Robert Lomax v. Transdev Services, Inc. and Abc Insurance CompanyRobert Lomax v. Transdev Services, Inc. and Abc Insurance Company
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet)
Charlsey J. Wolff
THE LAW OFFICE OF WOLFF & WOLFF
2800 Veterans Memorial Blvd., Suite 204
Metairie, LA 70002
COUNSEL FOR PLAINTIFF/APPELLANT
Lance S. Ostendorf
Philip A. Costa
650 Poydras Street, Suite 1460
New Orleans, LA 70130
COUNSEL FOR INTERVENORS/APPELLANTS
Kriste Talton Utley
Ross A. Ledet
BOYKIN & UTLEY
400 Poydras Street, Suite 1540
New Orleans, LA 70130
COUNSEL FOR DEFENDANTS/APPELLEES
REVERSED
This is a premises liability case arising out of a delivery driver‘s fall into a mechanic‘s pit. The plaintiff—Robert Lomax1—appeals the trial court‘s judgment granting the summary judgment motion filed by the defendants—Transdev Services, Inc.;2 Regional Transit Authority (“RTA“); and Veolia Transportation Maintenance and Infrastructure, Inc.3—and dismissing the case. For the reasons that follow, we reverse the trial court‘s judgment and remand.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying accident occurred on April 10, 2017, while Mr. Lomax was making a delivery for his employer, Coca-Cola, at the RTA‘s facility where its buses are serviced.4 This delivery was Mr. Lomax‘s last one for the day. On this
occasion, he was delivering a replacement machine to one of the break rooms at the RTA‘s facility. Although Mr. Lomax had been to the
When he arrived at the RTA‘s facility on this occasion, Mr. Lomax checked in at the front gate and parked his truck as close as possible to the break room where the replacement machine was to be delivered. According to Mr. Lomax, no one ever told him, either through his employer or someone at RTA, where to park or where to unload vending machines; and there was no signage at the RTA‘s facility indicating where deliveries should be made.
Given the size and weight of all its vending machines, Coca-Cola required that more than one of its employees deliver its machines. It also was customary that Coca-Cola employees make a pre-trip inspection. On this occasion, Terrell Spenser, another Coca-Cola employee, accompanied Mr. Lomax to deliver the replacement machine, which had a glass front and weighed about 800 pounds. Mr. Lomax and Mr. Spenser chose to deliver the replacement machine through the closest garage bay.
Before taking the replacement machine off the truck, Mr. Lomax and Mr. Spenser conducted the customary, pre-trip inspection, walking the route from Mr.
Lomax‘s truck to the break room.5 While making the pre-trip inspection, neither Mr. Lomax nor Mr. Spenser noticed the mechanic‘s pit located in the garage bay through which they planned to deliver the replacement machine—bay #18. In his deposition, Mr. Lomax explained that he did not pay attention to the mechanic‘s pit because he saw the bus was there in that garage bay.
After their pre-trip inspection, Mr. Lomax and Mr. Spenser placed the replacement machine on a regular pallet jack. Mr. Lomax took the front end of the loaded pallet jack; Mr. Spenser took the back end. Mr. Spenser walked and pushed forward; Mr. Lomax walked and pulled backwards. As Mr. Lomax was doing so, he fell into the mechanic‘s pit, sustaining injuries to his shoulder and rotator cuff. This suit followed.
After answering the suit and conducting discovery, Transdev filed a summary judgment motion, contending that it owed no duty to Mr. Lomax because the mechanic‘s pit was open and obvious. Transdev emphasized that Mr. Lomax acknowledged he was aware of the presence of mechanic‘s pits at the RTA‘s facility. Citing the deposition testimony of Mr. Lomax and Mr. Spenser, Transdev further contended that it could not be liable because Mr. Lomax‘s own actions—walking backwards, pulling a loaded pallet jack—were the sole cause of the accident.
Transdev introduced three types of evidence in support of its summary judgment motion: (i) excerpts from Mr. Lomax‘s and Mr. Spenser‘s depositions;
(ii) copies of photographs of the accident scene authenticated by Mr. Spenser in his deposition; and (iii) an affidavit from Transdev‘s Director of Bus Maintenance, Jacques Robichaux.
Both Mr. Lomax and Mr. Spenser testified in their depositions that when the accident occurred, Mr. Lomax was walking backwards, pulling a loaded pallet jack.
When I jacked the machine up, I was pulling it and I was backing up and I had a little hump, so as I‘m pulling, I pulled and I told my partner to hold it so it wouldn‘t rock. So as I‘m pulling back, I stepped into a little pit and that‘s when I fell on my shoulder, and then my leg was hanging in the little pit. I was holding onto the pallet jack so I wouldn‘t fall down.
The photographs reflect that RTA bus #198 was parked in the garage bay #18 where the accident occurred. The photographs also reflect that the bus was parked in a position that only partially covered the mechanic‘s pit located beneath it. The position that the bus was parked in left a gap—estimated by Mr. Lomax‘s counsel to be three to four feet—between the front of the bus and the front of the mechanic‘s pit.
In his affidavit, Transdev‘s Bus Maintenance Director, Mr. Robichaux, attested to the following three facts:
- There is a large loading bay at the RTA‘s facility providing unencumbered access to the break room where the vending machine was to be delivered;
- There are painted markings on the floor of the RTA garage noting safe walking paths; and
- Bus #198 was being serviced in garage bay #18 on April 10, 2017, and therefore bay #18 had no barrier covering the open mechanic‘s pit located beneath the bus.
Opposing the summary judgment motion, Mr. Lomax introduced excerpts from the same two witnesses’ (Mr. Lomax‘s and Mr. Spenser‘s) depositions, copies of various photographs (including some of the same ones that Transdev introduced), and copies of Occupational Safety and Health (“OSHA“) regulations. Transdev filed a motion to strike some of Mr. Lomax‘s exhibits: (i) certain of the photographs given that those photographs were unauthenticated; (ii) copies of OSHA regulations given Mr. Lomax was not its employee; and (iii) hearsay statements in Mr. Spenser‘s deposition given such statements were not proper evidence.6 At the hearing, the trial court granted Transdev‘s motion to strike and its summary judgment motion.7 This appeal followed.
DISCUSSION
Although Mr. Lomax assigns three errors on appeal,8 the gist of his argument is that the trial court erred in granting
motion and dismissing his suit. In reviewing a trial court‘s judgment granting a summary judgment motion, an appellate court applies a de novo standard and employs the same criteria that are initially employed by the trial court under
- The summary judgment procedure is favored and shall be construed to “secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.”
La. C.C.P. art. 966(A)(2) . - The governing statutory provision,
La. C.C.P. art. 966 , provides that a motion for summary judgment shall be granted if, “[a]fter an opportunity for adequate discovery,” 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) . - “A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Bufkin v. Felipe‘s La., LLC, 14-0288, p. 3 (La. 10/15/14), 171 So.3d 851, 854.
- “[T]he burden of proof remains with the movant. [But], if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party‘s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” Id.
- “This [burden shifting] requires the [non-moving party] to make a positive showing of evidence creating a genuine issue as to an essential element of [its] claim; mere speculation is not sufficient.” Finch v. HRI Lodging, Inc., 49,497, p. 7 (La. App. 2 Cir. 11/19/14), 152 So.3d 1039, 1043.
- Whether a fact is material is a determination that must be made based on the applicable substantive law. Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270; Maddox v. Howard Hughes Corp., 19-0135, p. 5 (La. App. 4 Cir. 4/17/19), 268 So.3d 333, 337.
Harmonia, 20-0253, 20-0254, p. 6, n. 9, 311 So.3d at 526.
Because Transdev will not bear the burden of proof at trial, Transdev‘s burden as the moving party was to show an absence of factual support for one or more elements of Mr. Lomax‘s claim—a premises liability claim. The applicable substantive law governing a premises liability claim is set forth in
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.
To prevail on a premises liability claim under
- The thing was in the custodian‘s custody or control;
- It had a vice or defect that presented an unreasonable risk of harm;
- The defendant knew or should have known of the unreasonable risk of harm; and
- The damage was caused by the defect.
Szewczyk v. Party Planners W., Inc., 18-0898, pp. 7-8 (La. App. 4 Cir. 5/29/19), 274 So.3d 57, 62.
Transdev‘s summary judgment motion was based on Mr. Lomax‘s alleged inability to meet the second, third, and fourth elements; it did not dispute the first element—custody. All three disputed elements are premised on proof of a defect. As used in
In granting Transdev‘s summary judgment motion, the trial court—complying with
court shall state on the record or in writing the reasons for granting or denying the motion“—provided the following oral reasons: “[t]he Court finds that the Plaintiff—you did meet the burden under the article 2317, but Plaintiff did not prove that the mechanic [pit] had represented an unreasonably dangerous condition.”11 The trial court‘s reason for granting the summary judgment motion, thus, was its finding that
Again, the open and obvious condition is considered under the second part of the risk-utility balancing test—whether the dangerous condition was obvious and apparent. Bufkin, 14-0288, p. 6, 171 So.3d at 856. Addressing this issue, the Louisiana Supreme Court in Bufkin observed:
Under Louisiana law, a defendant generally does not have a duty to protect against that which is obvious and apparent. In order for an alleged hazard to be considered obvious and apparent, this court has consistently stated the hazard should be one that is open and obvious to everyone who may potentially encounter it. Broussard v. State ex rel. Office of State Buildings, 113 So.3d at 184; Hutchinson v. Knights of Columbus, Council No. 5747, 866 So.2d at 234.
14-0288, p. 7, 171 So.3d at 856.
In the Broussard case, the Supreme Court observed that “whether a defect presents an unreasonable risk of harm is ‘a matter wed to the facts’ and must be determined in light of facts and circumstances of each particular case.” 12-1238 at
p. 9, 113 So.3d at 183. “Clarifying Broussard, the Supreme Court, in a trio of cases, held that, absent any material factual issue, the summary judgment procedure can be used to determine whether a defect is open and obvious and thus does not present an unreasonable risk of harm.” Jones v. Stewart, 16-0329, p. 14 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 393.12 This is not such a case.
Transdev‘s argument, framed in its memorandum in support, is as follows:
Louisiana jurisprudence is replete with decisions granting summary judgment, and affirmed on appeal, when a plaintiff trips while walking backwards. In most instances the court finds both the property did not constitute an unreasonable risk of harm (i.e. open and obvious), and the plaintiff[‘]s own actions in walking backwards was the cause-in-fact of the resulting injury.
In addressing this argument, we split our analysis into two separate components—(i) causation; and (ii) open and obvious condition.
Causation
Transdev contends that Mr. Lomax‘s injuries were caused by his own inattention in blindly walking backwards and that his actions were the sole cause in-fact of the accident. Mr. Lomax counters that his actions may have been a factor in causing the accident, but his actions were not the sole cause. Mr. Lomax submits that this is a comparative fault case. We agree.
In addressing this issue, we find our analysis in Warren v. Kenny, 10-1580 (La. App. 4 Cir. 4/27/11), 64 So.3d 841, instructive. There, we reversed a trial court‘s judgment granting summary judgment in favor of a defendant-premises owner in a
In Warren, the plaintiff fell “descending [going backwards down] an A-frame tethered and locked ladder.” 10-1580, p. 3, 64 So.3d at 844. Reversing, we observed that “even though [the plaintiff‘s] decision to use the ladder and climb over (or under) the railing may have been unreasonable—as the trial court found—and may ultimately result in the fact finder allocating a substantial percentage of the fault to her, we cannot conclude on the basis of this record that it precludes her recovery as a matter of law.” Id., 10-1580, p. 10, 64 So.3d at 849. The same is true here. Stated otherwise, this is not a case in which, as a matter of law, we can conclude that 100% of the fault is on Mr. Lomax for walking backward, pulling a loaded pallet jack.
Moreover, to the extent the trial court accepted Transdev‘s argument regarding Mr. Lomax‘s own alleged negligence in walking backward in finding an open and obvious condition, “this is inconsistent with the unreasonable harm analysis under Louisiana law, which ‘focuses on the global knowledge of everyone who encounters the defective thing . . . [but] not the victim‘s actual or potentially ascertainable knowledge.‘” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 617 (5th Cir. 2018) (quoting Broussard, 113 So.3d at 188). A plaintiff‘s possible negligence can be considered “not as a complete bar to recovery via summary
judgment, but rather through comparative fault principles.” Id. at 618 (citing Broussard, supra, and
Open and Obvious Condition
The second part of Transdev‘s argument is that the mechanic‘s pit was an open and obvious condition. In support, Transdev cites the following facts: (1) the mechanic‘s pit is identified by brightly painted caution-yellow markings on the ground; and (2) Mr. Lomax admitted he knew of the pits located at the RTA‘s facility, but simply “didn‘t pay attention to the pit” during his pre-trip inspection on the day of the accident. Mr. Lomax counters that his deposition statement that he did not pay attention to the pit included an explanation—that he did not notice the pit because he saw the RTA bus there. Continuing,
As noted elsewhere in this opinion, the trial court, in its reasons for judgment, found that the mechanic‘s pit was an open and obvious condition. Although a mechanic‘s pit has been classified as an open and obvious condition,15
the issue in this case is not simply whether the mechanic‘s pit, in and of itself, was an open and obvious condition. Rather, the issue is whether the three to four foot gap created by the presence of the bus—parked partially over the uncovered mechanic‘s pit—was an open and obvious condition. Framing the issue in this manner, we find this case falls within the category of cases in which the jurisprudence has found case-specific factual issues preclude summary judgment. See Jimenez v. Omni Royal Orleans Hotel, 10-1647, pp. 11-12 (La. App. 4 Cir. 5/18/11), 66 So.3d 528, 534-35.16
An example of this category of cases that is instructive here is presented in Cox v. Baker Distrib. Co., L.L.C., 51,587 (La. App. 2 Cir. 9/27/17), 244 So.3d 681. There, the plaintiff was injured while delivering material on pallets onto a loading dock. The loading dock lacked an operable dock plate—a device generally used to bridge the gap between the back of a truck and the loading dock. The trial court
determined that the lack of an operable dock plate was an open and obvious condition and, on that basis, granted the defendant‘s summary judgment motion. Reversing, the appellate court in Cox observed:
Clearly, a reasonable person encountering this situation would consider the rift between a truck and a loading dock [created by the lack of an operable dock plate] an open and obvious hazard in and of itself, which the trial court might have properly noted. However, in this case it is the relationship between that nonexistent dock plate and the other conditions present at the time Cox [the plaintiff] made his delivery that gives rise to fact-specific issues, those being: the actual width of the gap between the truck and the loading dock; the crowdedness of the loading dock; the inability to use proper equipment because of that crowdedness;
and, the lack of assistance in unloading the truck, given the tight situation on the loading dock.
Cox, 51,587, p. 8, 244 So.3d at 685 (citing Jones v. Stewart, 16-0329 (La. App 4 Cir. 10/05/16), 203 So.3d 384 (observing that granting defendant‘s summary motion was error given that condition in homeowner‘s attic was not necessarily an open and obvious risk considering other conditions existing contemporaneously—homeowner‘s attic was unfinished, unlit, and wet)).17
The appellate court in Cox concluded that “considering not only the lack of a dock plate on the Baker [defendant‘s] loading dock, but the overall condition of the
loading dock, Cox did not encounter necessarily an open and obvious condition, and material facts exist as to whether this situation created an unreasonable risk of harm to him.” Cox, 51,587, p. 8, 244 So.3d at 686. The appellate court in Cox, thus, found there were case-specific factual issues precluding summary judgment. The same is true here.
Considering the overall condition of the mechanic‘s pit at the time of the accident, there are case-specific factual issues here precluding summary judgment. The pictures and the deposition testimony that were introduced establish the existence of a three to four foot gap between the front of the RTA bus and the front of the uncovered mechanic‘s pit. Mr. Robichaux, Transdev‘s Bus Management Director, attested that, on the day of the accident, “[garage] bay #18 had no barrier covering the open mechanic‘s pit located beneath the bus.”
The visibility of the partially open, uncovered mechanic‘s pit also is disputed. According to their deposition testimony, both Mr. Lomax and Mr. Spenser denied seeing the mechanic‘s pit when they made their pre-trip inspection. Mr. Lomax acknowledged that he generally was aware of the presence of mechanic‘s pits in the RTA‘s facility. But, in response to the question of whether he knew that there were pits underneath all the garage bays, Mr. Lomax replied: “I didn‘t know it was under all of them but I know they had some under the bus.” Although he had been to the RTA‘s facility to make prior deliveries, Mr. Lomax testified that he had never made a prior delivery to the particular break room where
he was delivering the replacement machine. As noted elsewhere in this opinion, his prior deliveries were to other areas of the RTA‘s facility.
Considering the overall circumstances, we find, as Mr. Lomax contends, that “[i]n light of the proximity of the mechanic‘s pit to the walking area, genuine issues of material fact remain as to whether the gap created an unreasonable risk of harm, where delivery drivers were tasked with
DECREE
For the foregoing reasons, the judgment of the trial court is reversed; and this matter is remanded.
REVERSED AND REMANDED
Notes
- The trial court erred because there are genuine issues of material fact in dispute[,] which preclude the granting of summary judgment in defendants’ favor.
- Defendants were comparatively at fault in the cause of Mr. Lomax‘s accident.
- The trial court erred as a matter of law by granting the motion for summary judgment because it held that appellant met the factors set forth in [La.] C.C. art. 2317.
- Bufkin, supra (observing that summary judgment was proper in defendant‘s favor given a pickup-truck sized dumpster located on a city street was an open and obvious condition);
- Rodriguez v. Dolgencorp, LLC, 14-1725 (La. 11/14/14), 152 So.3d 871 (observing that summary judgment was proper in defendant‘s favor given a shopping cart located in a grocery store parking lot was an open and obvious condition); and
- Allen v. Lockwood, 14-1724 (La. 02/13/15), 156 So.3d 650, 651 (observing that summary judgment was proper in defendant‘s favor given an unpaved, grassy parking area on church‘s grounds was an open and obvious condition).
There are other decisions which suggest that simply because a condition may be open and obvious it does not necessarily result in a consequential finding that the defendant did not create an unreasonable risk of harm. Thus, the Louisiana Supreme Court, while acknowledging the dangerousness of bundled electric cables placed in a pedestrian passageway at the Chalmette Crawfish Festival as well as a pedestrian‘s duty to observe conditions as obvious to a visitor as to a landowner, found that case-specific factual issues precluded summary judgment. See Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 9 (La.2/20/03), 866 So.2d 228, 235.4 See also Warren v. Kenny, 10-1580 (La. App. 4 Cir. 4/27/11) 64 So.3d 841 (in which we reversed the trial court‘s summary judgment dismissing a tenant‘s claims against her landlord whose ladder and railings giving access to laundry equipment were held to be open and obvious; we remanded because of genuine issues of material fact, observing that at trial a “substantial” portion of fault might be attributed to the tenant who chose to use that laundry equipment, knowing it was in a precarious situation, i.e., “an open and obvious danger“).