branch was tangled in the cable because he was there to eliminate it. Herrera agreed to perform the work only following his inspection of the tree, did so with his own equipment, and performed the work under his own direction. What he may not have appreciated is how the tree branch would fall once he cut it, but that result of his own actions does not create a duty owed by Montero to him.
* * * * *
In the instant case, the complained-of condition, the branch tangled in the cable, was open and obvious, and it is undisputed that the plaintiff knew about it, since he was there to cut the branch away from the cable.
Herrera v. United Fire Casualty Company, 27 So. 3d at 922.
In the instant case, it is undisputed that Diaz hired Bankston to clean up storm debris from trees and brush in his driveway and around the house. Bankston and his crew went to Diaz's property to inspect it before accepting the job. Bankston had performed lawn care services for Diaz for three years prior to accepting this particular job. Bankston had performed several similar storm-debris clean-up jobs at other homes in Covington before accepting Diaz's job. Further, Bankston and his crew used Bankston's equipment consisting of a bobcat, Kubota tractor, truck, and trailers.
To the extent that Bankston acted as an independent contractor for Diaz, we note that in a principal-independent contractor relationship, the principal does not owe a duty to protect the contractor's employees from risks inherent in the job. See Perkins v. Gregory Manufacturing Company, 95-01396 (La. App. 3rd Cir. 3/20/96), 671 So. 2d 1036, 1040, writ denied, 96-0971 (La. 5/31/96), 673 So. 2d 1039. In Perkins, the appellate court affirmed the trial court's grant of summary judgment in favor of a landowner where a tree trimmer employed by an independent contractor was injured by a falling tree on the landowner's property. The appellate court noted, "[T]he harm that befell Perkins, a tree fell on him, is a danger inherent with the job of a tree trimmer and a risk associated with a logging operation." Perkins v. Gregory Manufacturing Company, 671 So. 2d at 1040.
On review of the evidence set forth herein and considering Herrera, we find that Diaz had no duty to warn plaintiff of, or protect plaintiff from, hazards relating to the very condition which he was hired to address and remedy. Although it is unfortunate that plaintiff was injured while performing a particular task that he was warned not to perform on more than one occasion by his employer, Bankston, his careless actions do not create a duty on the part of the homeowner to plaintiff where the hazard complained of herein was open and obvious and formed the basis of the very reason plaintiff was on the property. See Herrera v. United Fire Casualty Company, 27 So. 3d at 922.
In response to the showing by Diaz and Liberty Mutual that Diaz owed plaintiff no duty herein, plaintiff contends that material issues of fact remain as to the extent of the job duties agreed upon by Bankston and Diaz and as to Bankston's experience in debris removal, which preclude the grant of summary judgment. Specifically, plaintiff argues that Bankston's testimony that Diaz requested that the "topped off' trees near the house that were hanging over be cut down contradicts Diaz's testimony that he asked Bankston to only remove trees that were already down. Further, plaintiff contends that Diaz was negligent in knowingly hiring Bankston to remove the debris on his property when he knew that Bankston was "obviously inexperienced."
Plaintiff argues that the instant case differs from Herrera where the underlying facts were undisputed. To the extent, however, that plaintiff argues that summary judgment is not appropriate herein as certain facts are "disputed," we note that the facts that plaintiff contends are disputed are not material facts that potentially insure or preclude recovery, affect the litigant's success, or determine the outcome of a legal dispute. See Populis v. Home Depot, Inc., 991 So. 2d at 25. For example, if the agreement between Diaz and Bankston did not include cutting the tops down from the "topped off" trees as Diaz testified, then plaintiff's actions of cutting the hanging tree top down from the tree, despite being told not to, was outside the scope of the job agreement herein. If the agreement provided for cutting down the hanging tree tops as Bankston testified, then plaintiff was performing a task that he was specifically hired to do, where the complained-of condition was open and obvious, and Diaz accordingly had no duty to warn plaintiff of it. See Herrera v. United Fire Casualty Company, 27 So. 3d at 922. Thus, even if we were to find that these facts are in dispute, they are immaterial to the outcome of this legal dispute, as Diaz has shown that he had no duty herein, i.e., to warn plaintiff of the very condition he hired plaintiff to remedy.
Further, with reference to plaintiff's argument that Diaz was negligent in hiring Bankston, the evidence set forth by Diaz and Liberty Mutual shows that Bankston engaged Diaz to perform storm-debris removal and tree-cutting services. According to Bankston's own testimony, Bankston represented himself as a tree cutter, he and his crew inspected Diaz's property before accepting the job, and he had performed other tree-cutting jobs. Moreover, Bankston had performed lawn care services for Diaz for three years prior to this job. Where the principal has previously hired the contractor with good results, and there is no evidence in the record to demonstrate the principal's prior negligent hiring practices, a claim for negligent hiring falls. See Perkins v. Gregory Manufacturing Company, 671 So. 2d at 1040.
Diaz did not specifically ask Bankston if he had a professional license to cut down trees for this particular job; however, the evidence established that Diaz had required that Bankston show him proof of insurance for his lawn care business in the past.
Although plaintiff countered with his own self-serving testimony that he had no experience in cutting trees, Diaz had no knowledge of this when he hired Bankston to perform the debris removal work on his property. Thus, because plaintiff failed to demonstrate that he can satisfy his evidentiary burden at trial, we find the trial court correctly dismissed plaintiff's claim of negligent hiring.
Accordingly, finding no merit to plaintiff's assignments of error, we find on review that the trial court correctly granted Diaz and Liberty Mutual's motion for summary judgment.
CONCLUSION
For the above and foregoing reasons, the April 9, 2010 judgment of the trial court, granting summary judgment in favor of Raymond Diaz and Liberty Mutual Insurance Company and dismissing plaintiff's claims against them, is affirmed. Costs of this appeal are assessed to the plaintiff/appellant, Wendell McCarroll, Jr.