Bеfore the Court are the following motions: 1) Fluor Enterprises, Inc.’s Motion for Partial Judgment on the Pleadings to Dismiss Negligent Failure to Warn Claims in the Third and Fourth Supplemental and Amended Administrative Master Complaints (Rec. Doc. 17751); and 2) CH2M Hill Constructors, Inc.’s and Shaw Environmental, Inc.’s Joint Rule 12(b)(6) Motion to Dismiss Failure to Warn Claims in the Third and Fourth Supplemental and Amended Administrative Master Complaints (Rec. Doc. 17753).
I. Background:
In this multi-district litigation (“MDL”), the plaintiffs are individuals who resided in emergency housing units (“EHUs”) provided by the Federal Emergency Manage
The plaintiffs allege that each of the contractor defendants “received a No-Bid contract from FEMA and was tasked with, amongst other things, performing significant functions in the transportation, delivery, installation, maintenance and repair, de-installation and refurbishment of the temporary housing units provided by FEMA to the victims of hurricanes Katrina and Rita in the States of Louisiana, Mississippi, Alabama, and Texas.” See Third Supplemental & Amended Administrative Master Complaint (Rec. Doc. 4486) (“AMC”) at ¶¶ 106-108. They assert claims against the contractor defendants under Louisiana law invoking three general theories: (1) that the contractor defendants are liable as “manufacturers” under the Louisiana Products Liability Act (LPLA); (2) that the contractor defendants are liable under Louisiana’s general law of negligence for increasing formaldehyde levels in the EHUs by way of cracks and increased moisture caused by improper installation (e.g., “blocking” or jacking the trailers with their weight off their wheel base) or improper maintenance; and (3) that the contractor defendants are liable under Louisiana’s general law of negligence for “failing to sufficiently warn the plaintiffs of the inherently dangerous properties or the foreseeable conditions of the temporary housing units when used for long term occupancy.” See AMC at ¶¶ 293-304.
The instant motiоn filed by Fluor Enterprises, Inc. (“FEI”) (Rec. Doc. 17751) addresses only the third theory of recovery: failure to warn under Louisiana’s general law of negligence.
II. Plaintiff’s Allegations:
A. General Allegations:
“The residence of each Named Plaintiff was rendered unhabitable following Hurricanes Katrina and/or Rita, leaving each plaintiff homeless” and with “nowhere else to go ... in the aftermath of the greatest natural disaster in the history of the United States.” AMC ¶¶ 128, 171. FEMA responded to this emergency situation pursuant to “the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 4121, et seq. (the ‘Stafford Act’),” which enables FEMA to provide temporary housing assistance by providing either “financial assistance” or “direct assistance” in “the form of temporary housing
“Plaintiffs submit that each of the housing units ... purchased by FEMA, contained dangerous levels of formaldehyde due to the Manufacturing Defendants’ use of certain materials in their construction, and/or posed the threat of producing dangerous levels of formaldehyde due to the Federal Government’s intended use of the housing units as temporary residences for at least 18 months, but that the Manufacturing Defendants failed to warn the Federal Government about these dangers .... ” AMC ¶ 133. “Formaldehyde is found in construction materials such as particle board, fiberboard and plywood, as well as glues and adhesives used in the manufacture of the housing units.” AMC ¶ 136. According to plaintiffs, federal law required display of a health notice, which reads in part: “Some of the building materials used in this home emit formaldehyde. Eye, nose and throat irritatiоn, headache, nausea, and a variety of asthma-like symptoms, including shortness of breath, have been reported as a result of formaldehyde exposure. Elderly persons and young children, as well as anyone with a history of asthma, allergies, or lung problems, may be at greater risk. Research is continuing on the possible long-term effects of exposure to formaldehyde.” Id. Plaintiffs allege that formaldehyde has been classified as a “probable human carcinogen by the U.S. Environmental Protection Agency (“EPA”)” and that, according to the Agency for Toxic Substances and Disease Registry (“ATSDR”), “there is no recognized safe level of exposure, and ... any level of exposure to formaldehyde may pose a cancer risk, regardless of duration.” AMC ¶ 137.
According to plaintiffs, “the Federal Government was conducting initial formaldehyde air sampling of the subject housing units at FEMA staging facilities in Mississippi as early as October 11, 2005 and as late as Jan. 17, 2006.” AMC ¶ 175. Plaintiffs allege that these “sampling results showed that the levels detected in nearly every trailer exceeded the ATSDR minimum risk levels associated with exposures up to and exceeding 14 days, that most levels exceeded the EPA recognized level at which acute health effects can manifest, and that several exceeded the OSHA workplace maximum levels.” Id.
B. Allegations Against the Contractor Defendants:
Plaintiffs allege that after procuring the EHUs, the United States government contracted with the “No-Bid Defendants” (referred to herein by the Court as the “contractor defendants”), tasking them “with the transportation, installation, site identification and preparation of locations and group sites, preparation of infrastructure to handle the units, inspection of the temporary housing units, maintenance and repair, refurbishment and restoration, and the eventual de-installation and removal of the units.” AMC ¶ 152.
1. Pick-up, Transport, and Deliverg of the EHUs:
“The No-Bid Defendants contracted with FEMA to pick-up and transport the
2. Installation of the EHUs:
“Once the temporary housing unit(s) ... were transported and delivered to a particular location, the No-Bid Defendants had the responsibility for installing that temporary housing unit.” AMC ¶ 157. “The No-Bid Defendants installed the temporary housing units by ‘blocking’ the unit,’ ” which “meant raising the plaintiffs unit several feet into the air and off of its wheel base, and setting it on concrete blocks.” Id. Plaintiffs allege that by blocking the units, “the No-Bid Defendants created stress and flexing on the frames of the unit as it w[as] not designed to be lifted off ... the wheel base.” AMC ¶ 158. According to plaintiffs, “[t]he stress and flexing of temporary housing units’ frames caused by the No-Bid Defendants’ ‘blocking’ them with weight off of the wheels created distortion in the travel trailer’s shell allowing increased moisture intrusion which contributed to increased formaldehyde exposures.” AMC ¶ 159.
Plaintiffs further allege that “temporary housing unit(s) ... provided by FEMA were for the most part travel trailers ... designed for and intended for periodic, recreational use and not for long-term habitation.” AMC ¶ 160. They allege that “[b]y installing the travel trailers on concrete blocks for extended occupancy, the No-Bid Defendants knowingly and intentionally modified the design and the actual use of these units ... by converting them into a temporary housing unit to be used as a residence for long term occupancy in some instances exceeding 18 months.” Id. According to plaintiffs, “[t]he No-Bid Defendants failed to consult with the manufacturers of the temporary housing units, including the Manufacturing Defendants, with regard to the installation, warnings, warranty issues or advisability of using travel trailers for long term residence and occupation.” AMC ¶ 161.
3. Inspection of the EHUs:
According to the plaintiffs, “the No-Bid Defendants were tasked with inspecting each unit to ensure that it was safe and habitable, prior to occupancy by the plaintiffs).” AMC ¶ 162. Plaintiffs infer from this, “[u]pon information and belief,” that the contractor defendants were obligated “to ensure that the units were safe and suitable for their intended use — the long-term occupancy by individuals and families displaced by hurricanes Katrina and Rita” and that they failed to do so. Id.
4. Maintenance and Repair of the EHUs:
The plaintiffs allege that “the temporary housing units ... were also managed, maintained and repaired by one of the No-Bid Defendants, or their various subcontractors over whom they maintained direct oversight and responsibility.” AMC ¶ 163. With regard to these alleged maintenance obligations, plaintiffs allege that “the No-Bid Defendants failed to undertake appropriate action, maintenance or repair in response to numerous complaints made by
5. De-Installation of the EHUs:
“Following the plaintiffs’ occupancy of each temporary housing unit, the No-Bid Defendants were taskеd with its de-installation.” AMC ¶ 165. Plaintiffs conclude from this that the contractor defendants became obligated “[u]pon discovering the deteriorated condition of the temporary housing units at the time of de-installation and removal ... to identify the unsuitability of the temporary housing units for long-term occupancy” and failed to do so. Id.
6. Refurbishment and Restoration of the EHUs:
“[T]he No-Bid Defendants were tasked with refurbishment and restoration of the temporary housing units for use, either in direct response to hurricanes Katrina and Rita or for use in the future.” ÁMC ¶ 166. Plaintiffs conclude that “[b]y restoring and refurbishing these temporary housing units, the No-Bid Defendants warranted that the units were fit for ... long term occupancy in response to disaster related displacement” and “created and perpetuated existing hazardous conditions which would foreseeably lead to adverse health effects caused by the elevated levels of formaldehyde in the temporary housing units,” which “in thousands of cases ... were immediately occupied by new individuals or families displaced by hurricanes Katrina and Rita, and who were then directly exposed to hazardous levels of formaldehyde.” Id.
III. Plaintiff’s Failure to Warn Claims Under Louisiana’s General Law of Negligence:
FEI moves pursuant to Rule 12(c) to dismiss the negligent failure to warn claim on grounds that it. had no duty under Louisiana negligence law to warn the plaintiffs of possible elevated levels of formaldehyde in the trailers or of the potential risks associated with formaldehyde.
A. Standard for Dismissal under Rule 12(c):
The Court should “evaluate a motion under Rule 12(c) for judgment on the pleadings using the same standard as a motion to dismiss under Rule 12(b)(6) for failure to state a claim.” Gentilello v. Rege,
The Court “must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party.” In re Southern Scrap Material Co., LLC,
B. Louisiana’s General Law of Negligence:
To determine whether the complaint states a claim for negligent failure to warn, the Court turns to the substantive law of Louisiana.
In making this determination, the Supreme Court of Louisiana has employed a “duty-risk” analysis. To establish liability for negligence, a plaintiff must prove each
Thus, the “threshold issue in any negligence action is whether the defendant owed the plaintiff a duty.” Lemann v. Essen Lane Daiquiris, Inc.,
“In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented.” Lemann,
C. Duty to Warn:
Here, the plaintiffs do not allege that FEI or any other of the contractor defendants
FEI argues that Louisiana law imposes an affirmative duty to warn in only three circumstances: 1) on manufacturers under the LPLA;
1. “Special Relationships” Giving Rise to an Affirmative Duty to Warn:
The Louisiana Supreme Court has stated that, [t]ypieally, in cases such as this, where the alleged wrongful conduct of the defendant is a failure to act or ‘nonfeasance,’ courts have found it necessary for some definite relationship between the parties to exist, such that social policy justifies the imposition of a duty to act upon the defendant.” Fox v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.,
In the context of duty to warn, the Louisiana Supreme Court has stated that a “duty to disclose exists where the parties stand in some confidential or fiduciary relation to one another, such as that of principal and agent or executor and beneficiary of an estate.” Bunge Corp. v. GATX Corp., 557 So.2d 1376, 1383-84 (La.1990); see also Kadlec Medical Ctr. v. Lakeview Anesthesia Assocs.,
Plaintiffs have failed to articulate any relationship with FEI that would bring them within the cases in which courts have imposed a duty on this basis. Nor have they cited a single case that would support this Court in doing so. Rather, plaintiffs argue that a special relationship exists here because they are the “intended beneficiaries” of FEI’s work under its contract with FEMA. Essentially, plaintiffs’ argument is that a “special relationship” arose between FEI and the plaintiffs by virtue of FEI’s contractual obligations to FEMA and that this special relationship gave rise to an affirmative duty to provide information and warnings to the plaintiffs. Plaintiffs have cited no law to support this argument,
Even in cases where the defendant has contracted to provide a third person with the very information that the plaintiffs claim would have prevented their harm, courts are reluctant to find an affirmative duty to disclose to persons outside the contract. For example, in Smith v. State Farm Ins. Cos.,
Likewise, in Lemaire v. Breaux,
One exception where Louisiana courts have extended a contractual duty to provide accurate information to third persons outside the contract is where the third person is known to the defendant to be the intended end-user of the report or information it was hired to produce. In Barrie v. V.P. Exterminators, Inc.,
Before reaching its decision, the Barrie court surveyed Louisiana jurisprudence to determine under what circumstances courts had found a duty to provide accurate information to third persons outside
Barrie extended the duty scenario slightly. Although Barrie was a case of misinformation (as opposed to non-disclosure), the defendant had not delivered the report directly to the plaintiff or the plaintiffs agent or otherwise had contact with the plaintiffs, as had been the case in previous scenarios where courts had extended a contractual duty beyond the contract (absent a fiduciary or confidential relationship). The court concluded that the inspector nevertheless owed a duty to the plaintiffs “because they were known to [the inspector] as the intended users of the report.”
Other negligent misrepresentation cases aré instructive as well, including cases where the defendants did not contract to provide information but possessed for their own purposes information that would have prevented or mitigated the plaintiffs harm had it been disclosed to the plaintiff. For example, in McLachlan v. New York Life Ins. Co.,
A similar holding was reached in Kadlec Medical Center v. Lakeview Anesthesia Associates,
Here, the plaintiffs have alleged no facts that would bring them within the cases finding an affirmative duty to disclose or warn. As discussed in more detail in the Court’s analysis section below, the plaintiffs do not allege that FEI was engaged by FEMA to provide information related to formaldehyde or to any hazardous substances in the trailers. Moreover, even if they had made such allegations, such that the Court might draw a reasonable inference that FEI owed a contractual duty to provide such information to FEMA, the plaintiffs have failed to allege any special circumstances that would justify imposing an affirmative duty on FEI to provide such information to the plaintiffs. The plaintiffs have alleged no affirmative misstatement by FEI or any other factors such as those that led to the imposition of a duty in Barrie. Nor have the plaintiffs alleged facts that would support the finding of a
2. Custody or Garde under Civil Code Articles 2317:
FEI is correct that one source of a duty to warn is Civil Code articles 2317 and 2317.1, which make us responsible for damages caused by “the things which we have in our custody.” La. Civ.Code Ann. art. 2317 (2010).
Liability under article 2317 “arises from the guardian’s legal relationship to the thing whose defect creates an unreasonable risk of injury to others.” King v. Louviere,
Pretermitting the question of benefit derived from the thing, plaintiffs’ argument for garde fails here because they
Here, plaintiffs аllege that FEMA hired the contractor defendants (including FEI) to pick up and haul the EHUs that FEMA had purchased, deliver them to a designated location (either the plaintiffs private property or a temporary trailer park), and install them (e.g., hook up electrical, water, and sewer lines) for the plaintiffs to occupy as temporary shelter. It is alleged that during the plaintiffs’ occupancy, FEMA tasked certain of the contractor defendants with maintenance obligations, requiring them to perform repairs on the EHUs as needed. Following a plaintiffs occupancy, it is alleged that FEMA tasked contractor defendants with de-installing and removing the EHU from the property and that, in some cases, contractor defendants were then hired to repair and refurbish the EHU for occupancy by another household displaced by the hurricanes.
Nothing in the allegations supports a reasonable inference that FEI had a relationship to any of the EHUs so as to have the right of direction and control over them. There is nothing to suggest that FEI had a right to access and/or enter the EHUs at will, to use, alienate, encumber, or lease any of the EHUs, or to alter the EHUs at will. Nor is there any allegation that would support an inference that FEI had exclusive care and custody of the EHUs. Thus, custody or garde under article 2317 cannot serve as a basis for finding a duty to warn on the part of FEI.
3. Voluntary Assumption of a Duty:
While the plaintiffs half-heartedly disagree with FEI’s arguments that it had
Louisiana courts have long held that where a person voluntarily undertakes to perform a task, he thereby assumes the duty to exercise reasonable care in the performance of that task and may be held liable for damages caused by the breach of that duty, even though he may have had no prior obligation to perform the task. See, e.g., LeBlanc v. Stevenson,
Here, as set forth above, the plaintiffs allege that FEMA hired the contractor defendants (including FEI) to pick up and haul the EHUs that FEMA had purchased, to deliver them to a designated location (either the рlaintiffs private property or a temporary trailer park), to inspect them for habitability, and to install them (e.g., hook up electrical, water, and sewer lines) for the plaintiffs to occupy as a temporary shelter. In addition, FEMA tasked certain of the contractor defendants with maintenance obligations, requiring them to perform repairs on the EHUs as needed, and with de-installing and removing the EHU once the plaintiffs occupancy had ended. In certain cases, contractor defendants were hired to repair and refurbish a de-commissioned EHU for occupancy by another person or family displaced by the hurricanes. Thus, for purposes of this Rule 12(c) motion, it reasonably may be inferred that FEI affirmatively undertook to perform these tasks (i.e., to haul, install, repair, and maintain the EHUs) and therefore necessarily assumed a duty to perform these tasks with reasonable care. Indeed, the Court already has held that the plaintiffs have stated a claim against FEI for negligence in the performance of these duties.
It is also fathomable that, under certain faсtual scenarios, such duty to exercise reasonable care in the performance its tasks might entail a duty to warn. For example, FEI possibly would have had a duty to warn plaintiffs to the extent that its actions in carrying out its tasks directly increased the risk of harm to the plaintiffs.
D. Duty-Risk Analysis:
As set out above, the plaintiffs have made no factual allegations that would support finding garde or a special relationship as a source of a duty to warn on the part of FEI. Nor have the plaintiffs pointed to any other law or rule that would impose a duty to warn under the circumstances, other than the doctrine of voluntary assumption. However, this doctrine imposes a duty of reasonable care only with regard to willful affirmative undertak
The policy considerations also weigh against finding a duty to warn on the part of FEI.
The particular circumstances surrounding this case weigh even further against the imposition of such a duty than the ordinary case of a contractor hired to haul and install a trailer or mobile home. Here, the United States government made the decision to provide travel trailers for use as temporary shelters to those rendered homeless in the wake of hurricanes Katrina and Rita. ' As FEI points out: “Imagine the disruption and delay that would have • ensued- had FEI, of its own accord, shut down the housing assistance effort to test every trailer for possible airborne contaminates or other possible dangers, when the government had expressly contracted for prompt provision of housing to displaced residents of the Gulf Coast.” Rec. Doc. 1775.1-1 at 8-9.
Thus, for all these reasons, the Court concludes that FEI owed the plaintiffs no duty to warn about the dangers of formaldehyde under the general negligence law of Louisiana. Further, the Court finds that FEI owed no duty to “warn the plaintiffs of the inherently dangerous properties or the foreseeable conditions of the temporary housing units when used for long term occupancy.” AMC ¶ 302(a). Conse
IV. Plaintiffs’ Failure to Warn Claims Under Alabama, Mississippi, or Texas Law:
In addition to adopting FEI’s motion to dismiss plaintiffs’ failure-to-warn claims under Louisiana law, CH2M and Shaw also seek dismissal of plaintiffs’ failure-to-warn claims under Alabama, Mississippi, and Texas law. See Movant’s Memorandum in Support at p. 2 (Rec. Doc. 17753). Their motion papers, however, fail to set forth the applicable law of any state. Based on this showing, their motion is denied to the extent that it seeks dismissal of any claims other than those for failure to warn under Louisiana’s general law of negligence. Accordingly, for all of these reasons,
IT IS ORDERED that:
1) Fluor Enterprises, Inc.’s Motion for Partial Judgment on the Pleadings to Dismiss Negligent Failure to Warn Claims in the Third and Fourth Supplemental and Amended Administrative Master Complaints (Rec. Doc. 17751), is hereby GRANTED; and
2) CH2M Hill Constructors, Inc.’s and Shaw Environmental, Inc.’s Joint Rule(b)(6) Motion to Dismiss Failure to Warn Claims in the Third and Fourth Supplemental and Amended Administrative Master Complaints (Rec. Doc. 17753) is hereby GRANTED IN PART, in that it is granted with respect to plaintiffs’ negligent failure to warn claim under Louisiana’s general law of negligence, and DENIED IN PART, in that it is denied in all other respects.
Notes
. Both FEI and the plaintiffs refer in their memoranda to the plaintiffs' LPLA claim. In an Order and Reasons dated September 11, 2009, the Court granted FEI's motion for partial summary judgment in the Alexander bellwether case, dismissing the bellwether plaintiffs’ LPLA claims upon finding that FEI was not a "manufacturer” of the EHU in that case. (Rec. Doc. 3217). That ruling was made based upon the summary judgment evidence. No such evidence is before the Court in connection with the instant motion. Moreover, the parties have not briefed the issue. Accordingly, this Order and Reasons is limited to the plaintiffs' claim for failure to warn under Louisiana’s general law of negligence. It does not address plaintiffs' LPLA claim.
. To the extent that the motion filed by CH2M and Shaw (Rec. Doc. 17753) adopts FEI’s motion and thereby seeks to dismiss plaintiffs’ negligent failure-to-warn claims under Louisiana law, then it is included in the Court’s disposition of FEI's motion. Thus, the Court’s reasoning, findings, and conclusions with regard to FEI extend likewise to CH2M and Shaw. To the extent that Shaw’s and CH2M's motion also seeks dismissal of failure-to-warn claims brought under the laws of states other than Louisiana, it is addressed separately below.
. In Wiltz v. Bayer CropScience Ltd. P’ship,
When faced with unsettled questions of Louisiana law, we adhere to Louisiana's Civilian decision-making process by first examining primary sources of law, namely, Louisiana’s Constitution, codes, and statutes. Moore v. State Farm Fire & Cas. Co.,556 F.3d 264 (5th Cir.2009). This is because the primary basis of Louisiana's Civil Law is legislation and not the prior decisions of its courts. In Re: Katrina Canal Breaches Litig.,495 F.3d 191 , 206 (5th Cir. 2007). In the absence of a definitive resolution in the State’s primary sources, however, we look next to the final decisions of the Louisiana Supreme Court. Moore,556 F.3d at 269 . Only in the absence of such a final decision must we make an “Erie guess” as to how that court would resolve the issue if presented with the same case. Id. Although we do not disregard the decisions of Louisiana's intermediate courts unless we are convinced the Louisiana Supreme Court would decide otherwise, we are not strictly bound by them.
. Another formulation of duty-risk is: "(1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendаnt's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause-in-fact element);' (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element).” Lemann v. Essen Lane Daiquiris, Inc.,
. See also McLachlan v. New York Life Ins. Co.,
. Although the Court refers to FEI throughout this analysis, the plaintiffs' allegations against Shaw and CH2M are identical to those against FEI. Thus, the Court’s reasoning, findings, and conclusions herein apply equally to Shaw and CH2M unless specifically stated otherwise.
. As discussed supra, plaintiffs' LPLA claim is not addressed here.
. See Strickland,
. The cases cited by the plaintiffs relate to the doctrine of “voluntary assumption” of a duty, which is discussed separately below.
. The court also dismissed the plaintiffs' claim of stipulation pour autrui claim, finding that the contract between the insurer and the consultant had not stipulated a benefit for the plaintiffs. Smith,
. See also McLachlan v. New York Life Ins. Co.,
. "In Louisiana, ‘[a]lthough a party may keep absolute silence and violate no rule of law or equity, ... if he volunteers to speak and to convey information which may influence the conduct of the other party, he is bound tо [disclose] the whole truth.’ ” Kadlec,
. The court also found that the defendants lacked the requisite pecuniary interest in providing the information. Kadlec,
. Liability under article 2317, which was once strict liability, was modified in 1996 by the addition of article 2317.1, which states in part: "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.” La. Civ. Code Ann. art. 2317.1 (2010); see Price v. Martin,
. Contrary to statements by FEI, application of article 2317 is not restricted to immovable things. See, e.g., King v. Louviere,
. See Doughty,
. Butler v. Re/Max New Orleans Props., Inc.,
. See Bethea v. Great Atlantic & Pacific Tea Co., 22 So.3d 1114, 1116 (La.Ct.App. 4th Cir. 2009).
. See also Blair v. Tynes,
. See Bujol v. Entergy Servs., Inc.,
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect [perform] his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Id. at 1128 (brackets in original) (quoting Rest.2d § 324A). The Louisiana Supreme Court has employed the Restatement’s formulation of the doctrine in the context of determining the liability, if any, of a parent corporation for injuries sustained by a subsidiary’s employee. Id. 1128-38.
. See Order and Reasons, dated April 27, 2011 (Rec. Doc. 20847). Specifically, plaintiffs' negligencе claim is that by "jacking” and "blocking” the EHUs, the contractor defendants caused stress and flexing of the EHUs' frames, which distorted the EHUs’ shells, allowing for increased moisture intrusion and formaldehyde exposure. See AMC ¶¶ 157-59.
. See, e.g., Brooks v. Henson Fashion Floors, Inc.,
. In deciding whether to impose a duty in a particular case, the court must make a policy decision and in doing so, “may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association betweén the plaintiff's harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant's activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving.” Meany,