Harris v. Boh Bros. Constr. Co.

• Decision Date: 26 May 2021
• Docket Number: NO. 2020-CA-0248,2020-CA-0248
• Citation: 322 So.3d 397
• Parties: Daniel HARRIS v. BOH BROS. CONSTRUCTION CO., LLC and ABC Insurance Company
• Court: Court of Appeal of Louisiana — District of US

322 So.3d 397

Daniel HARRIS

v.BOH BROS. CONSTRUCTION CO., LLC and ABC Insurance Company

NO. 2020-CA-0248

Court of Appeal of Louisiana, Fourth Circuit.

May 26, 2021

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

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

Judge Paula A. Brown

This is a personal injury suit on remand from the Louisiana Supreme Court.

FACTUAL BACKGROUND

The factual background in the case was set forth in Harris v. Boh Bros. Constr. Co., LLC , 20-0248, ––– So.3d ––––, ––––, 2020 WL 8455801, at *1 (La. App. 4 Cir. 12/16/20) :

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, exceeding the 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

PROCEDURAL HISTORY

Mr. Harris filed a petition and an amended petition for damages against Boh Bros. Mr. Harris alleged Boh Bros. was negligent, asserting, in pertinent part: "Plaintiff was walking home, and walked through the unsecured construction site that was maintained by BOH BROS. CONSTRUCTION CO. L.L.C. when he fell fifteen (15) to twenty (20) feet at the premises. The accident caused personal injury to Plaintiff." In response, Boh Bros. answered the petition and pled affirmative defenses.²

Following, Boh Bros. moved for summary judgment, and for the first time asserted the affirmative defense of government contractor immunity, pursuant to Boyle v. United Techs. Corp ., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) (hereinafter referred to as " Boyle ").³ In addition, Boh Bros. alleged that Mr. Harris could not prove the elements of breach of duty and causation as to his negligence claim.⁴ The district court granted the motion for summary judgment as to these issues and provided written reasons.⁵ From this judgment, Mr. Harris appealed.

This Court, after a de novo review, concluded that there were genuine issues of material facts remaining, which precluded summary judgment on both grounds. Harris , 20-0248, ––– So.3d at ––––, 2020 WL 8455801, *1.⁶ Specifically, this Court determined that Boh Bros. failed to meet the first prong of Boyle —that the government approved of reasonably precise plans and specifications regarding the fencing surrounding the construction site. The record before this Court reflected that Boh Bros. did not submit with its motion for summary judgment a copy of the plans and specifications and/or contract approved by the Corps, regarding the fencing surrounding the construction site. Id. , 20-0248, ––– So.3d at ––––, 2020 WL 8455801, at *9. This Court pretermitted discussion of the other two prongs of the Boyle test. This Court also determined that Boh Bros. failed to show an absence of factual basis to support Mr. Harris’ negligence claim, as there were genuine issues of material fact remaining. Id ., 20-0248, ––– So.3d at ––––, 2020 WL 8455801, at *11-12. As a result, this Court reversed the district court's January 10, 2020 judgment, and the matter was remanded to the district court for further proceedings. Harris , 20-0248, ––– So.3d at ––––, 2020 WL 8455801, at * 12.⁷ Boh Bros. sought review by the Supreme Court.

In its writ application to the Supreme Court, Boh Bros., for the first time, asserted that Mr. Harris made two judicial confessions: (1) the first prong of the Boyle test was met; and (2) the hazard was open and obvious. Boh Bros. urged that, as a result, it was relieved of proving the first prong of the Boyle test, and it owed no duty to Mr. Harris.

The Supreme Court, in a per curiam , granted Boh Bros. relief, in part, writing:

The court of appeal reversed, finding defendant failed to meet the first requirement of Boyle -that the government approve reasonably precise specifications. Specifically the court pointed to defendant's failure to submit a copy of the plans and specifications approved by the Army Corps of Engineers. However, a filing [Plaintiff's Supplemental and Amending Motion in Opposition to Defendant's Motion for Summary Judgment] before the trial court indicated the "Plaintiff does not dispute the first prong of the Affirmative Defense of Governmental Contractor Immunity applies. Thus, there is no need to discuss that issue as clearly the government approved the specifications."

An admission by a party in a judicial proceeding is a judicial confession and is full proof against the party making it. La. Civ. Code art. 1853 ; C.T. Traina, Inc. v. Sunshine Plaza, Inc ., 2003-1003, (La. 12/3/03), 861 So.2d 156, 159. This admission "has the effect of waiving evidence as to the subject of the admission-of withdrawing the subject matter of the confession from issue." Cichirillo v. Avondale Indus., Inc ., 2004-2894, (La. 11/29/05), 917 So.2d 424, 429 (citing Cheatham v. City of New Orleans , 378 So.2d 369, 375 (La. 1979) ). Plaintiff's admission removed the first requirement of Boyle from issue. The court of appeal erred in denying defendant immunity on this ground.

[W]e remand to the court of appeal to complete its review of defendant's government contractor immunity claim.

Harris v. Boh Bros. Constr. Co. , 21-00084, pp. 2-3 (La. 3/16/21), 312 So.3d 565, 566-67 (emphasis added).⁸ Justice Griffin dissented, and Justice Genovese wrote that he would deny the writ and allow the matter to go to trial, explaining in part:

I must say that I am intrigued and perplexed at defendant's "open hazard" defense. Defendant claims that a risk is not unreasonable if it is open and obvious, citing jurisprudence in support of its theory. Query: How can a completely blind person be subjected to the "open and obvious" test?

I find the court of appeal decision was correct and would deny this writ for two reasons: first, there are genuine issues of material fact as to defendant's entitlement to immunity; and second, a completely blind man cannot be held to the "open and obvious" legal concept because he is completely blind and can neither see nor discern an open and obvious hazard.

Harris , 21-00084, pp. 1-2, 312 So.3d at 567.

DISCUSSION

On remand, we address Mr. Harris’ assigned error that the district court erred in granting summary judgment in favor of Boh Bros. For the reasons set forth below, we conclude, after our de novo review, that there are genuine issues of material fact remaining, which preclude summary judgment as a matter of law on the issues of government contractor immunity and negligence.

Summary judgment law

In Filmore Parc Apartments II v. Foster , 18-0359, 318 So.3d 718, 725–26 (La. App. 4 Cir. 11/7/18) (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 (La. App. 4 Cir. 2/21/18), 317 So.3d 361, 362–63, 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

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