Lafayette Steel Erector, Inc. d/b/a LSE Crane and Transportation and IC Rigging, LLC v. G. Kendrick, LLC, Low Land Construction Co., Inc., United Bulk Terminals Davant, LLC, Underwriters at Lloyd's London, and Atlantic Specialty Insurance Company ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0892
LAFAYETTE STEEL ERECTOR, INC., d/ b/ a LSE CRANE AND
TRANSPORTATION, AND IC RIGGING, LLC
VERSUS
G. KENDRICK, LLC, LOW LAND CONSTRUCTION CO., INC.,
UNITED BULK TERMINALS DAVANT, LLC, UNDERWRITERS
AT LLOYD' S, LONDON, AND ATLANTIC
SPECIALTY INSURANCE COMPANY
Judgment rendered: AUG 2 9 2023
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. 660341
The Honorable Wilson E. Fields, Judge Presiding
Corey Patrick Parenton Attorneys for Cross- Claimants/ Appellants
Rufus Carrollton Harris, III Low Land Construction Co., Inc.,
Jason R. Kenney and Atlantic Specialty Insurance
James A. Crouch, Jr. Company
Metairie, Louisiana
Jake P. Skaggs Attorneys for Intervenor/Appellant
Timothy Braden Riley Mitsui Sumitomo Insurance Company
Houston, Texas of America
James Michael Dill Attorneys for Plaintiff/Appellant
Michael C. Wynne Lafayette Steel Erector, Inc.,, d/ b/ a
Lafayette, Louisiana LSE Crane and Transportation
Stephen F. Butterfield Attorneys for Defendant/Appellee
Ryan M. Tucker G. Kendrick, LLC
New Orleans, Louisiana
Katherine Lynch Attorneys for Defendant/ Appellee
Ross M. Molina Certain Underwriters at Lloyd' s London
Jill S. Willhoft
Donald G. Cassels, III
New Orleans, Louisiana
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
HOLDRIDGE, J.
Lafayette Steel Erector, Inc., d/ b/ a LSE Crane and Transportation ( LSE), Low
Land Construction Co., Inc., Atlantic Specialty Insurance Company, and Mitsui
Sumitomo Insurance Company of America ( Mitsui) appeal a summary judgment
rendered in favor of G. Kendrick, LLC ( Kendrick) and Certain Underwriters at
Lloyd' s, London ( Underwriters),' dismissing their claims with prejudice. For the
following reasons, we affirm in part and reverse in part the trial court' s grant of
summary judgment.
FACTS AND PROCEDURAL HISTORY
On August 11, 2017, LSE filed a petition for damages against Kendrick, Low
Land, United Bulk Terminals Davant, LLC ( United Bulk), Underwriters, and
Atlantic Specialty Insurance Company.2 In its petition, LSE asserted that in May of
2017, it was subcontracted by Low Land to provide services on a demolition project
at a plant owned by United Bulk in Davant, Louisiana. Kendrick was the general
contractor on the project.' On June 13, 2017, a crane owned by Low Land
hereinafter referred to as the Low Land crane) was being used in the demolition of
a structure when it fell and struck a crane owned by IC Rigging, LLC, and leased to
LSE ( hereinafter referred to as the LSE crane). The Low Land crane was being
operated by Jason Guidry, an employee of Low Land for approximately fifteen
years. The LSE crane was being operated by Jason Robichaux, an employee of LSE.
The cutter on the project was David Hernandez, the owner and operator of LDH
Recycling, LLC ( LDH). The accident caused extensive damage to the LSE crane.
LSE' s original petition apparently improperly named this defendant as " Underwriters at Lloyd' s,
London."
2 We note that the petition also named IC Rigging, LLC as a plaintiff.
3 Kendrick was contracted by United Bulk to remove its Krupp stacker reclaimer at its facility.
Due to its large size, demolishing the reclaimer required the use of two cranes and a cutter to
dismantle portions of the structure. Kendrick did not employ cutters and did not own or operate
any cranes. Therefore, Kendrick subcontracted Low Land to provide cranes and LDH Recycling,
LLC to provide the cutter necessary to complete the demolition project.
3
In its petition for damages, LSE argued that the accident was caused by the
negligence of Kendrick.
On October 2, 2017, Kendrick answered the petition for damages, and
asserted incidental demands, a cross- claim' against Low Land, and a third -party
demands against LDH. Kendrick asserted that it subcontracted with LDH to provide
cutting services in connection with the project. Kendrick asserted that it also
subcontracted with Low Land to furnish a crane and an operator for the project. Low
Land subcontracted with LSE to furnish an additional crane and personnel, including
an operator.
On October 4, 2017, Low Land answered the petition for damages, filed a
cross- claim against Kendrick, and a third party demand against David Burner.' Low
Land argued that Kendrick was negligent in hiring deficient subcontractors and
failing to guarantee that the operation was being performed in a safe and satisfactory
fashion. On November 13, 2017, Mitsui, a subrogated insurance carrier for the crane
leased by LSE, intervened in the suit. Mitsui alleged that it was entitled to damages
against Low Land, Kendrick, and United Bulk? as a result of the accident.
4 In its cross-claim, Kendrick also named as defendants Atlantic Specialty Insurance Company and
Underwriters.
5 In its third -party demand, Kendrick also named Mesa Underwriters Specialty Insurance
Company, Giambelluca Insurance Agency, Inc., and ABC Insurance Company as third -party
defendants.
6 David Burner was an independent contractor hired by Kendrick. David Burner is not a party at
issue on appeal.
7 We note that on November 3, 2017, United Bulk answered the petition for damages filed by LSE
and filed cross-claims against Kendrick, Low Land, LDH, Underwriters, Atlantic Specialty
Insurance Company, and Mesa Underwriters Specialty Insurance Company, and counter -claims
against LSE. On November 16, 2021, United Bulk filed a motion for summary judgment against
Kendrick; the trial court granted the motion and that summary judgment is on appeal with this
Court. See 2022 -CA -0895, Lafayette Steel Erector, Inc. d/ b/ a LSE Crane and Transportation,
and IC Rigging, LLC v. G. Kendrick, LLC, Low Land Construction Co., Inc., United Bulk
Terminals Davant, LLC, Underwriters at Lloyd' s London, and Atlantic Specialty Insurance
Company.
11
After various pleadings' were filed by the parties, Kendrick filed a motion for
summary judgment on October 25, 2021, seeking dismissal of the claims against it.
In its memorandum in support of its motion, Kendrick asserted that as the general
contractor of the demolition project, it had no duty to oversee or assist the
performance of the independent contractor' s work.' Specifically, Kendrick argued
that: ( 1) the crane workers unilaterally planned and carried out their actions without
seeking approval or oversight from Kendrick; ( 2) Kendrick was not a cause -in -fact
of the accident because it had no duty to supervise the crane workers who were
independent contractors; and ( 3) Kendrick was not liable for the acts or omissions
of Low Land, LSE, and LDH, who were all independent contractors. On November
5, 2021,
Underwriters filed a motion adopting Kendrick' s motion for summary
judgment as to claims made by LSE and Low Land.
In support of its motion for summary judgment, Kendrick filed several
exhibits with its memorandum, including the depositions of the crane operators and
the cutter for the demolition project, as well as Kendrick' s safety manager, Jeremy
Bergeron. 10 In his deposition, Jeremy Bergeron explained that his job for the
demolition project consisted of monitoring personnel on the ground and that "[ t]he
8 On December 15, 2017, LSE filed its first supplemental and amending petition for damages,
adding LDH and Mesa Underwriters Specialty Insurance Company as additional defendants. On
February 5, 2020, Low Land filed a motion for summary judgment praying that the trial court
dismiss LSE' s property damage claim against it and require that LSE indemnify Low Land against
other claims. The trial court denied Low Land' s motion for summary judgment. On June 4, 2020,
Underwriters filed a motion for summary judgment against LSE, Kendrick, and United Bulk,
praying that the trial court dismiss all claims filed against it. The trial court signed a judgment on
September 1, 2020, that denied Underwriters' motion for summary judgment. The judgment
further granted a motion for partial summary judgment in favor of Kendrick regarding
Underwriters' duty to defend and provide insurance coverage to Kendrick.
9 We note that the distinction between employee and independent contractor status is a factual
determination to be decided on a case- by-case basis. Tower Credit, Inc. v. Carpenter, 2001-
2875 ( La. 9/ 4/ 02), 825 So. 2d 1125, 1129. The summary judgment evidence shows and it is not
contested that the two crane operators and the cutter were independent contractors. Jason Guidry
was an employee of Low Land, Jason Robichaux was an employee of LSE, and David Hernandez
was an employee of LDH.
to In further support of its motion for summary judgment, on March 8, 2022, Kendrick filed a
motion to supplement the record with the deposition of Steven Robichaux, the crane operation
expert hired by United Bulk and this motion was unopposed.
5
crane operators were to secure the load, lower the load. And the cutters were there
to safely and securely cut the load off of the original machine." Jeremy Bergeron
stated that his job for the demolition project consisted of ensuring that everyone
practiced regulatory safety measures." He further testified that at no time during
the project did he tell either the crane operators or the cutter how to do their job and
they never asked for his input.
Jeremy Bergeron further testified that every morning during the project he
conducted a job safety analysis ( JSA) meeting with the team. Jeremy Bergeron
stated that during the JSA meeting on the morning of June 13, 2017, the team agreed
to proceed with the demolition project the same as the day before since it " was a
success."
However, he stated that he was not included in a separate meeting between
the two crane operators and the cutter on June 13, 2017, wherein they changed the
plan on how to proceed with the demolition project from the previous day. Jeremy
Bergeron stated that if he had been informed of a " change in the plan" he would have
conducted a new JSA meeting.
Kendrick also filed the depositions of the two crane operators, Jason Guidry,
employed by Low Land, Jason Robichaux, employed by LSE, and the cutter, David
Hernandez, owner and operator of LDH. All three men testified that it was only the
two crane operators and the cutter who decided how to cut and rig for the demolition
project.
They all stated that there was an agreement among the three men that they
all had to agree on the course of action, and if one objected, they would work out a
compromise.
The men further stated that at the JSA meeting on the morning of the
accident, the team discussed proceeding the same way with the demolition project
as the day before. Jason Guidry testified that after the first cut was made on June
11
Jeremy Bergeron testified that the regulatory safety measures consisted of ensuring everyone
had on " hard hats, safety shoes, glasses, making sure everything was roped off according to where
the crane workers] were working, [ and] making sure [ no one] entered where [ the crane workers]
were working[.]"
0
13, 2417, the pendant line did not pivot as expected; therefore, the two crane
operators and the cutter had a meeting and discussed a new course of action for the
demolition project.
Low Land filed a memorandum in opposition to Kendrick' s motion for
summary judgment arguing that summary judgment was not appropriate under the
facts of this case because there were genuine issues of material fact as to Kendrick' s
duty for the demolition project and whether its acts or omissions were causes -in -fact
of the damages incurred. Low Land asserted that Kendrick was in charge of the
project, hired on- site supervisors to oversee the crane operations, and had those
employees actively participate in the planning of the crane operations. Specifically,
Low Land argued that Kendrick was liable for failing to supply competent crane
operation planning and oversight, failing to employ competent metal cutters, and
failing to supply a functioning manlift. Low Land argued that Kendrick' s on- site
safety manager for the project, Jeremy Bergeron, had no prior experience with
cranes, had no demolition experience, and had never operated a crane or had prior
training, yet Kendrick put him in a management role for the project.
In support of its position, Low Land filed the deposition of the crane expert,
Steven Robichaux, with its memorandum in opposition to Kendrick' s motion for
summary judgment. Steven Robichaux asserted in his deposition that he was hired
by United Bulk to investigate the companies that were involved in the demolition
project.
Steven Robichaux testified that it was " essential for the team leader [ of the
demolition project] to ...
have experience in crane operations and rigging to oversee
the people that he hired as the crane experts to do their work [ so] that he [ could]
verify that [they were] competent in doing their task." It was his opinion that Jeremy
Bergeron should have been monitoring the job and at the immediate site where the
accident occurred.
LSE also opposed Kendrick' s motion for summary judgment, arguing in its
memorandum that summary judgment was not warranted under the facts of this case
because there were multiple issues of material fact that remained. LSE stated that
these issues included whether Kendrick: ( 1) assumed a duty in connection with the
demolition operation and failed lift; (2) breached its assumed duty or its general duty
of care in connection with the failed lift; (3) maintained operational control over its
subcontractors in connection with the failed lift; and, ( 4) engaged its subcontractors
to perform an inherently dangerous or ultrahazardous activity. LSE argued that these
liability issues were not appropriate for summary judgment consideration. In
support of its position, LSE filed several exhibits, including the report of the crane
expert, Steven Robichaux.
Mitsui opposed Kendrick' s motion for summary judgment, arguing that there
remained genuine issues of material fact as to Kendrick' s breach of duty.
Specifically, Mitsui argued in its memorandum in opposition to Kendrick' s motion
for summary judgment that there remained genuine issues of material fact as to: ( 1)
whether Kendrick owed a duty to LSE and its employees regarding safety at the
worksite; ( 2)
whether Kendrick assumed a duty to LSE and its employees with
respect to safety at the worksite in connection with the failed lift; ( 3) whether
Kendrick maintained operational control in connection with the failed lift; ( 4)
whether the demolition activities, including the failed lift, was a dangerous activity;
and, (
5) whether Kendrick' s acts or omissions caused or contributed to the failed lift.
Kendrick replied to LSE, Low Land, and Mitsui' s opposition memorandums,
asserting that all three parties failed to produce any factual evidence to establish that
they would be able to carry their evidentiary burden at trial. In sum, Kendrick argued
that none of the parties could establish the duty or cause -in -fact elements essential
g
to its negligence claims, thereby failing to establish the existence of a genuine issue
of material fact as mandated by La. C. C.P. art. 966. 12
On March 14, 2022, the trial court held a hearing on Kendrick' s motion for
summary judgment, which was adopted by Underwriters. 13 At the hearing, counsel
for Kendrick, LSE, Low Land, and Mitsui presented arguments as to their clients'
claims. The crux of Kendrick' s argument was that as the general contractor of the
demolition project, it could not be held liable for the tort of its independent
contractors while performing its contractual duties. Kendrick acknowledged that
although there were two exceptions to this general rule, i.e., where the work
was ultra -hazardous; or if the principal reserved the right to supervise or control the
work of the independent contractor, neither exception applied to the facts of this
case.
See Thompson v. Winn-Dixie Montgomery, Inc., 2015- 0477 (La. 10/ 14/ 15),
181 So. 3d 656, 665.
Counsel for Low Land, LSE, and Mitsui counter -argued that there remained
genuine issues of material fact as to Kendrick' s duty and breach thereof. All three
parties generally argued that Kendrick assumed the duty of the overall safety of the
project as the general contractor and Kendrick breached that duty. Specifically, the
parties argued that Kendrick' s on-site safety manager, Jeremy Bergeron, actively
participated in the daily safety meetings and assumed the duty for the overall safety
of the project. The parties further pointed out that Jeremy Bergeron had no previous
12 After an opportunity for adequate discovery, 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).
13 The record reveals that Underwriters filed a motion to adopt Kendrick' s motion for summary
judgment; however, no supporting documents were filed with the motion. Although Underwriters
filed a motion to adopt Kendrick' s motion for summary judgment, this request does not satisfy the
requirements of La. C. C. P. art. 966( A)(4) or (13)( 2). In a summary judgment proceeding, the other
suit record documents must be filed in support of or in opposition to the motion in order to allow
the trial court to make a factual finding. See Point Carr Homeowners Association, 2022- 0530
La. App. 1 Cir. 1/ 10/ 23), 360 So. 3d 901, 911; Horrell v. Alltmont, 2019- 0945 ( La. App. 1 Cir.
7/ 31/ 20), 309 So. 3d 754, 761.
Therefore, the trial court erred in not requiring Underwriters to
attach or provide the necessary documents in order to properly grant its motion for summary
judgment. Id.0
experience using cranes, had no expertise or knowledge to be the lift director for the
job, and he failed to submit a critical lift plan the day of the accident. Therefore, the
parties argued that summary judgment was improper under the facts of this case.
After the hearing concluded, the trial court took the matter under advisement.
On March 16, 2022, the trial court issued its ruling in open court, granting Kendrick
and Underwriters' motions for summary judgment that dismissed all of the claims
asserted against them by LSE, Low Land, Mitsui, and Atlantic Specialty Insurance
Company, with prejudice. On April 14, 2022, the trial court signed a judgment in
14
accordance with its oral ruling. Subsequently, LSE, Low Land, and Mitsui
appealed the trial court' s judgment. 15 In sum, LSE, Low Land, and Mitsui assign as
error on appeal that the trial court erred in granting summary judgment in Kendrick
and Underwriter' s favor because there remain genuine issues of material fact as to
Kendrick' s duty of care to its subcontractors and whether the breach of that duty was
a cause in fact of the accident.
Appellate courts review the granting of a summary judgment de novo using
the same criteria governing the trial court' s consideration of whether summary
judgment is appropriate, i.e., whether there is any genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law. See La. C. C. P. art.
966( A)(3); Turner v. Rabalais, 2017- 0741 ( La. App. 1 Cir. 12/ 21/ 17), 240 So. 3d
251, 255, writ denied, 2018- 0123 ( La. 3/ 9/ 18), 237 So. 3d 1193.
The trial court adopted Kendrick' s memorandum in support of its motion for summary judgment
as its reasons for judgment.
is This Court granted Kendrick' s motion to consolidate this appeal with the appeal filed under our
Docket Number 2022 CA 0895, Lafayette Steel Erector, Inc. d/ b/ a LSE Crane and
Transportation, and IC Rigging, LLC v. G. Kendrick, LLC, Low Land Construction Co.,
Inc., United Buck Terminals Davant, LLC, Underwriters at Lloyd' s London, and Atlantic
Specialty Insurance Company for oral argument and submission.
10
The summary judgment procedure is expressly favored in the law and is
designed to secure the just, speedy, and inexpensive determination of non-domestic
civil actions. 16 See La. C. C. P. art. 966( A)( 2). The purpose of a motion
for summary judgment is to pierce the pleadings and to assess the proof in order to
see whether there is a genuine need for trial. Hines v. Garrett, 2004- 0806 ( La.
6/ 25/ 04), 876 So. 2d 764, 769 ( per curiam). After an opportunity for adequate
discovery, 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). The
only documents that may be filed in support of or in opposition to the motion are
pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified
medical records, written stipulations, and admissions. La. C. C. P. art. 966( A)(4).
4n a motion for summary judgment, the burden of proof is on the mover. 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 on the motion does not require
that all essential elements of the adverse party' s claim, action, or defense be negated.
Instead, after meeting its initial burden of showing that there are no genuine issues
of material fact, the mover may 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. See La. C. C. P. art. 966( D)( 1); Lucas v. Maison
Insurance Co., 2021- 1401 ( La. App. 1 Cir. 12/ 22/ 22), 358 So. 3d 76, 84.
Thereafter, summary judgment shall be granted unless the adverse party can
produce factual evidence sufficient to establish the existence of a genuine issue of
material factor that the mover is not entitled to judgment as a matter of law. See La.
C. C. P. art. 966( D)( 1).
16 The motion for summary judgment at issue on this appeal was filed and decided under La. C. C. P.
art. 966 prior to its amendment by 2023 La. Acts No. 317, § 1, and 2023 La. Acts No. 368, § 1,
which became effective on August 1, 2023.
11
The court may consider only those documents filed in support of or in
opposition to the motion for summary judgment and shall consider any documents
filed but to which no objection is made. Any objection to a document shall be raised
in a timely filed opposition or reply memorandum. The court shall consider all
objections prior to rendering judgment. The court shall specifically state on the
record or in writing which documents, if any, it held to be inadmissible or declined
to consider. See La. C. C. P. art. 966( D)(2).
In ruling on a motion for summary judgment, the court' s role is not to evaluate
the weight of the evidence or to make a credibility determination, but instead to
determine whether there is a genuine issue of material fact. Collins v. Franciscan
Missionaries of Our Lady Health System, Inc., 2019- 0577 ( La. App. 1 Cir.
2/ 21/ 20), 298 So. 3d 191, 194, writ denied, 2020- 00480 ( La. 6/ 22/ 20), 297 So. 3d
773. A genuine issue is one as to which reasonable persons could disagree; if
reasonable persons could reach one
only conclusion, summary judgment is
appropriate. Id. at 194- 95. 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. Id. at 195.
Summary judgment is seldom appropriate for determinations based on the
subjective facts of intent, motive, malice, good faith, or knowledge. See Jones v.
Estate of Santiago, 2003- 1424 ( La. 4/ 14/ 04), 870 So.2d 1002, 1006. These
subjective facts call for credibility evaluations and the of
weighing
testimony. Berthelot v. Indovina, 2021- 1546 ( La. App. 1 Cir. 6/ 3/ 22), 343 So. 3d
209, 215. A trial court cannot make decisions
credibility on a motion
for summary judgment. Monterrey Center, LLC v. Education Partners,
Inc., 2008- 0734 ( La. App. I Cir. 12/ 23/ 08), 5 So. 3d 225, 232.
Furthermore, the
circumstantial evidence usually necessary for proof of motive or intent requires the
trier -of f-act to choose from competing inferences, a task not appropriate for
12
a summary judgment ruling. Irving v. Katie Santo, Inc., 2018- 1619 ( La. App. 1
Cir. 6/ 13/ 19), 2019 WL 2609035 at * 5 ( unpublished); Louisiana AG Credit, PCA
v. Livestock Producers, Inc., 42, 072 ( La. App. 2 Cir. 4/ 4/ 07), 954 So. 2d 883,
891, writ denied, 2007- 1146 ( La. 9/ 14/ 07), 963 So. 2d 1001.
APPLICABLE LAW
LSE, Low Land, and Mitsui assert claims of negligence against Kendrick.
Louisiana courts have adopted a duty -risk analysis in determining whether liability
for negligence exists under the facts of a particular case. Van Cleave v. Temple,
2018- 1353 ( La. App. 1 Cir. 5/ 31/ 19), 278 So. 3d 1005, 1011. For liability to attach
under a duty -risk analysis, a plaintiff must prove five separate elements: ( 1) the
defendant had a duty to conform his conduct to a specific standard of care ( or the
defendant owed a duty of care to the plaintiff) (the duty element); ( 2) the defendant
failed to conform his conduct to the appropriate standard ( or breached the requisite
duty) ( the breach element); ( 3) the defendant' s substandard conduct was a cause -in -
fact of the harm or the plaintiff' s injuries (the cause -in -fact element); ( 4) the risk of
harm was within the scope of protection afforded by the duty breached (the scope of
the duty, scope of protection or legal cause element); and ( 5) actual damages
damages element). See Landers v. USIC Locating Servs., Inc., 2020- 0890 ( La.
App. 1 Cir. 4/ 26/ 21), 324 So. 3d 1070, 1073- 74. A negative answer to any of the
inquiries of the duty -risk analysis results in a determination of no liability. Id.DISCUSSION
Expert Steven Robichaux
Low Land, LSE, and Mitsui' s arguments on appeal rely in part on the
deposition and report of United Bulk' s crane expert, Steven Robichaux, in opposing
Kendrick' s motion for summary judgment. Steven Robichaux interviewed many of
the team members for the demolition project and provided a report to United Bulk
that determined " root cause findings" for the accident. The report identified several
13
duties that Jeremy Bergeron, Kendrick' s safety manager, failed to perform and also
identified regulations that Kendrick allegedly failed to comply with. Specifically,
Steven Robichaux' s report stated that Jeremy Bergeron " was not qualified to
perform his duties as the supervisor and safety person for [the demolition project.]"
Steven Robichaux opined that it was essential for Jeremy Bergeron to have
experience in crane operations and rigging to oversee the people that Kendrick hired
as the crane experts to do their work properly so that he could verify that they were
competent in doing their task. Low Land, LSE, and Mitsui rely on Steven
Robichaux' s expert report and testimony to argue that Kendrick assumed the duty
of overseeing the overall safety at the jobsite for the demolition project since it hired
Jeremy Bergeron as the safety manager. The appellants argue that because Jeremy
Bergeron did not have any experience in crane operations and had never operated a
crane before, he was not an effective team leader to perforin an adequate safety
assessment.
The appellants further argue that because of Jeremy Bergeron' s lack of
crane operation experience, Kendrick breached its duty of care by failing to provide
a competent safety manager.
Under the issues presented in this case, the determination of Kendrick' s duty
is a legal conclusion. Duty is a question of law.
The inquiry is whether a plaintiff
has any law— statutory, jurisprudential, or arising from general principles of fault—
to support his or her claim. Talbert v. Restoration Hardware, Inc., 2017- 0986
La. App. 1 Cir. 5/ 31/ 18), 251 So. 3d 532, 536, writ denied, 2018- 1102 ( La.
10/ 15/ 18), 253 So. 3d 1304.
An expert cannot make legal conclusions reserved for
the court,
credit or discredit witness testimony, or otherwise make factual
determinations reserved for the trier of fact. Riha v. Offshore Serv. Vessels, LLC,
547 F. Supp.3d 550, 555 ( E.D. La. 2021). When an expert opinion constitutes the
actual legal conclusion, it goes beyond what is helpful to the jury and
is not admissible. Islam v. Walmart, Inc.,
21- 629 ( La. App. 5 Cir. 6/ 8/ 22), 343
14
So. 3d 883, 890, writ denied, 2022- 01053 ( La. 10/ 12/ 22), 348 So. 3d 70; see also
Burk v. Illinois Central Gulf Railroad Co., 529 So.2d 515, 520 ( La. App. 1 Cir.
1988), writ denied, 532 So.2d 179 ( La. 1988). This Court finds that Steven
Robichaux' s report and deposition allocated liability among the team members and
attempted to determine the legal issue of "duty." Duty is a legal issue and it is not
the alleged safety expert' s role to determine a party' s duty or the liability of each
party. Although Steven Robichaux' s report and deposition were considered by the
trial court, the legal issue of "duty" in this case is reserved for the court. Thus, on
our review, we will consider Steven Robichaux' s report to the extent that it aids our
determination of the legal issue of duty. See La. C.E. art. 704. 17
Negligence Claims against Kendrick
In this case, Kendrick as the mover on the motion for summary judgment,
bears the initial burden of establishing that there are no genuine issue of material
fact and that the mover is entitled to judgment as a matter of law. See La. C. C. P.
art. 966( D)( 1). We must determine whether Kendrick met its burden on the motion
for summary judgment and whether LSE, Low Land, and Mitsui have shown that
there are issues of material fact that preclude the granting of the motion for summary
judgment. Kendrick asserts that LSE, Low Land, and Mitsui are unable to establish
either the duty or the cause -in -fact element of their negligence claim against
Kendrick.
Specifically, Kendrick argues that any negligence claim against it must
be dismissed because it was neither the cause -in -fact of the accident nor did it have
a duty to prevent or supervise the crane workers, who were independent contractors,
from taking the actions that caused the accident.
17 Louisiana Code of Evidence article 704 provides: "[ t] estimony in the form of an opinion or
inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue
to be decided by the trier of fact."
15
The threshold issue in any negligence action is whether the defendant owed
the plaintiff a duty. Posecai v. Wal-Mart Stores, Inc., 99- 1222 ( La. 11/ 30/ 99), 752
So. 2d 762, 766. A duty is an obligation, to which the law will give recognition and
effect, to conform to a particular standard of conduct toward another. Morris v.
Orleans Parish School Bd., 553 So. 2d 427, 429 ( La. 1989). Whether a duty is
owed presents a question of law. Posecai, 752 So. 2d at 766. The inquiry is whether
the plaintiff has any law (statutory, jurisprudential, or arising from general principles
of fault) to support the claim that the defendant owed him a duty. Faucheaux v.
Terrebonne Consol. Government, 615 So.2d 289, 292 ( La. 1993). Duty presents
a legal question subject to de novo review on appeal. Malta v. Herbert S. Hiller
Corp., 2021- 00209 ( La. 10/ 10/ 21), 333 So. 3d 384, 395, reh' g denied, 2021- 00209
La. 1/ 28/ 22), 347 So. 3d 883.
Kendrick argues that as the general contractor of the demolition project, it had
no duty to ensure that the crane workers, who were independent contractors,
performed their work in a competent manner. No argument was presented by any
of the parties that the independent contractors were not competent or qualified to
perform the work for the demolition project. In support of its position, Kendrick
cites the Louisiana Supreme Court case, Thompson v. Winn- Dixie Montgomery,
Inc., 2015- 0477 ( La. 10/ 14/ 15),
181 So.3d 656, 665, which held that " generally, a
principal is not liable for the offenses committed by an independent contractor while
performing its contractual duties."
Generally, liability for the negligent and tortious acts of another does not flow
simply because of a principal -agent or principal -mandatary relationship. Rowell v.
Carter Mobile Homes, Inc., 500 So. 2d 748, 751 ( La. 1987); Pontchartrain
Natural Gas System v. Texas Brine Co., LLC, 2018- 1249 ( La. I Cir.
App.
12/ 3 0/ 20),
317 So.3 d 715, 751, writs denied, 2021- 003 82, 2021- 003 86 ( La. 6/ 8/ 21),
317 So. 3d 323. Only when the the
relationship of parties includes
16
the principal' s right to control physical details of the actor as to the manner of
his performance, which is characteristic of the relation of master and servant, does
the person in whose service the act is done become subject to liability for the
physical tortious conduct of the actor. Rowell, 500 So. 2d at 751. The same basic
rule applies to independent contractors generally; a principal is not liable for the
offenses committed by an independent contractor while performing its contractual
duties. Thompson, 181 So. 3d at 665. However, there are two exceptions to
the general rule of non -liability: ( 1) where the work performed by the contractor is
ultrahazardous; or ( 2) if the principal reserves the right to supervise or control the
work of the independent contractor. Id.Whether an activity qualifies as ultrahazardous in Louisiana is a question of
law. Pontchartrain, 317 So.3d at 751. Three factors have evolved in order to
determine whether an activity is ultrahazardous: ( 1) the activity must relate to land
or some other immovable; ( 2) the activity itself must cause the injury, and the
defendant must be engaged directly in the injury -producing activity; and ( 3) the
activity must not require substandard conduct to cause injury. Id. at 752. An activity
is ultrahazardous if all three factors are present. See Sandbom v. BASF
Wyandotte, Corp., 95- 0335 ( La. App. 1 Cir. 4/ 30/ 96), 674 So. 2d 349, 354. As to
the first factor, that the activity must relate to land or some other immovable, the
record reveals that the crane workers' demolition project did not relate to land or any
other immovable. Also, as to the third factor, the activity in question would require
substandard conduct to cause injury. Therefore, we find that the activity in question
was not ultrahazardous.
The second exception for a general contractor' s non -liability for an
independent contractor is when the principal reserves the right to supervise or
control the work of the independent contractor. Triplette v. Exxon Corp., 554
So. 2d 1361, 1363 ( La. App. 1 Cir. 1989). It is not the supervision and control that
17
is actually exercised that is significant, but it is the right to exercise it that is of
primary concern in determining whether a principal may be held liable for the torts
of an independent contractor. Id.In this case, the evidence presented establishes that Kendrick did not exercise
any control as to how the crane workers performed their respective jobs. The
testimonies of the two crane operators and cutter, who were not employees of
Kendrick, reveal that the crane workers solely determined how to cut and rig for the
demolition project and that they did not need or want any directives from Kendrick.
Specifically, on the day of the accident, the record establishes that the two crane
operators and cutter unilaterally decided to change the plan on how to proceed with
the demolition project, without Kendrick' s knowledge, thereby causing the accident.
The fact that Kendrick' s safety manager, Jeremy Bergeron, inspected the job site for
safety measures, such as roping off the job site and making sure safety hats, shoes,
and glasses were worn does not constitute the exercise of operational control. See
Triplette, 554 So. 2d at 1363.
Louisiana jurisprudence makes it clear that neither exception to
the general rule of non -liability for an independent contractor applies to the facts of
this case.
The evidence submitted in support of Kendrick' s motion for summary
judgment establishes that the demolition project was not ultrahazardous and that
Kendrick did not exercise any type of control over the independent contractors, Low
Land, LSE, or LDH. Thus, Kendrick, the general contractor for the demolition
project, cannot be held liable for the alleged acts or omissions of the independent
contractors, LSE, Low Land, and LDH, and their employees, Jason Guidry, Jason
Robichaux, and David Hernandez.
Kendrick' s summary judgment evidence establishes that Kendrick had no
special duty to ensure that the crane workers, who were all employees of independent
contractors, performed the work in a competent manner, or to assist with, or oversee,
18
the performance of that work. l s The testimonies of the crane operators and the cutter
reveal that the three men formulated their own lift plan on the date of the accident,
without any input, assistance, or supervision from Kendrick' s safety manager,
Jeremy Bergeron. In fact, there was a JSA meeting that morning, attended by Jeremy
Bergeron, Jason Guidry, Jason Robichaux, and David Hernandez, wherein it was
discussed to proceed with the demolition project in the same manner as the day
before. However, this plan was not fulfilled by the employees of LSE, Low Land,
and LDH, without any input or discussion from Jeremy Bergeron. The crane
workers' failure to inform Jeremy Bergeron of the change in plans highlights the
undisputed fact that Jeremy Bergeron was not given any opportunity to address any
safety concerns or that the crane workers would have followed any instructions if
they were given. Thus, we find that Kendrick did not owe any duty to LSE, Low
Land, and Mitsui. 19 Accordingly, on our de novo review, we find the trial court did
not err in granting summary judgment in favor of Kendrick and dismissing the
claims of LSE, Low Land, and Mitsui with prejudice.
CONCLUSION
For the foregoing reasons, we affirm the portion of the April 14, 2022
judgment that granted Kendrick' s motion for summary judgment and dismissed with
prejudice the claims asserted by Lafayette Steel Erector, Inc., d/ b/ a LSE Crane and
Transportation, Low Land Construction Co., Inc., Atlantic Specialty Insurance
18 Mitsui and LSE argue that the United Bulk -Kendrick Master Service Agreement, Sections 2. 0
and 3. 0 obligated Kendrick to " maintain complete control, direction, and responsibility over its
own employees and subcontractors and over the work, [
demolition of the Krupp reclaimer],
including the work of its contractors and subcontractors." According to Mitsui, Kendrick' s
contractual duty to United Bulk shows that Kendrick owed a similar " general duty of care" to
Mitsui.
We note that Kendrick may have owed a general contractual duty to United Bulk to
maintain control of the subcontractors and of the work performed; however, there is no evidence
introduced by Mitsui or LSE that this duty was breached. Furthermore, Mitsui and LSE are not
parties to the Master Service Agreement.
19 Kendrick' s summary judgment evidence establishes that as the general contractor, it did not
assume the duty of the overall safety of the project as to the independent contractors. Therefore,
we pretermit any further discussion on the assumption of duty.
7
Company, and Mitsui Sumitomo Insurance Company of America. We reverse in
part the portion of the judgment that granted summary judgment in favor of
Underwriters at Lloyd' s of London due to the fact that it failed to attach any
documents in support of its motion for summary judgment.20 All costs of this appeal
are assessed to Lafayette Steel Erector, Inc., d/ b/ a LSE Crane and Transportation,
Low Land Construction Co.,
Inc. and Atlantic Specialty Insurance Company, and
Mitsui Sumitomo Insurance Company of America.
AFFIRMED IN PART; REVERSED IN PART.
20 Since Underwriters' insured is being dismissed from this lawsuit, it would be appropriate for the
parties to enter into a joint judgment also dismissing Underwriters without the need for a new
motion for summary judgment.
NO]