Harris v. Boh Bros. Constr. Co.

• Decision Date: 16 December 2020
• Docket Number: NO. 2020-CA-0248,2020-CA-0248
• Parties: DANIEL HARRIS v. BOH BROS. CONSTRUCTION CO., LLC AND ABC INSURANCE COMPANY
• Court: Court of Appeal of Louisiana — District of US

DANIEL HARRIS v. BOH BROS. CONSTRUCTION CO., LLC AND ABC INSURANCE COMPANY

NO. 2020-CA-0248

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

December 16, 2020

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH

NO. 2017-03303, DIVISION "M"

Honorable Paulette R. Irons, Judge

Judge Paula A. Brown

(Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge Dale N. Atkins)

BELSOME, J., CONCURS IN THE RESULT

Vanessa Motta

MOTTA LAW LLC

3632 Canal Street

New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

Michael R.C. Riess

Michael D. Lane

RIESS LEMIEUX, LLC

1100 Poydras Street, Suite 1100

New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED

PAB

DNA

This is a personal injury suit. Plaintiff/Appellant, Daniel Harris, appeals the district court's January 10, 2020, judgment, granting Defendant/Appellee's, Boh Bros. Construction Co., LLC ("Boh Bros."), motion for summary judgment. From this judgment, Mr. Harris seeks appellate review. For the following reasons, we reverse the district court's judgment.

FACTS/PROCEDUAL HISTORY

Boh Bros. entered into a contract with the United States Government Army Corps of Engineers (the "Corps") to work on the Southeast Louisiana Urban Flood Control Project (the "Project") in the uptown area of New Orleans, Louisiana. The Project was initiated by the Corps to address flooding in Southeast Louisiana. The Corps provided the plans and specifications for the Project. The contract provided that a concrete canal, which was comprised of a fifteen-feet deep box culvert, be built underneath Louisiana Avenue that spanned from Constance Street to South Claiborne Avenue. The walls of the culvert were to be lined with a steel retaining wall with a minimum height of three feet (36 inches) above the existing grade to give protection against falls into the culvert. According to Boh Bros., it installed the steel retaining wall at a height of 42 inches above the existing grade, exceedingthe minimum requirement of 3 feet. Boh Bros. also contended that the specifications required a minimum of a six-foot chain-linked fence be built around the neutral ground of Louisiana Avenue.

On the evening of April 8, 2016, Mr. Harris, who is legally blind, was in the New Orleans uptown area near Louisiana Avenue visiting his stepdaughter. After staying a few hours at his stepdaughter's house, Mr. Harris walked to a near-by store, assisted by a neighborhood friend. At some point, the friend left Mr. Harris at the store. The store was in a location where Mr. Harris was not required to cross the street to get to his stepdaughter's home.

The next morning, on April 9, 2016, Boh Bros.' personnel found Mr. Harris inside the fence, lying at the bottom of a box culvert located in the neutral ground on Louisiana Avenue between South Robertson Street and Freret Street. To enter the construction site in the area where Mr. Harris was found, Mr. Harris had to cross the street from his location at the store.

Mr. Harris suffered injuries as a result of his fall. Mr. Harris could not recall how he got into the culvert.¹

Mr. Harris filed a petition and an amended petition for damages against Boh Bros. In response, Boh Bros. answered the petition and pled affirmative defenses, including statutory immunity pursuant to La. R.S. 9:2771.²

On April 22, 2019, Boh Bros. filed a motion for summary judgment, and Mr. Harris responded with an opposition. A hearing was held Bon July 18, 2019; the district court deferred ruling on the summary judgment motion to allow the parties to submit supplemental memoranda. In the supplemental memorandum, Boh Bros. argued that three of Mr. Harris' exhibits—a video, and exhibits 3 and 8, which were photographs—should be excluded. On January 10, 2020, the district court issued judgment excluding all three exhibits and granting summary judgment in favor of Boh Bros. This timely appeal followed.³

DISCUSSION

Mr. Harris essentially assigns two errors: (1) the district court erred in excluding the video and exhibits 3 and 8; and (2) the district court erred in granting the motion for summary judgment in favor of Boh Bros.

Before turning to the assigned errors, we look at the standard of review, the burden of proof, and the evidence that a trial court shall consider in ruling on a motion for summary judgment. In Filmore Parc Apartments II v. Foster, 18-0359, 2018 WL 5830453, at *6 (La. App. 4 Cir. 11/7/18), writ denied, 18-2050 (La. 2/11/19), 263 So.3d 1151 (footnote omitted), this Court explained, in pertinent part:

"A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by the litigant." Tate v. Touro Infirmary, 17-0714, p. 1 (La. App. 4 Cir. 2/21/18), — So.3d —, —, 2018 WL 992322, writ denied, 18-0558 (La. 6/15/18), 245 So.3d 1027 (citing La. C.C.P. art. 966(A)(1)). Generally, the burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). An appellate court's standard of review for a grant of a summary judgment is de novo, and it employs the same criteria district courts consider when determining if a summary judgment is proper. Madere v. Collins, 17-0723, p. 6 (La. App. 4 Cir. 3/28/18), 241 So.3d 1143, 1147 (citing Kennedy v. Sheriff of E. Baton Rouge, 05-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686). In Chanthasalo v. Deshotel, 17-0521, p. 5 (La. App. 4 Cir. 12/27/17), 234 So.3d 1103, 1107 (quoting Ducote v. Boleware, 15-0764, p. 6 (La. App. 4 Cir. 2/17/16), 216 So.3d 934, 939, writ denied, 16-0636 (La. 5/20/16), 191 So.3d 1071), this Court explained:

This [de novo] standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

On a motion for summary judgment, the burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). If the moving party will not bear the burden of proof at trial, the moving party must point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. La. C.C.P. art. 966(D)(1). However, the moving party cannot simply file a motion for summary judgment that lacks proper support and rely on the fact that the opposing party will bear the burden of proof at trial. See Berard v. Home State Cty. Mut. Ins. Co., 11-1372, p. 4 (La. App. 3 Cir. 5/9/12), 89 So.3d 470, 472. Once the moving party has met its burden on summary judgment, the adverse party must produce factual support sufficient to establish that he/she will be able to satisfy his/her evidentiary burden of proof at trial. Davis v. A Bar & Grill with a Bite, Inc., 19-1928, p. 2 (La. 3/16/20), 294 So.3d 1051, 1052.

Instructively, La. C.C.P. art. 966(A)(3) and (4) provide:

(3) After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

(4) The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.

Supporting affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . ." La. C.C.P. art. 967(A).

With these principles in mind, we conduct our de novo review.

Boh Bros. filed a motion for summary judgment on four grounds: (1) the accident was the fault of Mr. Harris; (2) Boh Bros. was entitled to "government contractor immunity";⁴ (3) Boh Bros. did not breach any duty owed to Mr. Harris; and (4) Mr. Harris could not sustain his burden of proof on causation. In support, Boh Bros. attached the following:

1. Affidavit of Cameron Johnson, project manager for Boh Bros.;

2. excerpt of the specifications and plans of the Project for the retaining wall that surrounded the culvert;

3. photograph of the retaining wall;

4. photograph of the chain-linked fence;

5. deposition of Mr. Harris;

6. affidavit of Troy Miceli, the investigator hired by Boh Bros. to investigate Mr. Harris' accident;

7. deposition of Shirley Morgan, sister and caregiver of Mr. Harris; and

8. video of Mrs. Morgan and Mr. Harris recorded by Mr. Miceli, depicting Mrs. Morgan speaking to a third party and stating that someone pushed Mr. Harris into the culvert or he fell, "we don't know."

Mr. Harris timely filed an opposition to the motion for summary judgment, contesting Boh Bro.'s government contractor immunity. In support of his opposition, Mr. Harris attached the following:

1. Excerpt of minutes labeled by Mr. Harris as "Corp[s] Administrative Contracting Minutes of August 4, 2014" wherein fencing was discussed: "Mr. Fogarty continued on with the agenda: Safety and Security Fencing; 6 foot chain-link fence around work areas.

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