Renwick v. PNK Lake Charles, L.L.C.

• Citation: 901 F.3d 605
• Decision Date: 27 August 2018
• Docket Number: No. 17-30767,17-30767
• Parties: Tyler RENWICK, Plaintiff–Appellant v. PNK LAKE CHARLES, L.L.C., doing business as L’Auberge du Lac, Defendant–Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

901 F.3d 605

Tyler RENWICK, Plaintiff–Appellant

v.PNK LAKE CHARLES, L.L.C., doing business as L’Auberge du Lac, Defendant–Appellee

No. 17-30767

United States Court of Appeals, Fifth Circuit.

FILED August 27, 2018

Michael J. Mestayer, New Orleans, LA, for Plaintiff–Appellant.

David John Calogero, Esq., Attorney, Jami Lauren-Marie Lacour, Esq., Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, Lafayette, LA, for Defendant–Appellee.

Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

Tyler Renwick ("Renwick") was injured when he fell off a defective ladder spanning the narrow gap between a casino vessel and hotel owned by PNK Lake Charles LLC ("PNK"). Renwick was an employee of a subcontractor hired to clean ventilation equipment on the hotel roof. He sued PNK for damages under Louisiana law, claiming PNK was liable as both the owner of the premises and the custodian of the ladder. The district court granted summary judgment to PNK, however, dismissing all of Renwick’s claims with prejudice. Renwick appealed. We conclude that genuine fact issues exist as to whether PNK may be liable for Renwick’s injuries. Accordingly, we REVERSE the district court’s judgment and REMAND for further proceedings.

I.

A.

We recite the facts drawing all justifiable inferences in Renwick’s favor because he was the non-moving party below. TIG Ins. Co. v. Sedgwick James , 276 F.3d 754, 759 (5th Cir. 2002).

Renwick was an employee of PB Technologies LLC ("PB"), a Texas company that cleans commercial kitchen vents and hoods. In 2007, PB was hired by general contractor JC Myers ("Myers") to clean restaurant ventilation equipment at the L’Auberge du Lac ("L’Auberge") hotel and casino in Lake Charles, Louisiana. L’Auberge was owned by PNK.¹

L’Auberge consisted of a floating casino vessel next to a hotel. The ventilation equipment to be cleaned was located inside the hotel kitchens and on the hotel’s roof and side. PNK controlled contractor access to the hotel and casino premises, including the roof areas. During the initial walk-through in 2007, PNK personnel instructed PB how to access the hotel roof: PB’s crew members would proceed up to the adjacent casino’s roof—situated about 10 feet below the hotel roof—and from there climb a ladder leaning against the hotel. The ladder spanned a two-to-three-foot gap between casino and hotel, with a considerable drop (about 50 feet according to some estimates) to a gangway below. PNK specified that ladder access from the casino roof was the only way to reach the vents on the hotel roof, and at that time did not disclose to PB or Myers any alternate access. During this initial walk-through, there was an old wooden ladder on the casino roof used to access the hotel roof, but the parties agree this ladder was subsequently replaced with various fiberglass extension ladders and so played no role in Renwick’s subsequent accident.

Dissatisfied with the ladder arrangement, PB proposed that PNK construct a platform to ensure safer access to the hotel roof. PB had its operations manager, Robert Gee, present PNK with designs for a platform, but PNK rejected this proposal, citing budget concerns. As a result, over the years-long course of the cleaning contract, PB crew members would access the hotel roof via ladders that leaned across the casino-hotel gap and that were typically tied to a railing on the casino roof. The parties dispute who owned the ladders and who routinely set them up. They agree, however, that PNK did not supervise the day-to-day work of PB crew members.

In the early morning hours of July 14, 2015, Renwick climbed a ladder from the casino roof to the hotel to turn off a ventilation fan on the hotel roof. Before reaching the hotel roof, however, Renwick fell from the ladder onto the gangway below, suffering serious injuries. While the precise circumstances of the accident were murky (Renwick lacked a clear memory of what happened), it is undisputed that the ladder at issue consisted of only one-half of an extension ladder and therefore lacked stabilizing feet. As a result, the ladder apparently slipped out from under Renwick before he reached the hotel roof. The parties agree that the ladder in question was defective and unsafe. Again, however, they dispute who owned the ladder and who set it up.

Following Renwick’s accident, PNK showed PB personnel for the first time an alternate way to reach the hotel roof through the hotel interior. From that point on, PB crew members began using this new means of access when performing their cleaning duties.

B.

In September 2015, Renwick sued PNK in federal court, alleging PNK was negligent under Louisiana Civil Code article 2315 and also liable as the owner or custodian of a defective thing under article 2317.1. In April 2017, the district court granted PNK’s summary judgment motion and dismissed all of Renwick’s claims with prejudice.

As to negligence, the district court relied on the Louisiana rule that a premises owner is typically not liable for an independent contractor’s² negligence. See generally, e.g., Meaux v. Wendy’s Int’l, Inc., 10-111 (La. App. 5th Cir. 10/26/10), 51 So.3d 778, 784. The court concluded that no genuine fact dispute triggered any exception to that general rule. Specifically, the court found no dispute that PNK lacked "operational control" over PB’s work because the evidence showed, at most, that PNK only identified the "point of access" to the hotel roof while leaving PB free to "determine[ ] what ladders to use" to traverse the casino-hotel gap. The court also found no dispute concerning whether PNK had given "explicit or implicit authorization to an unsafe practice," because it found no evidence to show that PNK was aware PB employees were using defective ladders to access the hotel roof.³

As to liability for a defective thing, the district court assumed that PNK had "custody or ‘garde ’ " of the ladder, but found the evidence undisputed that the ladder’s defect did not amount to an "unreasonably dangerous condition." Specifically, the court relied on undisputed evidence that Renwick failed to inspect the ladder before using it in violation of PB’s training policies and federal safety regulations.

Renwick moved for a new trial or, alternatively, to alter or amend the judgment, which was denied in September 2017. Renwick timely appealed both the grant of summary judgment and the denial of his post-trial motion.

II.

We review a grant of summary judgment de novo . United States ex rel. Farmer v. City of Houston , 523 F.3d 333, 337 (5th Cir. 2008). Summary judgment is proper only if the pleadings and record materials reveal no genuine issue as to any material fact. TIG Ins. Co. , 276 F.3d at 759 (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ); FED. R. CIV. P. 56. A "material" fact is one "that might affect the outcome of the suit under governing law," Anderson , 477 U.S. at 248, 106 S.Ct. 2505, and a fact issue is " ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party," TIG Ins. Co. , 276 F.3d at 759 (citing Anderson , supra ). If the moving party initially shows the non-movant’s case lacks support, "the non-movant must come forward with ‘specific facts’ showing a genuine factual issue for trial." TIG Ins. Co. , 276 F.3d at 759 (citing Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Matsushita Elec. Indus. v. Zenith Radio , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; FED. R. CIV. P. 56(e) ). We must view the evidence in the light most favorable to the non-moving party, drawing "all justifiable inferences ... in the non-movant’s favor." Envtl. Conservation Org. v. City of Dallas , 529 F.3d 519, 524 (5th Cir. 2008) ; see also Anderson , 477 U.S. at 255, 106 S.Ct. 2505 (explaining "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor") (citing Adickes v. S.H. Kress & Co. , 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ).

Louisiana’s substantive law applies in this diversity case, and we review the district court’s determination of Louisiana law de novo. See, e.g., Learmonth v. Sears, Roebuck & Co. , 710 F.3d 249, 258 (5th Cir. 2013) (citations omitted). In determining Louisiana law, we "should first look to final decisions of the Louisiana Supreme Court." Howe ex rel. Howe v. Scottsdale Ins. Co. , 204 F.3d 624, 627 (5th Cir. 2000). To the extent the supreme court has not resolved an issue, then we "must make an ‘Erie guess’ and ‘determine as best [we] can’ what the Louisiana Supreme Court would decide." Id. (quoting Krieser v. Hobbs , 166 F.3d 736, 738 (5th Cir. 1999) ; Transcontinental Gas Pipe Line Corp. v. Transportation Ins. Co. , 953 F.2d 985, 988 (5th Cir. 1992) ). To inform our Erie guess, we "may look to the decisions of intermediate appellate state courts," which provide " ‘a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.’ " Howe , 204 F.3d at 627 (citing Labiche v. Legal Sec. Life Ins. Co., 31 F.3d 350, 351 (5th Cir. 1994) (quoting Commissioner v. Estate of Bosch , 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) ) ).⁴

III.

Our analysis proceeds as follows. In part A, infra , we address whether the district court properly granted PNK summary judgment on premises owner liability. Specifically, we address the exceptions for operational control in part A.1, and for authorization of an unsafe practice in part A.2. In part B, infra , we address whether the district court properly granted PNK summary judgment on liability for a defective thing. Finally, in part C, infra , we address whether we may affirm on the alternate ground of superseding cause. As explained below, we reverse the district court’s grant of summary...