Opinion
Case No. 2:18-cv-02701-JPM-cgc
2020-02-21
David SHEFFIELD, Plaintiff, v. INTERNATIONAL PAPER CO., Defendant.
Alison Leigh Baimbridge, Joseph McGowin, Arnold & Itkin LLP, Houston, TX, William B. Ryan, Drew Davis, Donati Law Firm, LLP, Memphis, TN, for Plaintiff. Andre B. Mathis, Gadson William Perry, Butler Snow LLP, Memphis, TN, for Defendant.
Alison Leigh Baimbridge, Joseph McGowin, Arnold & Itkin LLP, Houston, TX, William B. Ryan, Drew Davis, Donati Law Firm, LLP, Memphis, TN, for Plaintiff.
Andre B. Mathis, Gadson William Perry, Butler Snow LLP, Memphis, TN, for Defendant.
ORDER DENYING DEFENDANT INTERNATIONAL PAPER CO.'S MOTION FOR SUMMARY JUDGMENT
JON P. McCALLA, UNITED STATES DISTRICT COURT JUDGE
Before the Court is Defendant International Paper Co.'s December 11, 2019 Motion for Summary Judgment. (ECF No. 41.) Defendant moves the Court pursuant to Federal Rule of Civil Procedure 56 to grant judgment in its favor, asserting that Plaintiff has failed to create a genuine dispute of material fact as to International Paper Co.'s liability in this case. (Id. ) Defendant asserts two arguments in its Motion: (1) that International Paper Co. is immune from Plaintiff's tort suit pursuant to the Louisiana Workers' Compensation Act ("LWCA"), La. Rev. Stat. Ann. §§ 23:1020 –141; and (2) that Defendant did not owe Sheffield a duty because he was aware of the open and obvious hazard that caused his fall, namely the damaged curb at International Paper Co.'s Mansfield Mill. (Id. at PageID 258.)
Plaintiff filed his Response to the Motion for Summary Judgment on January 8, 2020. (ECF No. 46.) Plaintiff asserts that Defendant is not his statutory employer for purposes of the LWCA, thereby preventing Defendant from qualifying for the LWCA's provisions granting immunity from tort suit to statutory employers. (Id. at PageID 634–35.) Additionally, Plaintiff asserts that whether the danger created by the broken curb was open and obvious is a question of fact that should be resolved by a jury. (Id. )
Defendant filed a Reply brief on January 22, 2020. (ECF No. 49.) Defendant rebuts these arguments by asserting that Defendant qualifies as a statutory employer for purposes of the LWCA, and that Plaintiff cannot make out a claim for negligence under Louisiana law. (Id. )
For the reasons set forth below, the Motion is DENIED .
I. BACKGROUND
This negligence action arises out of injuries sustained by Plaintiff David Sheffield as a result of a fall that occurred on or about June 4, 2018. (Complaint, ECF No. 1 ¶ 6.) Sheffield alleges he was making a delivery to International Paper Co.'s mill located in Mansfield, Desoto Parish, Louisiana (the "Mansfield Mill"). (Id. ) Plaintiff alleges that while he was unloading his shipment from his truck, he stepped on a "broken, damaged and unstable" curb which caused him to fall and strike his head, neck, and back on the concrete. (Id. ) Plaintiff asserts claims for negligence and premises liability against International Paper Co. (Id. ¶¶ 7–13.)
At the time of the alleged incident, Plaintiff was a long-haul driver for JRM Logging. (Sheffield Statement of Facts ("Sheffield SOF"), ECF No. 47 at PageID 744.) International Paper Co. entered into a contractual agreement with Red River Nacogdoches TRS LP ("Red River") on May 16, 2018. (Id. at PageID 743.) The agreement was in effect on June 4, 2018, the alleged date of the accident. (Id. at PageID 743.) The terms of the agreement require Red River to provide International Paper Co. with "Pulpwood ... and biomass from [certain] timberlands ... to service for a period of years paper mills located at [various] locations." (Id. at PageID 743; International Paper Co. Statement of Facts ("IP SOF"), ECF No. 44 at PageID 275; ECF No. 44-1.) The contract lists International Paper Co.'s Mansfield Mill as a delivery location. (Sheffield SOF, ECF No. 47 at PageID 743; IP SOF, ECF No. 44 at PageID 3.) Red River subcontracted with JRM Logging, entering into a "Master Wood Service Agreement" on November 17, 2017. (Sheffield SOF, ECF No. 47 at PageID 744; IP SOF, ECF No. 44 at PageID 744.) The Master Wood Service Agreement requires JRM Logging to cut down and remove timber located on Red River properties and transport the cut timber to its destination. (ECF No. 44-2 at PageID 436–37.) The contract between Red River and JRM Logging specifies that JRM Logging is to provide "Pine Pulpwood" to the "IP-MANSFIELD/BAYOU PIERRE WY" delivery location. (Id. at PageID 454.) Sheffield's June 4, 2018 delivery to the Mansfield Mill and his subsequent deliveries to the Mill in the days following his fall were made pursuant to this subcontract. (See Sheffield SOF, ECF No. 44-4 at PageID 504).
Plaintiff filed the instant action on October 11, 2018. (ECF No. 1.) Defendant filed its Answer on November 2, 2018. (ECF No. 9.) On November 6, 2018, the Court issued an Order to Show Cause as to why the case should not be transferred to the Western District of Louisiana. (ECF No. 12.) The Parties filed a Joint Response to Order to Show Cause Why This Matter Should Not be Transferred to the Western District of Louisiana on November 20, 2018. (ECF No. 13.) At the Scheduling Conference held on December 3, 2018, the Court discussed the issue of whether Louisiana workers compensation law precludes Plaintiff's negligence and premises liability claims. (ECF No. 19 at PageID 75.)
II. LEGAL STANDARD
A party is entitled to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is ‘material’ for purposes of summary judgment if proof of that fact would establish or refute an essential element of the cause of action or defense." Bruederle v. Louisville Metro Gov't, 687 F.3d 771, 776 (6th Cir. 2012).
"In considering a motion for summary judgment, [the] court construes all reasonable inferences in favor of the nonmoving party." Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). "The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact." Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). "Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact." Mosholder, 679 F.3d at 448–49 ; see also Fed. R. Civ. P. 56(e) ; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. "When the non-moving party fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof, the moving parties are entitled to judgment as a matter of law and summary judgment is proper." Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en banc)) (internal quotation marks omitted); see also Kalich v. AT & T Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012).
In order to "show that a fact is, or is not, genuinely disputed," both parties must do so by "citing to particular parts of materials in the record," "showing that the materials cited do not establish the absence or presence of a genuine dispute," or showing "that an adverse party cannot produce admissible evidence to support the fact." Bruederle, 687 F.3d at 776 (alterations in original) (quoting Fed. R. Civ. P. 56(c)(1) ); see also Mosholder, 679 F.3d at 448 ("To support its motion, the moving party may show ‘that there is an absence of evidence to support the nonmoving party's case.’ " (quoting Celotex, 477 U.S. at 325, 106 S.Ct. 2548 )). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]" Martinez, 703 F.3d at 914 (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). "[T]he district court has no ‘duty to search the entire record to establish that it is bereft of a genuine issue of material fact.’ " Pharos Capital Partners, L.P. v. Deloitte & Touche, 535 F. App'x 522, 523 (6th Cir. 2013) (per curiam) (quoting Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008), abrogation recognized by Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015) ).
The decisive "question is whether ‘the evidence presents a sufficient disagreement to require submission to a [fact finder] or whether it is so one-sided that one party must prevail as a matter of law.’ " Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015) (quoting Liberty Lobby, 477 U.S. at 251–52, 106 S.Ct. 2505 ). Summary judgment " ‘shall be entered’ against the nonmoving party unless affidavits or other evidence ‘set forth specific facts showing that there is a genuine issue for trial.’ " Rachells v. Cingular Wireless Employee Services, LLC, No. 1:08 CV 02815, 2012 WL 3648835, at *2 (N.D. Ohio Aug. 23, 2012) (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ). "[A] mere ‘scintilla’ of evidence in support of the non-moving party's position is insufficient to defeat summary judgment; rather, the non-moving party must present evidence upon which a reasonable jury could find in her favor." Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (quoting Liberty Lobby, 477 U.S. at 251, 106 S.Ct. 2505 ). "[I]n order to withstand a motion for summary judgment, the party opposing the motion must present ‘affirmative evidence’ to support his/her position." Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir. 1992) (citing Liberty Lobby, 477 U.S. at 247–254, 106 S.Ct. 2505 ; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) ). "[C]onclusory assertions, unsupported by specific facts made in affidavits opposing a motion for summary judgment, are not sufficient to defeat a motion for summary judgment." Rachells, 2012 WL 3648835, at *2 (quoting Thomas v. Christ Hosp. and Med. Ctr., 328 F.3d 890, 894 (7th Cir. 2003) ). Statements contained in an affidavit that are "nothing more than rumors, conclusory allegations and subjective beliefs" are insufficient. See Mitchell, 964 F.2d at 584–85.
III. POSITIONS OF THE PARTIES
Defendant makes two arguments in support of its Motion for Summary Judgment. First, Defendant argues that the LWCA is the exclusive remedy for Sheffield's alleged injuries, thereby barring his negligence and premises liability claims. (ECF No. 43 at PageID 261.) International Paper Co. asserts that it qualifies as Plaintiff's "statutory employer" under the LWCA, making it "immune to Plaintiff's claims." (Id. at PageID 265, 267–68.) International Paper Co. contends that because the injury occurred during a pulpwood delivery made to International Paper's Mansfield Mill, and because the delivery of pulpwood is an "integral part of or [was] essential to the ability of [International Paper Co.] to generate [International Paper Co.'s] goods, products, or services," International Paper Co. is Sheffield's statutory employer. (Id. at PageID 269 (quoting Lopez v. U.S. Sprint Comm'ns Co., 2007-0052 (La. App. 4 Cir. 12/5/07), 973 So. 2d 819, 826 ).) Additionally, International Paper Co. asserts that the LWCA's "two-contract theory" allows International Paper Co. to qualify as Sheffield's statutory employer. (Id. at PageID 269–70.)
Second, Defendant International Paper Co. argues that Louisiana law forecloses Plaintiff's argument that International Paper Co. is responsible for Plaintiff's injuries. (Id. at PageID 270–73.) Specifically, Defendant asserts that because the damaged curb at the Mansfield Mill was an "open and obvious" hazard, International Paper Co. owed no duty to Plaintiff to prevent his fall, nor did it breach any duty owed to Plaintiff. (Id. )
Plaintiff argues that International Paper Co. is not Sheffield's statutory employer because International Paper Co. incorrectly states the two-contract theory embraced by the LWCA. (ECF No. 566 at PageID 634–45.) As to Defendant's argument that it owed him no duty, Plaintiff contends that whether the broken curb was an "open and obvious" hazard is a question of fact rather than a question of law and is more appropriately resolved by a jury. (Id. at PageID 634–35.) Plaintiff also asserts that it has created a genuine dispute of material fact to preclude summary judgment in International Paper Co.'s favor. (Id. at PageID 634–35.)
Defendant's Reply brief elaborates on its arguments. (See ECF No. 49.) Defendant rebuts Plaintiff's argument that International Paper Co. is not his statutory employer by pointing to a line of cases extending the definition of statutory employer to entities similarly situated to International Paper Co. (Id. at PageID 752–54.) Additionally, Defendant argues that the question of whether a hazard is "open and obvious" is a question of law and may appropriately be resolved on summary judgment. (Id. at PageID 755–56.)
IV. ANALYSIS
A. International Paper Co. is not a statutory employer under the LWCA.
The Court applies Louisiana law in this case. "It is well-settled that federal courts sitting in diversity must apply the choice-of-law rules of the forum state." Cole v. Mileti, 133 F.3d 433, 437 (6th Cir. 1998). Under Tennessee choice-of-law rules, the doctrine of lex loci delicti operates and "applies the substantive law of the state where the injury occurred." United Techs. Corp. v. Sixty-One Indus. Park, Ltd., No. 05-2224MA/AN, 2005 WL 3591636, at *1 (W.D. Tenn. Dec. 29, 2005) (citing Hataway v. McKinley, 830 S.W.2d 53, 55 (Tenn. 1992) ). The accident in the instant case occurred in Louisiana. The Court must therefore apply Louisiana tort and workers compensation law.
"Under the [LWCA], an employer is liable for compensation benefits to an employee who is injured as a result of an accident arising out of and in the course of employment." Mitchell v. S. Scrap Recycling, LLC, 2011-2201 (La. App. 1 Cir. 6/8/12), 93 So. 3d 754, 757 ; see also La. Stat. Ann. § 23:1031. The LWCA generally provides the "exclusive remedy against the employer for such injury." Id. The LWCA covers both "direct employer/employee relationship[s]" and "statutory employer/employee relationship[s]." Id. Although the LWCA obligates direct and statutory employers to pay workers compensation benefits to employees injured in the course of their employment, it also provides a "concomitant right to tort immunity." Id. at 759.
Section 1061(A) of the LWCA governs statutory employer immunity. See King v. Debusk Servs. Group, LLC, 2017-1577 (La. App. 1 Cir. 9/4/19), 2019 WL 4201475, at *3. It provides:
[W]hen any ‘principal’ as defined in [Section 1032(A)(2) ], undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the ‘contractor’, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy provisions of [Section 1032 of the LWCA].
A "principal" is "any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof." La. Stat. Ann. § 23:1032(A)(2).
La. Stat. Ann. § 23:1061(A). In other words, a "statutory employer" is immune from suit outside of the remedies provided by the LWCA. Mitchell, 93 So. 3d at 757.
Under § 1061(A)(2), "A statutory relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee's immediate supervisor." The LWCA provides two ways in which an employer may qualify as a statutory employer. See Allen v. State ex rel. Ernest N. Morial-New Orleans Exh. Hall Auth., 02-1072 (La. 4/9/03), 842 So. 2d 373, 378 ; see also La. Stat. Ann. § 23:1061(A)(1)–(2). The first basis is referred to as the "two contract theory." See Thomas v. State, Dep't of Transp. & Dev., 27,203 (La. App. 2 Cir. 10/12/95), 662 So. 2d 788, 792. A principal is a statutory employer under the two-contract theory when: (1) "the principal enters into a contract with a third party"; (2) "pursuant to that contract, work must be performed"; and (3) "in order for the principal to fulfill its contractual obligations to perform the work, the principal enters into a subcontract for all or part of the work to be performed." King, 2019 WL 4201475, at *3 ; see also La. Stat. Ann. § 23:1061(A)(2).
A principal may also be a statutory employer when: "(1) a principal undertakes work that is part of his trade, business, or occupation by means of a written contract with a contractor that is the employee's immediate or statutory employer ; and (2) the contract between the principal and contractor recognizes the principal as a statutory employer. " King, 2019 WL 4201475, at *3 (emphasis in original); see also La. Stat. Ann. § 23:1061(A)(1), (3) ; Allen, 842 So. 2d at 378 (referring to this defense as the "trade, business, or occupation" defense). This defense derives partly from § 1061(A)(3), which provides:
Except in those instances covered by Paragraph (2) of this Subsection [the two-contract theory], a statutory employer relationship shall not exist between the principal and the contractor's employees , whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee's immediate employer or his statutory employer, which recognizes the principal as a statutory employer.
La. Stat. Ann. § 1061(A)(3) (emphasis added). The employer bears the burden of proving its statutory-employer status and its entitlement to the LWCA's grant of tort immunity. Mitchell, 93 So. 3d at 758.
First, Defendant International Paper Co. does not qualify as a statutory employer under the two-contract theory. The principal, in this case International Paper Co., did not enter into a contract with a third-party to perform work pursuant to that contract. See Allen, 842 So. 2d at 379. Red River, rather than International Paper Co., would be Sheffield's statutory employer under the two-contract theory. Red River is the principal "in the middle of two contracts," specifically its contract to supply pine pulpwood to International Paper Co. and its contract with JRM Logging, Plaintiff's direct employer. King, 2019 WL 4201475, at *6. The structure of the contractual agreements in this case, therefore, forecloses Defendant's argument that it qualifies as Sheffield's statutory employer under the two-contract theory.
Defendant International Paper Co. also does not qualify as Sheffield's statutory employer under § 1061(A)(1) and (3)'s "trade, business, or occupation" defense. The language of the statute makes clear that, "[e]xcept in those situations covered by Paragraph (2)" of § 1061(A), that is, except in two-contract situations, "a statutory employer relationship shall not exist between the principal and the contractor's employees ... unless there is a written contract between the principal and a contractor which is the employee's immediate employer or his statutory employer, which recognizes the principal as the statutory employer. " La. Stat. Ann. § 1061(A)(3) (emphasis added). The Louisiana First Circuit Court of Appeals recently restated the requirements of this defense. King, 2019 WL 4201475, at *3. In addition to proving that the principal and the employee's direct or statutory employer entered into a contract for the performance of work that is "part of [the principal's] trade, business, or occupation," the party asserting immunity from suit under the LWCA must also demonstrate that "the contract between the principal and the contractor recognizes the principal as a statutory employer. " Id. (emphasis in original).
Although courts do not generally take a rigid approach as to what types of contractual provisions demonstrate a recognition of the principal's statutory employer status, see Johnson v. Motiva Enterprises LLC, 13-305 (La. App. 5 Cir. 10/30/13), 128 So. 3d 483, 490, the contract between Red River and International Paper Co. makes no mention of International Paper Co.'s status as a statutory employer. (See ECF No. 44-1.) Although the inclusion of the "Independent Contractor Status" provision in the Agreement between International Paper Co. and Red River does not prevent International Paper Co. from qualifying as a statutory employer for purposes of the LWCA, International Paper Co. must still comply with the requirements of § 1061(A)(3). See Mitchell, 93 So. 3d at 759 (finding that the independent contractor contractual language was "irrelevant to the determination of whether [defendant] is entitled to tort immunity under the Act" because "even if a worker is found to be an independent contractor, he may still be subject to the workers' compensation laws if he is also determined to be a ‘statutory employer’ "). Because the contract neither mentions § 1061 of the LWCA nor references International Paper Co.'s statutory-employer status, International Paper Co. cannot enjoy the immunity granted to statutory employers by § 1061(A)(3).
Defendant's Reply relies on Lopez v. U.S. Sprint Communications Co., 2007-0052 (La. App. 4 Cir. 12/5/07), 973 So. 2d 819, to support its argument that International Paper Co. qualifies as a statutory employer under the "trade, business, or occupation" defense. (See ECF No. 49 at PageID 752–53.) Specifically, Defendant argues that the contractual arrangements in this case mirror those addressed by the Louisiana Fourth Circuit Court of Appeals in Lopez, which found that summary judgment was appropriate because the defendant qualified as a statutory employer under the "business, trade, and occupation" defense despite being unable to qualify under § 1061(A)(2)'s two-contract theory. (Id. )
However, the Court in Lopez made no mention of § 1061(A)(3)'s clear limiting language. 973 So. 2d at 826–27. Lopez's holding relied primarily on Jackson v. St. Paul Insurance Co., 04-0026, p. 8 (La. App. 1 Cir. 12/17/04), 897 So. 2d 684, 689, which held that a third-party was a statutory employer under the "trade, business, and occupation" defense outlined in § 1061. Id. at 826–27. However, the defendant in Jackson established that "a written contract existed between it and the primary contractor ... which recognized [the defendant] as a statutory employer." Jackson, 897 So. 2d at 688. The defendant in that case, therefore, met both of the elements required by § 1061(A)(3)'s "trade, business, and occupation" defense. See King, 2019 WL 4201475, at *3.
Louisiana federal district courts have also expressed similar concerns with Lopez's holding, especially given that courts are required to construe the immunity provisions under § 1061 narrowly and in favor of the employee. See, e.g., Donahue v. Republic Nat'l Distrib. Co., LLC, No. 16-13948, 2018 WL 5472792, at *5 (E.D. La. Oct. 29, 2018). Based on the Court's plain reading of § 1061(A)(3) and Louisiana Courts of Appeals' decisions concerning this defense, the Court agrees with the Eastern District of Louisiana, which recently stated, "A contract involving work for a principal's trade, business or occupation is therefore a necessary but not sufficient element of a statutory employer relationship." 2018 WL 5472792, at *5 (emphasis in original). Therefore, even if International Paper Co. is correct that the manufacture and supply of pine pulpwood is within the "trade, business, or occupation" of International Paper Co., the absence of any contractual language recognizing International Paper Co. as Red River's statutory employer prevents International Paper Co. from meeting its burden under § 1061(A)(3). Finally, cases that have applied the "trade, business, and occupation" defense to defendants who have entered into contractual agreements like those at issue in this case have universally involved contracts that include explicit language recognizing the defendant as a statutory employer. See, e.g., Jackson, 897 So. 2d at 689 (finding that § 1061(A)(3) applied because the contract between the defendant and the general contractor explicitly recognized the defendant as a statutory employer); Everett v. Rubicon, Inc., 2004-1988 (La. App. 1 Cir. 6/14/06), 938 So. 2d 1032, 1042 (finding the defendant entitled to immunity under the LWCA because the contract explicitly recognized the defendant as the contractor's statutory employer); Mitchell, 93 So. 3d at 758 (same). Such explicit language is absent in the contract between International Paper Co. and Red River, rendering these cases inapplicable to International Paper Co.'s argument.
The court in Donahue explained that it did "not find persuasive post -1997 cases cited to by Defendant Republic that rely on pre 1997 cases holding that the trade, business, or occupation defense applied after the 1997 amendment to the statute" and provided a footnote listing these cases. 2018 WL 5472792, at *5 (emphasis in original). In 1997, the Louisiana legislature added subsection (A)(3) to § 1061, which added the requirement that the contract include a recognition of the principal's status as a statutory employer. See 1997 La Sess. Law Serv. Act. (S.B. 922) (West). The cases listed by the Donahue court that improperly relied on pre-1997 cases included Lopez. 2018 WL 5472792, at *5 n.42. The Middle District of Louisiana in McCann v. Best Buy Co., No. 17-00108-BAJ-RLB, 2018 WL 3244999, at *4 (M.D. La. July 3, 2018), came to the opposite conclusion in a nearly identical situation to that presented in Donahue. The Middle District stated that the "written contract between Best Buy and T.D. Farrell does not explicitly or implicitly recognize that a statutory employer relationship exists between Best Buy" and the other contractors and subcontractors. 2018 WL 3244999, at *4. However, the court in McCann, like Lopez, made no mention of § 1061(A)(3)'s requirement that the contract recognize the principal's status as a statutory employer. McCann relied on Lopez, which based its decision largely on pre-1997 case law interpreting the "trade, business, or occupation" defense. See Donahue, 2018 WL 5472792, at *5, n.42.
In summary, the Court finds that International Paper Co. is not entitled to immunity from Plaintiff's tort claim. International Paper Co. cannot qualify as Plaintiff's statutory employer under § 1061(A)(2)'s "two-contract theory," nor does it qualify as Sheffield's statutory employer under § 1061(A)(3)'s "trade, business, or occupation" defense.
B. A genuine dispute of material fact exists as to whether the damaged curb was an "open and obvious" hazard.
Negligence claims under Louisiana law are governed by Louisiana Civil Code. La. Civ. Code Art. 2315. Courts employ a "duty-risk analysis in determining whether to impose liability" for negligence. Pinsonneault v. Merchants & Farmers Bank & Tr. Co., 2001-2217 (La. 4/3/02), 816 So. 2d 270, 275. This requires proof of five elements: (1) that the defendant "had a duty to conform his or her conduct to a specific standard of care (the duty element)"; (2) "the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty 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 protection element)"; and (5) actual damages. Id. at 275–76.
Louisiana Civil Code also provides a separate cause of action for premises liability. La. Civ. Code Art. 2317.1. Section 2317.1 provides:
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.
Id. In order to prevail on a claim of premises liability, the plaintiff must demonstrate that: (1) the "thing which caused the damage was in the defendant's custody or control,"; (2) that "[the thing] had a vice or defect that presented an unreasonable risk of harm"; (3) that the defendant "knew or should have known of the vice or defect"; (4) that any harm or damage could have been prevented if the defendant had exercised reasonable care; and (5) "that the defendant failed to exercise such reasonable care." Searile v. Ville Platte Med. Ctr., LLC, 2015-1183 (La. App. 3 Cir. 6/1/16), 194 So. 3d 1205, 1208.
Defendants ordinarily do not owe plaintiffs a general duty to protect against "open and obvious" hazards. Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533 (La. 2/20/04), 866 So. 2d 228, 234. "If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous[,] and the defendant may owe no duty to the plaintiff." Id. at 234. A landowner is not liable for damages caused by a condition on his land if that condition "should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner." Id. at 235 (citing Williams v. Leonard Chabert Med. Ctr., 98-1029 (La. App. 1 Cir. 9/26/99), 744 So. 2d 206, 211 ). However, a landowner generally "has a duty to keep [his] property in a reasonably safe condition", and "he must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence." Graupmann v. Family Ltd. P'ship, 2013-0580 (La. App. 1 Cir. 12/16/13), 136 So. 3d 863, 867.
Louisiana courts apply a four-factor balancing test to determine whether a condition is "unreasonably dangerous" such that a landowner must either correct the condition or warn individuals of its existence. Hutchinson, 866 So. 2d at 235. These include:
(1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its of its social utility or whether it is dangerous by nature.
Id.
Whether a defendant owes a duty to potential plaintiffs is a question of law. Labarre v. Occidental Chem. Co., 2017-1368 (La. App. 1 Cir. 5/2/18), 250 So. 3d 932, 938. Whether a condition presents an unreasonable risk of harm is "a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or the trier of the facts." Broussard v. State, Office of State Bldgs., 2012-1238 (La. 4/5/13), 113 So. 3d 175, 183. Whether a dangerous condition is "open and obvious" is a question of fact rightly to be determined by the jury. See id. at 185 ; see also Thomas v. W & T Offshore, Inc., No. 16-14694, 2018 WL 1805928, at *2 (E.D. La. Apr. 16, 2018).
The Court finds that genuine disputes of material fact exist preventing the Court from granting Defendant's Motion for Summary Judgment. Defendant asserts that Plaintiff's deposition testimony made clear that the broken curb was an "open and obvious" hazard. (See Reply Brief, ECF No. 49 at PageID 754–55.) Specifically, Defendant asserts that Sheffield's statement in his deposition that he "saw" the broken curb prior to his fall during his June 4, 2016 delivery "eviscerates Plaintiff's argument that genuine issues of material fact preclude summary judgment here." (Id. at PageID 754.) While it is correct that Plaintiff "saw" and was aware of the "busted" curb that was "already crumbled" (see Deposition of David Sheffield, ECF No. 44-1 at PageID 467–68), these statements do not definitively answer the question of whether the broken curb was open and obvious to all, such that a reasonable person exercising ordinary care would have avoided it. Although such admissions may go to whether the broken curb presented an unreasonable risk of harm under the general balancing test as described supra, that question is more appropriately addressed by the jury. See Broussard, 113 So. 3d at 185.
Defendant argues that the Plaintiff's Response to International Paper's Motion did not comply with the Amended Scheduling Order and Local Rule 56.1(b). (ECF No. 49.) The Court recognizes that the "DEFENSE RESPONSE TO DISPOSITIVE MOTIONS" deadline in the Amended Scheduling Order is not clear, and that it sets a deadline for "Defense Response" at January 6, 2020. (Id. ) Considering this ambiguity, the Court will not hold the Plaintiff to this deadline, given that Plaintiff likely did not know this deadline applied to their Response to Defendant's Motion. Plaintiff also complied with Local Rule 56.1(d). Plaintiff filed both his Response and his Statement of Undisputed Facts on January 8, 2020, the final day of the 28-day deadline imposed by Local Rule 56.1(d). (See ECF Nos. 46, 47.)
The Louisiana Supreme Court's holding in Broussard v. State ex rel. Office of State Buildings explained as follows:
The open and obvious inquiry ... focuses on the global knowledge of everyone who encounters the defective encounters the defective thing or dangerous condition, not the victim's actual or potentially ascertainable knowledge. Simply put, we would undermine our comparative fault principals if we allowed the fact-finder to characterize a risk as open and obvious based solely on the plaintiff's awareness of that risk. The plaintiff's knowledge or awareness of the risk created by the defendant's conduct should not operate as a total bar to recover in a case where the defendant would otherwise be liable to the plaintiff. Instead, comparative fault principles should apply, and the plaintiff's "awareness of the danger" is but one factor to consider when assigning fault to all responsible parties[.]
Id. at 188–89 (emphasis added) (internal citations and quotation marks omitted). Allowing Defendant to use evidence of Sheffield's actual knowledge of the broken or crumbling curb to support its claim that the danger presented by the curb was "open and obvious" would, therefore, undermine foundational principles of Louisiana tort law.
It is not disputed that International Paper Co. had a duty as owner of the Mansfield Mill site to "discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence." Graupmann, 136 So. 3d at 867. Regardless of whether the broken curb did or did not present an unreasonable risk of harm, the injury occurred on Defendant's property. Under Louisiana law, International Paper Co., if it knew of the dangerous condition, owed Sheffield and invitees to its Mansfield Mill a duty of care to either fix the curb or to warn Sheffield of the broken curb. Moreover, International Paper Co. contends that it warned Plaintiff by displaying signs warning of possible dangers, by providing all truck drivers an operating manual setting out the proper procedures for offloading trucks at its facility, and by establishing methods to prevent truck drivers from walking towards the passenger-side curb while offloading their vehicles. (See IP SOF, ECF No. 44 at PageID 278.) But evidence of measures taken to prevent the harm suffered by Sheffield go to the question of whether the risk of harm was unreasonable and to the issue of comparative fault, both of which are more appropriately addressed by the jury. See Broussard, 113 So. 3d at 188–89. After comparing Plaintiff and Defendant's statements of material facts, it is also clear that factual disputes remain as to whether the damaged curb presented an unreasonable risk of harm and whether International Paper Co. did enough to remedy the situation or warn drivers of the potential harm posed by this allegedly damaged curb. (Compare IP SOF, ECF No. 44 at PageID 276–79 with Sheffield SOF, ECF No. 47 at PageID 746–48.)
The Court is also unpersuaded by Defendant's arguments that a broken curb cannot present an unreasonable risk of harm. Defendant's Memorandum in support of its Motion for Summary Judgment relies primarily on two cases, Guillory v. Audubon Insurance Co., 417 So. 2d 892, 896 (La. App. 3 Cir. 1982), and Williams v. Liberty Mutual Fire Insurance Co., 2016-0996 (La. App. 1 Cir. 3/13/17), 217 So. 3d 421, 426. (ECF No. 43 at PageID 271–73.) Guillory does not support Defendant's argument. The factual scenario addressed by the court in Guillory is not analogous to Plaintiff's case: in Guillory, the plaintiff tripped over a fallen tree branch in his attempt to avoid another falling tree branch all while he was watching his brother and father cut branches from that same tree. See 417 So. 2d at 894. Guillory was also decided in 1982, long before the Louisiana Supreme Court clarified the question of law/question of fact distinction in Broussard. The factual scenario presented in Williams is also not analogous to Plaintiff's case. In Williams, the plaintiff tripped after stepping over "just a basic curb," and therefore there was no genuine dispute as to whether the "basic curb" was an unreasonably dangerous condition. 217 So. 3d at 426–27. The Court of Appeals noted that Plaintiff provided nothing more than a conclusory, fact-barren affidavit to support her assertion that the curb presented an unreasonable risk of harm. Id. at 426. In contrast, Sheffield has demonstrated that a genuine dispute of material fact exists as to whether the allegedly crumbling, broken curb located at a loading point in the International Paper Co. loading zone presented an unreasonable risk of harm. See supra.
The Court also finds that issue of whether a hazard was "open and obvious" is not a question of law more appropriately resolved on summary judgment. (See ECF No. 49 at PageID 755.) Defendant is correct that Broussard "should not be construed as precluding summary judgment when no legal duty is owed because the condition encountered is obvious and apparent to all and not unreasonably dangerous." (Id. (quoting Williams, 217 So. 3d at 425 ).) There exists a genuine dispute of material fact as to whether the broken curb was unreasonably dangerous. The cases since Bufkin v. Felipe's Louisiana, LLC, 2014-0288 (La. 10/15/14), 171 So. 3d 851, which clarified the standard set forth in Broussard, that have found an alleged condition to be "open and obvious" have all involved situations where the plaintiff failed to provide any evidence demonstrating the condition was unreasonably dangerous. See, e.g., Rodriquez v. Dolgencorp, LLC, 2014-1725 (La. 11/14/14), 152 So. 3d 871, 872 (finding that a shopping cart wheel in a parking lot was not an unreasonably dangerous condition because the plaintiff "failed to produce any evidence showing she could meet her burden at trial"); Allen v. Lockwood, 2014-1724 (La. 2/13/15), 156 So. 3d 650, 653 (finding that summary judgment in favor of defendant was warranted because the plaintiff "failed to produce any evidence to rebut [the defendant's] evidence or demonstrate how the alleged defects caused the accident"). In this case, Plaintiff has provided both evidence demonstrating that the broken curb caused Plaintiff's injury and evidence rebutting Defendant's contention that the broken curb did not pose an unreasonable risk of harm. (See Sheffield SOF, ECF No. 47 at PageID 745–48; see also Declaration of John McGrath, ECF No. 46-4 at PageID 731–32; Declaration of Robert O. Andres, ECF No. 46-7 at PageID 739–40.)
In summary, Plaintiff has provided evidence to create a genuine dispute of material fact as to whether Defendant International Paper Co. failed to take adequate measures to prevent what can be reasonably inferred to be an unreasonably dangerous condition, namely the broken and crumbling curb.
V. CONCLUSION
For the foregoing reasons, Defendant International Paper Co.'s Motion for Summary Judgment is DENIED .
SO ORDERED , this 21st day of February, 2020.