Payne v. Gardner
| Decision Date | 27 October 2010 |
| Docket Number | Nos. 10-0021, 10-0022.,s. 10-0021, 10-0022. |
| Citation | 49 So.3d 1013 |
| Parties | Robbie PAYNE, et al. v. Brett GARDNER, et al. Robbie Payne, et al. v. Brett Gardner, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Michael C. Palmintier, Degravelles, Palmintier, Holthaus & Frugé, L.L.P., Baton Rouge, LA, for Plaintiffs/Appellants, Robbie Payne, individually and as natural tutrix of Henry Goudeau, Jr.
Albin A. Provosty, John D. Ryland, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellee, Lufkin Industries, Inc.
Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, MARC T. AMY, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
**1 Robbie Payne, individually and as tutrix of her minor son, Henry Goudeau, Jr., appeals the trial court's grant of summary judgment in favor of Lufkin Industries, Inc., dismissing her claim for damages against that particular defendant. For the following reasons, we reverse the grant of summary judgment and remand the case for further proceedings.
This litigation arises from an accident that occurred in rural Rapides Parish on March 9, 2004. On that day, thirteen-year-old Henry Goudeau, Jr. (Henry) sustained injuries when he climbed onto the moving pendulum of an oil well pump (sometimes referred to as the "pumping unit") and attempted to "ride" the pendulum. When he climbed on the moving pendulum, his pants became entangled in other parts of the pump and, as the pendulum continued to move upward, he sustained severe personal injuries. The well to which the pumping unit was attached is identified as Tarver A-2 and is located on forty acres of undeveloped property.
Ms. Payne initially filed suits to recover the damages she and her son sustained in both East Baton Rouge Parish and Rapides Parish and named Lufkin Industries, Inc. (Lufkin Industries), among others, as a defendant in both suits. The East Baton Rouge Parish suit was eventually transferred to Rapides Parish pursuant to a grant of an exception of improper venue and was consolidated with the Rapides Parish suit. Thereafter, on December 16, 2008, Lufkin Industries filed the motion for summary judgment that is now before us.
In support of its motion, Lufkin Industries filed a Statement of Undisputed Material Facts as well as copies of the depositions of Henry; Jon Rand Tarver, the co-owner of the limited liability company that owns the pumping unit; and Brett **2 Gardner, a gauger for Tarver A-2. In opposition to the motion, Ms. Payne filed copies of the same three depositions; copies of her own deposition and that of Maurine T. Noone, the owner of the land where the well is located; and a photograph of the oil well pump on which Henry was injured. In addition, the plaintiffs submitted to the trial court cases from California, Texas, and Oklahoma in which children had been injured while attempting to "ride" on an oil well pumping unit: Titus v. Bethlehem Steel Corp., 91 Cal.App.3d 372, 154 Cal.Rptr. 122 (Cal.App.2d Dist.1979), Burk Royalty Co. v. Pace, 620 S.W.2d 882 (Tx.App. 12th Dist.1981), Knowles v. Tripledee Drilling Co., Inc., 1989 OK 40, 771 P.2d 208 (1989).
The Statement of Undisputed Material Facts filed by Lufkin Industries establishes the following:
The other filings in support of, and in opposition to, the summary judgment establish that there is little dispute over most of the remaining facts surrounding the accident. Tarver A-2 was drilled sometime prior to 1990, and the pump at issue was manufactured by Lufkin Industries some fifty years before Henry's injury. At the time of the accident, the pump was owned by CABA, L.L.C., a limited liability **3 company owned by Jon Rand Tarver and his mother, Connie Tarver.1 Ms. Noone, who was ninety-two years of age when her deposition was taken in May of 2008, inherited the property upon which Tarver A-2 is located from her father. The property is a wooded area and the well itself bears no warning signs and is not fenced. The evidence also establishes that Ms. Payne and Henry moved to the rural area where the Noone property is located in early 2004, or only a short time before the March 9, 2004 accident. At the time of the accident, thirteen-year-old Henry was in the sixth grade, and was receiving special education in math and reading because he suffers from an attention deficit hyperactivity disorder and dyslexia.
On the day of the accident, Henry and three other boys were walking through the woods when they came upon the TarverA-2 well. Before that day, Henry had only seen pumping oil wells from a vehicle as he rode by them. One of the other boys attempted to "ride" the oil well pump before Henry, but the boy's legs were too short. When Henry made his attempt to ride the pumping unit, the accident occurred.
Ms. Payne argued in opposition to the motion that there existed a foreseeable risk that children would attempt to play on the oil well pump.
Following the July 27, 2009 hearing on the motion, the trial court granted Lufkin Industries the relief it prayed for and dismissed it from the litigation. Ms. Payne perfected this appeal, asserting four assignments of error.
In her first and fourth assignments of error, Ms. Payne asserts that the trial court erred in granting the motion for summary judgment, arguing that there are genuine issues of material fact concerning what constitutes the "reasonably anticipated use" of an oil well pump.2
The motion for summary judgment is a procedural device to avoid a trial on the merits when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). Summary judgment procedure is "designed to secure the just, speedy, and inexpensive determination of every action," except certain domestic actions; the procedure is favored and shall be construed to accomplish those ends. La.Code Civ.P. art. 966(A)(2); Racine v. Moon's Towing, 01-2837 (La.5/14/02), 817 So.2d 21. Appellate review of a summary judgment is de novo, applying the same standard as the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. The movant has the burden of proof on the motion for summary judgment. La.Code Civ.P. art. 966(C)(2).
The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).
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