Shields v. McInnis Bros. Constr., Inc.

314 So.3d 1079

Johnathan SHIELDS, Plaintiff-Appellant

v.MCINNIS BROTHERS CONSTRUCTION, INC. and Trio Electric Company, Inc. and Trio Electric Company of Louisiana, LLC, Defendant-Appellee

No. 53,581-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered March 3, 2021

LYNN ESTES, JR., Counsel for Appellant

PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, L.L.P., By: Donald Armand, Jr., Marshall Louis Perkins, Shreveport, Counsel for Appellee, McInnis Brothers Construction, Inc.

COOK, YANCEY, KING & GALLOWAY, By: Jason B. Nichols, James Ashby Davis, Shreveport, Counsel for Appellee, H&W Demolition, Inc.

DAVENPORT, FILES & KELLY, L.L.P., By: Mike C. Sanders, Monroe, Counsel for Appellee, Trio Electric Company

SHERRON PHAE DOUGLAS, Assistant City Attorney, Counsel for Intervenor/Appellee, City of Shreveport

LUNN, IRION, SALLEY, CARLISLE & GARDNER, By: James A. Mijalis, Shreveport, Counsel for Appellee, Yor-Wic Construction Company, Inc.

Before GARRETT, BLEICH (Pro Tempore), and BODDIE (Ad Hoc), JJ.

GARRETT, J.

In this personal injury suit, the plaintiffs, Johnathan Shields and Fuleasha Shields, appeal from the trial court grant of summary judgment in favor of all the defendants, McInnis Brothers Construction, Inc. ("McInnis"); Trio Electric Company, Inc. and Trio Electric Company of Louisiana, LLC ("Trio"); Yor-Wic Construction Company, Inc. ("Yor-Wic"); and H&W Demolition, Inc. ("H&W"). For the following reasons, we affirm the trial court judgment.

FACTS

Johnathan Shields was employed by the City of Shreveport ("City") as an operator at the Lucas Wastewater Treatment Plant ("the Plant"). The facility was undergoing extensive renovations. The roofs and most of the walls of two buildings which housed digester sludge pumps had been demolished. Scaffolding had been erected over the pumps and their switches to protect them during the demolition process. Shields claimed that, at 3 a.m. on August 9, 2016, he touched the switch to Digester Pump ("DP") #2, in order to shut the pump off, and received an electrical shock. There were no witnesses to the alleged incident.

In July 2017, Shields filed suit against McInnis and Trio, alleging that the City contracted with McInnis for renovation of the Plant and McInnis subcontracted all electrical work to Trio. Shields claimed he received an "electrocution" injury and the defendants were liable for failure to follow proper engineering and electrical engineering standards; to properly maintain electrical systems; to install equipment properly; to properly ground electrical equipment; to notice and observe improper grounding and the lack thereof; to inspect, notify, and warn of defects, errors, and deficiencies; and other acts of negligence to be proven at trial. He claimed to have permanent and disabling medical problems as a result of the incident and sought damages.

The petition was amended to add Shields's wife, Fuleasha, who asserted a loss of consortium claim. The plaintiffs also added as defendants Yor-Wic and H&W. McInnis subcontracted a large portion of the work to Yor-Wic, and Yor-Wic subcontracted the demolition work to H&W.

After extensive discovery, all the defendants filed separate motions for summary judgment. As explained below, voluminous attachments were filed with the motions.¹

McInnis argued that none of the contractors owed a duty to Shields. The contract with the City did not require any work on the switch for DP #2, and no work was done on it by any contractor prior to Shields's complaint. McInnis further claimed it did not owe a duty to Shields because it had subcontracted all work in that area to Yor-Wic. McInnis asserted that, as a contractor, it was immune from liability under La. R.S. 9:2771, because it performed all work in accordance with the plans and specifications furnished by the City. The statute grants immunity to a contractor for destruction, deterioration, or defect in work if he follows the plans and specifications furnished to him, which he did not make or cause to be made, when the destruction, deterioration, or defect is due to fault or insufficiency of the plans or specifications. The company maintained that the plaintiffs could not sustain their burden of proof that McInnis breached any duty that created a hazardous condition or caused injury. McInnis argued that Shields had no personal knowledge to support his claims of negligence and that he could not prove that an electrical shock actually occurred. McInnis attached to its motion copies of the contracts between the parties, and excerpts from the depositions of Shields; Carlos Ferguson, a supervisor at the Plant; Mary Williams, the Certified Chief Supervisor at the Plant; Robert Horne, Jr., on behalf of McInnis; Ryan Wicker, on behalf of Yor-Wic; Bailon Moore, on behalf of H&W and Joey Young, representing Trio.

Yor-Wic's motion urged that it did not owe a duty to Shields, did not violate any duty to him, and was entitled to immunity under La. R.S. 9:2771. Yor-Wic pointed out that it did not do any electrical work at the Plant. It attached excerpts of the depositions of Wicker, Horne, Moore, and Young.

Trio's motion also asserted that it did not owe a duty to Shields, did not breach any duty owed, and was entitled to immunity under La. R.S. 9:2771. It attached the affidavit of its employee, Robert Wade, along with the depositions of Young, Wicker, and Horne.

H&W's motion argued that there was no evidence it was at fault in this matter. H&W did not assert immunity under La. R.S 9:2771. It attached the depositions of Wicker, Moore, Horne, Young, and excerpts from the depositions of Shields, Ferguson, and Williams.

The plaintiffs filed an opposition to the motions and attached some documents discussed below. The plaintiffs asserted that a contractor is not entitled to immunity under La. R.S. 9:2771, regarding damage to third parties, unless he had no justifiable reason to believe that adherence to the plans and specifications would create a hazardous condition. The plaintiffs contended there was no evidence that the plans were followed. They urged that the demolition of structures surrounded by water and electricity created a hazardous condition. The plaintiffs also claimed that the immunity provided by La. R.S. 9:2771 was limited by La. R.S. 9:2773 and La. R.S. 9:2775.

The defendants filed replies to the plaintiffs’ opposition arguing that the documents submitted by the plaintiffs were unsworn and unverified and not in compliance with the listing in La. C.C.P. art. 966 of documents that may be considered on a motion for summary judgment.

A hearing on the motions was held on August 5, 2019. It was clear from the arguments that the trial court had conducted an exhaustive review of the record. The plaintiffs argued that the electrical shock was caused by a break in the metal conduit to DP #2, which was patched together "at some point" with plastic pipe. The plaintiffs admitted they did not know when this occurred or who did it. The trial court noted that the plaintiffs had no evidence to show that any of the defendants breached any duties owed to the plaintiffs or were negligent in any way. Because there were no genuine issues of material fact, the trial court ruled that all the defendants were entitled to summary judgment on the facts, irrespective of La. R.S. 9:2771. On August 22, 2019, a written judgment was rendered granting summary judgment in favor of McInnis, Trio, Yor-Wic and H&W, dismissing the claims of the plaintiffs and the City.² The plaintiffs appealed.

MOTION FOR SUMMARY JUDGMENT

On appeal, the plaintiffs argue that the documentary evidence they submitted with their opposition to the motions for summary judgment contradicts the deposition evidence submitted by the defendants and creates a genuine issue of material fact, making the grant of summary judgment inappropriate. This argument is without merit.

Legal Principles

Appellate courts review motions for summary judgment de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate.³ Peironnet v. Matador Res. Co. , 12-2292 (La. 6/28/13), 144 So. 3d 791 ; Succession of Robinson , 52,718 (La. App. 2 Cir. 6/26/19), 277 So. 3d 454, writ denied , 2019-01195 (La. 10/15/19), 280 So. 3d 613.

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth , 10-0343 (La. 1/19/11), 57 So. 3d 1002. The procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). 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. C.C.P. art. 966(A)(3) ; Succession of Robinson , supra .

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Maggio v. Parker , 2017-1112 (La. 6/27/18), 250 So. 3d 874 ; Jackson v. City of New Orleans , 2012-2742 (La. 1/28/14), 144 So. 3d 876, cert. denied , 574 U.S. 869, 135 S. Ct. 197, 190 L.Ed. 2d 130 (2014) ; Saldana v. Larue Trucking, LLC , 52,589 (La. App. 2 Cir. 4/10/19), 268 So. 3d 430, writ denied , 2019-00994 (La. 10/1/19), 280 So. 3d 159.

In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Chanler v. Jamestown Ins. Co. , 51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied , 2017-01251 (La. 10/27/17), 228 So. 3d 1230 ; Marioneaux v. Marioneaux , 52,212 (La. App. 2 Cir....