94-1159 La.App. 3 Cir. 3/22/95, Touchet v. Estate of Bass

• Court: Court of Appeal of Louisiana
• Writing for the Court: Before DOUCET; SAUNDERS
• Citation: 94-1159 La.App. 3 Cir. 3/22/95, Touchet v. Estate of Bass, 653 So.2d 83 (La. App. 1995)
• Decision Date: 22 March 1995
• Parties: 94-1159 La.App. 3 Cir

Page 83

653 So.2d 83

94-1159 La.App. 3 Cir. 3/22/95

Jacob R. TOUCHET, et al., Plaintiffs-Appellants, v. ESTATE OF Constance M. BASS, et al., Defendants-Appellees.

No. 94-1159.

Court of Appeal of Louisiana Third Circuit.

March 22, 1995.

Writ Denied June 2, 1995.

James Paul Lambert, Lafayette, for Jacob R. Touchet et al.

Raymond C. Jackson, III, Lafayette, for Estate of Constance M. Bass, et al.

Andrew Duke McGlathery, III, Lake Charles, for Edward F. Bass.

Skipper M. Drost, Sulphur, for Stine Lumber Co.

Rick J. Norman, Lake Charles, for L.L. Brewton Lumber Co. & Westchester.

James E. Diaz, Lafayette, for Deltic Farm & Timber Co.

William J. Hamlin, New Orleans, for Intern. Paper Co.

Before DOUCET, C.J., and KNOLL and SAUNDERS, JJ.

[94-1159 La.App. 3 Cir. 1] DOUCET, Chief Judge.

The plaintiffs, Jacob, Claudia, Shannon and Stacy Touchet, appeal the trial court's dismissal of their claims against the defendants, the Estate of Constance Bass, Edward F. Bass and John Colden Bass (the Bass family) pursuant to a motion for summary judgment.

In 1990 or 1991, while her husband was in his final illness, Constance Bass bought property in Lake Arthur, Louisiana and moved a house onto it to serve as a vacation home or camp. She contacted Clyde Guidry, a carpenter, to renovate the house for that purpose. Mrs. Bass told Guidry what she wanted and he did the work. When he needed help, he contacted additional independent carpenters. In 1991 Mrs. Bass' sons built part of a wharf or pier. In late 1991 or early 1992, pilings were driven for the remainder of the pier and for a boathouse. This work was done by an unidentified contractor who is not involved in this suit. In early 1992, the Bass brothers fastened 2 X 12 boards to the pilings so that a walkway could be laid on top. Clyde Guidry laid the walkway in April or May 1992.

By this time Mrs. Bass was terminally ill with cancer. However, she decided to have the boathouse and a deck built. She and her son, Edward Bass, discussed what she [94-1159 La.App. 3 Cir. 2] wanted the boathouse to look like. She told her son to contact Clyde Guidry to do the work. Edward Bass met Clyde Guidry and explained his mother's plan for the boathouse and deck. He told Guidry to use all treated materials and to put on a tin roof. A few days later work was started. Guidry was apparently in touch with a pool of independent carpenters with whom he frequently worked. One of these men was the plaintiff, Jacob Touchet. Several men who were then working with him on another project moved to the Bass project. Each carpenter kept his own hours and gave them to Guidry. Guidry submitted the hours to Edward Bass. A check for each man was sent to Guidry, who distributed them to the carpenters. Guidry decided what materials were needed and charged them to the Bass' account at Stine Lumber. The invoices were then paid from Mrs. Bass' checking account as the bills came in. In his deposition, Edward Bass said that he did not remember telling Guidry to do this but that Guidry probably knew about it from the previous jobs done for the family.

Touchet began work on the Bass project but, after a few days, moved to another project in which Guidry was also involved. After two or three weeks, he moved back to the Bass job on May 18, 1992. He was instructed by Lester Guidry, another carpenter and a cousin to Clyde Guidry, to help install a large piece of exterior plywood on the south side of the boat house over the water. Scaffolding had been built of 2 X 6 lumber from Stine Lumber so that work could be done. Touchet and another carpenter, Toby Matt, climbed onto the scaffolding. Other men handed them a piece of plywood. As Touchet and Matt were positioning the board, a 2 X 6 that was acting as a brace for the scaffolding broke. The scaffolding collapsed. The two men fell in the water. The plywood fell on Touchet's right leg. Ultimately, Touchet underwent amputation of the leg.

As a result of the accident, Touchet, his wife and two sons brought this action against the Estate of Constance Bass, Edward F. Bass, John Colden Bass, Stine Lumber Company, L.L. Brewton Lumber Company (Brewton), who allegedly treated the lumber, and several mills who allegedly supplied lumber to Brewton. The suit alleged that the Bass family was liable under the strict liability provisions of La.C.C. art. 2317.

It was discovered that the 2 X 6 that broke causing Touchet's fall was discarded after the accident in routine cleanup of the job site. As a result, it was impossible to [94-1159 La.App. 3 Cir. 3] discover which mill supplied the lumber to Brewton. Therefore, the mills were dismissed pursuant to motions for summary judgment.

On July 6, 1994, the Bass family moved for summary judgment alleging that they did not have custody of the lumber as required to establish liability under La.C.C. art. 2317. Following a hearing, the trial court granted the motion. Judgment was rendered dismissing the Bass family from the suit. Stine Lumber and Brewton remain as defendants. The plaintiffs appeal the dismissal of the Bass family.

On appeal the plaintiffs argue that the trial court erred in finding that there was no genuine issue of fact whether the Bass family had custody or garde of the lumber for the purpose of liability under La.C.C. art. 2317.

La.C.C. art. 2317 provides in pertinent part that:

"We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody...."

Custody under this article must be interpreted in compliance with the French concept of garde. Ross v. La Coste de Monterville, 502 So.2d 1026 (La.1987), as cited in Ellison v. Associated Oilfield Services, Inc., 950 F.2d 1196 (5th Cir.1992).

"According to the French understanding, garde is the obligation imposed by law on the proprietor of a thing, or on the one who avails himself of it, to prevent the thing from causing damage to others. [Ross v. La Coste de Monterville, 502 So.2d 1026 (La.1987) ] In the actual application of French law, the garde of a thing is divided between the guardian of the conduct of the object, who is responsible for damage caused by the object's behavior, and the guardian of the object's structure, who is responsible for damage caused by the object's defects. Ross, 502 So.2d at 1030. Article 2317 embraces only the second component. Id. at 1032. Because article 2317 imposes strict liability, the injured plaintiff need not prove the guardian's knowledge of the defect prior to the accident."

Ellison v. Associated Oilfield Services, Inc., supra. at 1208. See also Franklin v. Ford Motor Corp., 617 So.2d 57 (La.App. 4 Cir.), writ not considered, 619 So.2d 565 (La.1993).

The Touchets argue that, as owners of the lumber, the Bass family was presumed to have the garde. This court in Mayo v. Nissan Motor Corp. in U.S.A., 93-852 (La.App. 3 Cir. 6/22/94); 639 So.2d 773, 787 cited Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461 (La.1991) for the proposition that "[a]lthough ownership creates the presumption of [94-1159 La.App. 3 Cir. 4] garde, this presumption is rebuttable by the owner. Id. Whether the law imposes a duty of garde is a factual inquiry. Id."

Since the question of garde is factual, summary judgment will be appropriate under La.C.C.P. art. 966, only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that" the Bass family did not have garde of the lumber, and that they were "entitled to judgment as a matter of law."

This court has stated in Green v. Popeye's Inc., 619 So.2d 69, 72 (La.App. 3 Cir.1993) that:

"... Although the general rule is that an owner of a building under construction does not have custody of the building, Louisiana jurisprudence has recognized an exception to this rule where the owner exercises control over the contractor's methods of operation. Williams v. Gervais F. Favrot Co., 499 So.2d 623 (La.App. 4 Cir.1986), writ denied 503 So.2d 19 (La.1987), Herron [v. Lincoln Property Co., 525 So.2d 1189 (La.App. 5 Cir.1988) ].

However, when the owner furnishes the plans and specifications and retains only the right to inspect the job site to insure that the job is being performed in accordance with the specifications, he does not have operational control over the contract work. Massey v. Century Ready Mix Corp., 552 So.2d 565 (La.App. 2 Cir.1989), writ denied 556 So.2d 41 (La.1990). Herron, supra."

The plaintiffs allege that the deposition testimony shows that the Bass family had garde of the lumber because a member of the family was acting as the general contractor on the boathouse project. In support of this, the Touchets cite the direct payment to the carpenters from Mrs. Bass' checking account, the fact that the materials were charged to the Bass' account at Stine Lumber, and the fact that the bills from Stine Lumber were paid by the Bass family. They further rely on Mrs. Bass' supervision of the renovation of the house and her specification of the size and type of boathouse to be built. Additionally, they argue that Edward Bass' participation in the building of the wharf shows supervision of the boathouse project.

The testimony of Bass was that he gave the specifications for the boathouse to Clyde Guidry and told him to use treated lumber and a tin roof. He said that he left the decisions about how to achieve the desired end to Guidry. Bass further testified that he visited the building site to see how the work was coming. He testified that his first visit was [94-1159 La.App. 3 Cir. 5] after Touchet's accident, because that is when he found out about it. He said that he did not have anything to do with supplies, equipment or the choice of laborers to help Guidry. He did not help build the boathouse. He conceded that the men were paid directly from his mother's account and that the Stine bills were paid...