Opinion
NO. 2012 CA 0087
09-21-2012
DON GALLATY v. EDDIE TOURELLE'S NORTHPARK NISSAN, INC.
Edward J. Womac, Jr. Brian King New Orleans, La. and David F. Craig, Jr. New Orleans, La. Attorneys for Plaintiff/Appellant, Don Gallaty George E. Escher Sheryl Story Metairie, La. Attorneys for Defendants/Appellees, Eddie Tourelle's Northpark Nissan, Inc., and Columbia Casualty Company John J. Rabalais Janice B. Unland Matthew D. Crumhorn Covington, La. Attorneys for Intervenor/Appellee, Louisiana Automobile Dealer's Self Insurer's Fund
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 2006-12392
The Honorable William J. Knight, Judge Presiding
Edward J. Womac, Jr.
Brian King
New Orleans, La.
and
David F. Craig, Jr.
New Orleans, La.
Attorneys for Plaintiff/Appellant,
Don Gallaty
George E. Escher
Sheryl Story
Metairie, La.
Attorneys for Defendants/Appellees,
Eddie Tourelle's Northpark
Nissan, Inc., and Columbia Casualty
Company
John J. Rabalais
Janice B. Unland
Matthew D. Crumhorn
Covington, La.
Attorneys for Intervenor/Appellee,
Louisiana Automobile Dealer's
Self Insurer's Fund
BEFORE: CARTER, C.J., GUIDRY AND GAIDRY, JJ.
CARTER , C. J.
This is an appeal of a summary judgment dismissing the plaintiff's claims against Eddie Tourelle's Northpark Nissan, Inc., and its insurer, Columbia Casualty Company, as well as the claims of the intervenor, Louisiana Automobile Dealer's Association Self-Insurer's Trust Fund. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Days after Hurricane Katrina made landfall, Don Gallaty attempted to hang tarpaulin on a storm-damaged building at Eddie Tourelle's Northpark Nissan (Northpark), located in St. Tammany Parish. Gallaty claims he was doing this at the direction of Eddie Tourelle, his brother-in-law. Portions of the building's exterior stucco and sheetrock had peeled away, leaving beams and studs exposed. Gallaty alleged that he was moving from beam to beam along the building's exterior when one of the beams collapsed, causing him to fall several feet to the ground. It is undisputed that Gallaty fell from the building to the ground and was injured.
Gallaty filed suit against Northpark and its insurer seeking personal injury damages. Gallaty maintains that he was working as an independent contractor for Northpark at the time he was injured. Gallaty alleged that Northpark was negligent in failing to inspect the premises, failing to provide safety measures, failing to provide for alternative methods of performing the work, and failing to warn of the potential for danger. Northpark answered, denying that Gallaty was in any way hired or contracted to provide repairs to buildings. Northpark further alleged that at the time of the accident, Gallaty was not wearing a harness, did not have proper equipment, and placed himself in a precarious and dangerous situation.
The trial court granted Northpark's first motion for summary judgment in 2009. On appeal, this court determined that the trial court erred in failing to first consider the question of whether Gallaty's sole remedy was pursuant to the Workers' Compensation Act, as Northpark alleged. This court vacated the trial court's judgment and remanded the matter for further proceedings. Gallaty v. Eddie Tourelle's Northpark Nissan, Inc., 09-1570 (La. App. 1 Cir. 3/26/10)(unpublished), writ denied, 10-0940 (La. 6/25/10), 38 So. 3d 342.
After the remand, the trial court determined that Gallaty's claims did not fall within the jurisdiction of the Office of Workers' Compensation and were properly brought in district court. The trial court overruled the declinatory exception raising the objection of lack of subject matter jurisdiction urged by Northpark. The trial court then heard Northpark's second motion for summary judgment, which asserted the same grounds as the first. The trial court again granted summary judgment dismissing Gallaty's claims. Gallaty appeals.
After this court's remand, Louisiana Automobile Dealer's Association Self-Insurer's Trust Fund, Northpark's workers' compensation carrier, intervened, seeking judgment recognizing and confirming its rights to offset and take credit in the event that workers' compensation benefits are owed. These claims were also dismissed by the trial court's judgment.
DISCUSSION
At the outset, we note that the trial court's ruling on the declinatory exception raising the objection of lack of subject matter jurisdiction is not challenged in this appeal. Subject matter jurisdiction cannot be waived or conferred by consent of the parties; therefore, appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. Boudreaux v. State, Dept. of Transp. and Development, 01-1329 (La. 2/26/02), 815 So. 2d 7, 13. Accordingly, we have reviewed the jurisdictional issue and agree with the trial court's conclusion that this matter was properly brought in district court. We now proceed to the merits of Gallaty's appeal.
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So. 3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So. 3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, 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. Proc. Ann. art. 966B. Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Proc. Ann. art. 966A(2).
Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. All Crane, 47So. 3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La. Code Civ. Proc. Ann. art. 966C(2). If, however, the mover will not bear the burden of proof at trial on the matter 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. Id. Instead, 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. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966C(2); All Crane, 47 So. 3d at 1027.
In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to determine the truth of the matter but, instead, to determine whether there is a genuine issue of triable fact. All Crane, 47 So. 3d at 1027. A court cannot make credibility decisions on a motion for summary judgment. Id. In deciding a motion for summary judgment, the court must assume that all of the witnesses are credible. Id. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Id.
Gallaty complains that in deciding to grant summary judgment, the trial court improperly relied on credibility determinations it made in connection with the declinatory exception raising the objection of lack of subject matter jurisdiction. Northpark disputes that the trial court did so. Since our appellate review is conducted de novo, we need not determine whether the trial court did so, but will consider the propriety of granting summary judgment. See All Crane, 47 So. 3d at 1027.
In arguing that summary judgment was not appropriate in this case, Gallaty points to the ongoing disagreement between himself and Northpark as to whether he was working for Northpark as an independent contractor at the time of his injury. Gallaty contends that there is a genuine issue of material fact as to his status as an independent contractor, which precludes summary judgment.
A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Simply put, a "material" fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So. 2d 730, 751. Whether a particular fact in dispute is "material" for summary judgment purposes is viewed in light of the substantive law applicable to the case. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d 131, 137.
In general, a building owner is not liable for the negligence of an independent contractor performing work for the owner, unless: 1) the work undertaken by the independent contractor was inherently or intrinsically dangerous; or 2) the owner exercises control over the contractor's methods of operation or gives express or implied authorization to an unsafe practice. Meaux v. Wendy's Int'l, Inc., 10-111 (La. App. 5 Cir. 10/26/10), 51 So. 3d 778, 784. So even assuming that he worked for Northpark as an independent contractor, at trial, Gallaty would bear the burden of proving that he falls within one of the two independent contractor exceptions.
In Meaux, a case cited to this court by both parties, the court explained:
"Ultrahazardous" or "inherently dangerous" activities are those that can cause injury to others even when conducted with the greatest prudence and care. The critical inquiry in determining whether activity is ultrahazardous or inherently51 So. 3d at 786 (citations omitted). Northpark pointed out that Gallaty was hanging tarpaulin, which can be performed in a proper and workmanlike manner.
dangerous is whether it can be made safe when it is performed in a proper and workmanlike manner.
Northpark further pointed out a lack of evidentiary support for a finding that it exercised control over Gallaty's actions or gave express or implied authorization to an unsafe practice. Gallaty testified in his deposition that his brother-in-law, Eddie Tourelle, instructed him as to where and how the tarp was to be hung. However, there is no evidence that Eddie Tourelle or anyone affiliated with Northpark authorized Gallaty to attempt to traverse the side of the obviously storm-damaged building while balancing on the exposed beams, without using a safety harness.
Gallaty further argues that Eddie Tourelle saw him moments before he fell and did not attempt to stop Gallaty from performing the work in the manner in which he was doing it, thus Eddie Tourelle gave tacit authorization to performance in that manner. Eddie Tourelle testified in his deposition that he arrived at the dealership and saw Gallaty on a ladder. Tourelle testified he did not know what Gallaty was doing, so he went to his office and called his wife to ask what her brother was doing there. While on the phone with his wife, Gallaty fell. The simple fact that Tourelle briefly saw Gallaty on the ladder as Tourelle walked by, moments before Gallaty fell, does not amount to tacit authorization of the manner in which Gallaty was performing the work. Compare, Smith v. State Farm Ins. Co., 06-826 (La. App. 3 Cir. 12/6/06), 944 So. 2d 811, 814; Dauzat v. Thompson Const. Co., 02-989 (La. App. 5 Cir. 1/28/03), 839 So. 2d 319 (finding that approving and inspecting plans does not establish control so as to fall within one of the independent contractor exceptions); and Villaronga v. Gelpi Partnership Number 3, 536 So. 2d 1307, 1310-11 (La. App. 5 Cir. 1988), writs denied, 540 So. 2d 327, 329 (La. 1989) (finding that approval of architectural plans and reservation of the right to inspect for compliance was not sufficient control so as to fall within one of the independent contractor exceptions).
After de novo review, we agree with the trial court that there is a lack of support for Gallaty falling within the independent contractor exceptions, which are essential elements of Gallaty's claim for damages as an independent contractor. Accordingly, the fact that Northpark disputes Gallaty's status as an independent contractor is immaterial.
Gallaty also contends there is a genuine issue of material fact as to whether a dangerous building condition caused his fall. Louisiana Civil Code articles 2317.1 and 2322 address an owner or custodian's liability for defective buildings. Article 2317.1 provides:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.Article 2322 provides:
The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the
exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
The owner of a building is not responsible for all injuries resulting from any risk posed by his building. Rather, the owner is liable only for those injuries caused by an unreasonable risk of harm to others. Celestine v. Union Oil Co. of California, 94-1868 (La. 4/10/95), 652 So. 2d 1299, 1303. The fact that an accident occurred because of a vice or defect does not necessarily mean that an unreasonable risk of harm is present. Dupree v. City of New Orleans, 99-3651 (La. 8/31/00), 765 So. 2d 1002, 1012. The determination is dependent on the facts of the particular case. See Celestine, 652 So. 2d at 1304. Relevant factors to be considered in determining whether there exists an unreasonable risk of harm include: 1) the claims and interests of the parties; 2) the probability of the of the risk occurring; 3) the gravity of the consequences; 4) the burden of adequate precautions; 5) individual and societal rights and obligations; and 6) the social utility involved. Dupree, 765 So. 2d at 1012. These factors must be weighed and balanced to decide which risks the codal obligations encompass from the standpoint of justice and social utility. See Dupree, 765 So. 2d at 1012.
Northpark Nissan contends that any dangerous condition of the building was open and obvious. If a dangerous condition is patently obvious and easily avoidable, it cannot be considered to present a condition creating an unreasonable risk of harm. If the particular facts of the case show that the complained of conditions should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La. 2/20/04), 866 So. 2d 228, 234.
After de novo review, we agree with the trial court that the danger posed by the storm-damaged building was open and obvious. A portion of the exterior wall had given way, leaving the beams and studs exposed. Gallaty admitted that he did not test any of the beams or studs before attempting to hang the tarpaulin by standing on the beams without using a safety harness. We conclude that the risk of harm presented by the storm-damaged building was not unreasonable vis-a-vis Gallaty, who claims to have been hired to perform work on the building because it was damaged by the storm. Compare Celestine, 652 So. 2d at 1305.
Since the risk presented by the storm-damaged building was open and obvious, there was no unreasonable risk of harm and there is no liability on the part of Northpark Nissan.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Don Gallaty.
AFFIRMED.