322 So.3d 397
La. Ct. App.2021Background
- Boh Bros. contracted with the U.S. Army Corps of Engineers on the SELA project to build a deep concrete box culvert under Louisiana Avenue; plans required a steel retaining wall and a minimum six-foot chain-link safety fence around the neutral ground.
- On April 9, 2016 plaintiff Daniel Harris (legally blind) was found at the bottom of the culvert inside the fenced construction area; Harris has no recollection how he entered the site.
- Harris sued Boh Bros. for negligence (La. C.C. art. 2315); Boh Bros. moved for summary judgment asserting government-contractor immunity (Boyle) and lack of breach/causation.
- The trial court granted summary judgment; the Fourth Circuit initially reversed because Boh Bros. had not produced Corps-approved plans/specs for the fence.
- The Louisiana Supreme Court held Harris had judicially confessed that the first Boyle prong (government-approved reasonably precise specifications) was satisfied and remanded for further review.
- On remand the Fourth Circuit (this opinion) held genuine issues of material fact remain as to Boyle prongs 2 and 3 and as to negligence (duty/breach/causation); therefore it reversed the trial court's summary judgment and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Government-contractor immunity (Boyle prong 2: conformity to gov't specs) | Bohs failed to secure fence as required; evidence (inspection notes, photos) shows gates/openings and Bohs’ internal admissions that fence was not always closed. | Bohs says fence conformed to Corps specs; project manager affidavit states panels were tied/secured and Corps supervised/approved submittals. | Supreme Court removed prong 1 via judicial confession; on remand the appellate court found factual disputes about whether Bohs conformed to the (Corps) fencing specs, so immunity on this ground not appropriate on summary judgment. |
| Government-contractor immunity (Boyle prong 3: contractor warning) | Bohs knew fence was not consistently secured (inspection reports) and failed to warn Corps of that hazard. | Bohs says it had no knowledge of dangers unknown to the Corps and that Corps knew project risks. | Factual disputes remain whether Bohs had knowledge not shared with the Corps; prong 3 unresolved on summary judgment. |
| Negligence / duty, breach, causation and "open-and-obvious" defense | Harris: Bohs breached duty to maintain/secure fence, causing his fall. Open-and-obvious not applicable to a legally blind plaintiff; inspection reports create factual disputes on breach/causation. | Bohs: hazard was open and obvious to the public and Harris judicially confessed that; therefore no duty or breach and summary judgment appropriate. | Court rejects application of open-and-obvious as a bar at summary judgment here (negligence theory, case-specific facts, and plaintiff’s blindness); factual disputes on duty/breach/causation preclude summary judgment. |
Key Cases Cited
- Boyle v. United Techs. Corp., 487 U.S. 500 (U.S. 1988) (establishes three-prong government-contractor immunity test).
- Hercules, Inc. v. United States, 516 U.S. 417 (U.S. 1996) (addresses the scope of contractor protection in federal contract context).
- Trevino v. Gen. Dynamics Corp., 865 F.2d 1474 (5th Cir. 1989) (limits on Boyle protection and its application).
- Kerstetter v. Pacific Scientific Co., 210 F.3d 431 (5th Cir. 2000) (clarifies contractor’s warning duty requires actual knowledge).
- Roberts v. Benoit, 605 So.2d 1032 (La. 1992) (Louisiana’s duty-risk framework for negligence).
- Cichirillo v. Avondale Indus., Inc., 917 So.2d 424 (La. 2005) (judicial confession withdraws an issue from litigation).
- Cheatham v. City of New Orleans, 378 So.2d 369 (La. 1979) (principles governing judicial confessions).
- Harris v. Boh Bros. Constr. Co., 312 So.3d 565 (La. 2021) (La. Sup. Ct. finding that plaintiff judicially confessed Boyle prong one and remanding for further review).