Talbert v. Restoration Hardware, Inc.

• Decision Date: 31 May 2018
• Docket Number: NO. 2017 CA 0986,2017 CA 0986
• Citation: 251 So.3d 532
• Parties: Alex TALBERT v. RESTORATION HARDWARE, INC., Ozark Motor Lines, Inc.
• Court: Court of Appeal of Louisiana — District of US

251 So.3d 532

Alex TALBERT

v.RESTORATION HARDWARE, INC., Ozark Motor Lines, Inc.

NO. 2017 CA 0986

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: May 31, 2018

Charlotte McDaniel McGehee, Christopher L. Whittington, Baton Rouge, LA, Attorneys for Plaintiff–Appellant, Alex Talbert

Thomas J. Eppling, Sara P. Scurlock, Metairie, LA, Attorneys for Defendant–Appellee, Ozark Motor Lines, Inc.

BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

HIGGINBOTHAM, J.

In this personal injury case, the trial court granted summary judgment in favor of the defendant dismissing plaintiff's claims as to them.

FACTS AND PROCEDURAL HISTORY

On December 7, 2012, in conformance with a transportation services agreement with Restoration Hardware, Inc., Ozark Motor Lines, Inc. picked up an Ozark trailer from Restoration Hardware, in Maryland, that was preloaded and sealed by Restoration Hardware laborers. Ozark conducted a pre-trip inspection, and then transported the trailer to Baton Rouge, Louisiana. Ozark delivered the trailer to Exel Inc.'s distribution facility in Baton Rouge on December 11, 2012, to be unloaded by Exel. On that day, after the seal was broken by Exel, Mr. Alex Talbert, an employee of Exel, was unloading the trailer with his co-worker, Mr. Ryan August. Mr. Talbert was removing a large box containing a table located on the top of several other smaller boxes when the boxes below shifted causing several boxes to fall on him. After the incident, Mr. Talbert filed a petition for damages contending that the trailer had been improperly loaded or loaded with defective boxes causing boxes to fall on him, which caused him injury. In Mr. Talbert's petition, he named Restoration Hardware and Ozark as defendants. Eventually, Restoration Hardware was dismissed from the suit by Mr. Talbert.

On October 23, 2015, Ozark filed a motion for summary judgment, which was denied by the trial court. On January 9, 2017, Ozark filed a second motion for summary judgment attaching additional documents to its motion. The matter came before the trial court on April 17, 2017, after which the trial court granted Ozark's motion for summary judgment and dismissed Mr. Talbert's claims. It is from this judgment that Mr. Talbert appeals, contending that the trial court erred in finding that Ozark's second motion for summary judgment was not precluded under issue preclusion and in finding that no issue of material fact remained.

STANDARD OF REVIEW

When reviewing summary judgments, appellate courts conduct a de novo review of the evidence, using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555 (La. App. 1st Cir. 8/11/08), 993 So.2d 725, 729–30. 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. La. Code Civ. P. art. 966(A)(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2).

The burden of proof is on the mover. La. Code Civ. P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Rather, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. The Shaw Group v. Kulick, 2004-0697 (La. App. 1st Cir. 4/8/05), 915 So.2d 796, 800, writ denied, 2005-1205 (La. 11/28/05), 916 So.2d 148.

As Mr. Talbert is asserting a claim of negligence, he has the burden of proving the five elements of the duty-risk analysis: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant s substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and (5) actual damages. Bufkin v. Felipe's Louisiana, LLC, 2014-0288 (La. 10/15/14), 171 So.3d 851, 855. A negative answer to any of the elements of the duty/risk analysis prompts a no-liability determination. Joseph v. Dickerson, 99-1046 (La. 1/19/00), 754 So.2d 912, 916. Duty is a question of law. The inquiry is whether a plaintiff has any law—statutory, jurisprudential, or arising from general principles of fault—to support his or her claim. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 2002-1376 (La. App. 1st Cir. 5/9/03), 849 So.2d 622, 627, writ denied, 2003-1579 (La. 10/3/03), 855 So.2d 315. In negligence cases, there is an almost universal duty on the part of a defendant to use reasonable care to avoid injury to another. Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So.3d 1065, 1086. When no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. Boland v. West Feliciana Parish Police Jury, 2003-1297 (La. App. 1st Cir. 6/25/04), 878 So.2d 808, 816, writ denied, 2004-2286 (La. 11/24/04), 888 So.2d 231.

LAW AND ANALYSIS

In his first assignment of error, Mr. Talbert contends that Ozark's second motion for summary judgment filed on January 9, 2017, should be precluded under the principle of issue preclusion in La. R.S. 13:4231 because it is the same as Ozark's first motion for summary judgment filed on October 23, 2015, wherein the trial court denied the motion and found that there were issues of material fact as to whether Ozark had a duty to inspect the load. Louisiana Revised Statute 13:4231 embraces the broad usage of the phrase "res judicata" to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel). The denial of an initial motion for summary judgment does not bar a second summary judgment motion under the doctrine of res judicata. See Bozarth v. State LSU Medical Center/Chabert Medical Center, 2009-1393 (La. App. 1st Cir. 2/12/10), 35 So.3d 316, 323. The denial of a motion for summary judgment is an interlocutory judgment, which the trial court may change at any time up to final judgment. Berry v. Paul Revere Life Insurance Company, 2008-0945 (La. App. 1st Cir. 7/9/09), 21 So.3d 385, 386, n.1, writs denied, 2009–2220, 20092241 (La. 12/18/09), 23 So.3d 942, 945. An interlocutory judgment cannot serve as the basis for a plea of res judicata. Spiers v. Roye, 2004-2189 (La. App. 1st Cir. 2/10/06), 927 So.2d 1158, 1170, n.9 (per curiam; on rehearing). Furthermore, the jurisprudence of this and other circuits specifically allows a trial court to consider a second motion for summary judgment after a first motion for summary judgment on the same issue has been denied. Bozarth, 35 So.3d at 323. Therefore, we find no merit to Mr. Talbert's first assignment of error.

In his remaining assignments of error, Mr. Talbert contends that the trial court erred in finding no issue of material fact remained regarding the negligence of Ozark. Specifically, Mr. Talbert argues that under 49 CFR 392.9, issues of material fact remain as to whether Ozark had a duty to inspect the load for safety, and that the trial court erred in finding a lack of evidence that shifting during transit caused the boxes to fall on Mr. Talbert when his expert opined that the boxes fell because of a change in the structural configuration during transit.

In its motion for summary judgment, Ozark argues that there was no evidence of a duty owed by Ozark, and even if the court found a duty on the part of Ozark, there was no evidence of a breach of that duty or causation. Neither side disputes that Ozark picked up a preloaded sealed trailer from Restoration Hardware, did a pre-trip inspection which did not involve breaking the seal or reviewing the load, and transported the trailer to Exel where employees of Exel removed the seal and unloaded the trailer. Ozark pointed out that it was not involved in the loading or unloading of the trailer and contends that because Ozark was not present during the loading or unloading of the trailer, it had neither the opportunity, nor the obligation to inspect the load prior to, during, or after its transport.

In response, Mr. Talbert contends that Ozark had a duty to inspect the load and confirm that it was properly distributed and adequately secured based on 49 C.F.R. 392.9, and that Ozark breached that duty because Ozark did not break the seal and inspect the load. 49 C.F.R. 392.9 provides:

a) General. A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless—

(1) The commercial motor vehicle's cargo is properly distributed and adequately secured as specified in §§ 393.100 through 393.136 of this subchapter.

(2) The commercial motor vehicle's tailgate, tailboard, doors, tarpaulins, spare tire and other equipment used in its operation, and the means of fastening the commercial motor vehicle's cargo, are secured; and

(3) The commercial motor vehicle's cargo or any other object does not obscure the driver's view ahead or to the right or left sides (except for drivers of self-steer dollies), interfere with

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