Opinion
No. 10-168.
October 6, 2010.
I respectfully dissent from the majority decision. Unlike the trial court and majority, which restrict the duty question to the issue of whether the defendant had a duty to assist strapping the load, I find that the defendant owed a broader duty to allow the plaintiff to strap down the pipe joints in a safe manner. In my view, the question is not simply whether the defendant should have provided workers to assist the plaintiff. Rather, the question is whether the defendant should have forced the plaintiff to move from the loading dock, with its attendant handrails and walkways, to secure his load, and required him to complete the strapping process where those aids did not exist. On this point, I find genuine issues of material fact.
In his deposition submitted in opposition to the defendant's motion for summary judgment, the plaintiff stated:
They put us on the side of these racks [at the loading area]. There is [sic] stairwells on them and there is [sic] handrails. . . . We pull up along there when they load us. That way if we do need to get up there we can be along this (indicating). Okay. You can get your trailer about this far (indicating) from . . . that walkway. Real nice setup. And I know they didn't have that there [i.e., at the front of the yard away from the loading dock]. . . . And if they would have this wouldn't have happened.
Clearly, the defendant alone had the authority to decide where the load would be strapped down and what structures in the yard could be used. Accordingly, I would find The Bayou Companies, LLC, owed a broader duty to provide the plaintiff with a reasonably safe opportunity to load before leaving the defendant's yard. Whether or not the defendant breached that duty is a question for another day. Therefore, I would reverse the summary judgment and remand this matter to the trial court for further proceedings.