Meaux v. Wendy's Intern., Inc.

• Decision Date: 26 October 2010
• Docket Number: No. 10-CA-111.,10-CA-111.
• Parties: Jeffrey Owen MEAUX v. WENDY'S INTERNATIONAL, INC., F.J.B. Construction, Inc., ACE Insurance Company, and XYZ Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

51 So.3d 778

Jeffrey Owen MEAUX

v.WENDY'S INTERNATIONAL, INC., F.J.B. Construction, Inc., ACE Insurance Company, and XYZ Insurance Company.

No. 10-CA-111.

Court of Appeal of Louisiana,Fifth Circuit.

Oct. 26, 2010.

Neil D. Sweeney, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant.

Scott G. Jones, Attorney at Law, Mandeville, LA, for Defendant/Appellee.

Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.

FREDERICKA HOMBERG WICKER, Judge.

**2 This is a personal injury matter. Plaintiff/appellant Jeffrey Meaux contends that the trial court erred in granting summary judgment in favor of defendant/appellee Wendy's International, Inc. ("Wendy's"). Mr. Meaux was a worker hired by a subcontractor to clean up debris on a project in which the subcontractor was removing fascia from a Wendy's restaurant. Mr. Meaux was injured when a part of the building's front wall collapsed on him while other employees were removing the fascia from the building. Mr. Meaux sued Wendy's, alleging both negligence and strict liability. Mr. Meaux specifies five errors to the proceedings below, in all of which he contends for various reasons that the trial court erred in granting Wendy's motion for summary judgment. For the reasons that follow, we reverse the trial court's judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The story of this case begins on August 29, 2005, when Hurricane Katrina made landfall over southeastern Louisiana. Katrina caused major damage to the **3 roof of a fast food restaurant located at 7021 Westbank Expressway in Marrero, Louisiana. The parties agree that the restaurant was constructed in the early 1980's.

Wendy's, the owner of the restaurant, hired F.J.B. Construction, Inc. ("F.J.B.") to perform a "fascia retrofit" to repair the damage to the fascia. The fascia of a building is the horizontal or slanted portion of a building's roof that hangs over or across the top of the building's wall. In this case, the fascia in essence acted as a visor sitting around the building's head. The building's head was topped off by its roof. The fascia retrofit, which was largely aesthetic in nature, required F.J.B. to tear the wooden fascia away from the remainder of the roof and to replace the wood. F.J.B. and Wendy's entered into a work agreement on November 29, 2005.

Mark Ross, F.J.B.'s director of operations and executive vice president, indicated during a deposition that after he entered into the work agreement with Wendy's, he entered into a subcontract with JAFC/Jimmy Alsobrooks ("JAFC") to repair the roof and to pick up debris around the Wendy's restaurant. ¹ This work required that a supervisor, a carpenter, and two laborers disconnect and cut the damaged wood from the roof and dispose of the wood. No written evidence of this contract appears in the appellate record. Mr. Ross further testified that prior to beginning the repairs, he inspected the exterior of the Wendy's building with John Danz, F.J.B.'s job superintendent at the Wendy's site. Messrs. Danz and Ross determined that JAFC would open the fascia and determine how best to dispose of and repair the fascia. According to Mr. Ross, no Wendy's employees were involved in the pre-job planning process, nor did any Wendy's employees exercise any control over the fascia work.

**4 JAFC employees began repairing the fascia of the Wendy's restaurant in the afternoon of November 29, 2005. Shortly after removing a portion of the fascia covering the north wall of the Wendy's restaurant, the top portion of the roof and the overhanging fascia collapsed and fell on Mr. Meaux. Mr. Meaux was permanently paralyzed as a result.

Mr. Meaux filed a petition for damages on November 28, 2006 alleging that (1) Wendy's contracted to build the north wall with an improper design and allowed "improper construction procedures" to occur during the construction of the north wall, (2) Wendy's had ownership and/or "garde" of a dangerous and defective building and failed to warn JAFC, and that (3) Wendy's committed "other acts of negligence [that] will be more fully set forth at the trial." Wendy's, F.J.B., ACE American Insurance Company and XYZ Insurance Company were named as defendants. ACE and XYZ were alleged to be the general liability insurance providers for Wendy's and F.J.B. respectively. The Louisiana Workers' Compensation Corporation subsequently intervened seeking to recoup compensation benefits and medical expenses paid to Mr. Meaux as a result of his injury. On March 8, 2007, F.J.B. filed an exception of no cause of action. Eventually the trial court granted this exception and dismissed F.J.B. from this matter with prejudice. That decision is final.

Wendy's thereafter filed the motion for summary judgment at issue here contendingthat none of its employees were present or active in the events leading up to Mr. Meaux's accident; therefore, it could not be liable for Mr. Meaux's injuries. Wendy's also contended that it did not know, nor should it have known, of any defects in the wall. In support of its motion, Wendy's relied upon Mark Ross's deposition testimony in which he insisted that there were no Wendy's employees on the property at the time of Mr. Meaux's injury. Wendy's also relied **5 on Mark Ross's deposition testimony indicating that Wendy's was not responsible for the 2005 plans for removing the fascia.

In his memorandum opposing the motion, Mr. Meaux asserted that Wendy's was liable for his injuries under a general negligence theory because Wendy's failed to inspect the restaurant prior to accepting it for occupancy when it originally built the building in the 1980's, had failed to maintain the restaurant properly, and in 2005 had contracted work that was inherently dangerous. Mr. Meaux also asserted that Wendy's is strictly liable under La.C.C. art. 2317.1 and art. 2322 for his injuries because Wendy's maintained custody over a building with an inherent vice or defect.

The trial court granted Wendy's motion for summary judgment and dismissed Mr. Meaux's claims with prejudice. In his reasons for judgment, the trial judge concluded that "there is no basis for a finding of fault against Wendy's as it was completely uninvolved in the construction project and did not appear at the worksite. In addition to inspecting and planning the demolition project and debris removal, FJB and its subcontractors further provided all materials and labor."

The trial court additionally determined that the alleged defects in the north wall of the restaurant were not a vice that Wendy's knew or should have known about. The court stated in its reasons for judgment that Mr. Meaux's allegation that Wendy's was "liable for the ruin as the original construction plans were not followed and that the missing bolts would easily have been visible to Wendy's before the installation of the drop ceiling ... further supports the argument that ... F.J.B. should have seen it on their pre-demolition inspection."

Finally, the trial court concluded "a repairman hired to perform the work of his employer cannot recover from the owner for injuries received while working in **6 the area under repair." The trial court cited Desormeaux v. Audubon Ins. Co., 611 So.2d 818 (La.App. 3 Cir.1992), writ not considered, 613 So.2d 966 (La.1993), writ denied, 613 So.2d 1002 (La.1993) in support of this final conclusion.

This appeal followed.

STANDARD OF REVIEW

A motion for summary judgment is properly granted only on a showing that there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B); Tassin v. City of Westwego, 95-307 (La.App. 5 Cir. 12/13/95) 665 So.2d 1272. The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only 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. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La.C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580, pp. 4-5 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La.C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08-1224, p. 13 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975. Even though the summary judgment procedure is favored, it is not a substitute for trial on the merits. S.J. v. Lafayette Parish School Bd., 06-2862, p. 5 (La.6/29/07), 959 So.2d 884, 887 (per curiam).

**7 A material fact is one that potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is a "triable issue." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07-376, p. 4 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414. "In determining whether an issue is 'genuine,' courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence." Smith, 93-2512 at 27; 639 So.2d at 751.

Appellate courts review the granting or denial of a motion for summary judgment de...