Nijel Young Versus Hard Rock Construction, L.L.C., Hard Rock Construction of Louisiana, L.L.C., and All South Consulting Engineers, L.L.C.

NIJEL YOUNG NO. 19-CA-484

VERSUS FIFTH CIRCUIT

HARD ROCK CONSTRUCTION, L.L.C., COURT OF APPEAL
HARD ROCK CONSTRUCTION OF
LOUISIANA, L.L.C., AND ALL SOUTH STATE OF LOUISIANA
CONSULTING ENGINEERS, L.L.C.

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 68,583, DIVISION "C"
HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

March 17, 2020

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Stephen J. Windhorst

AFFIRMED
JGG
SMC
SJW

COUNSEL FOR PLAINTIFF/APPELLANT,
NIJEL YOUNG
Harry E. Forst

COUNSEL FOR DEFENDANT/APPELLEE,
ALL SOUTH CONSULTING ENGINEERS, L.L.C.
David K. Persons

GRAVOIS, J.

This case arises out of an accident at a construction site at East St. John High

School, in LaPlace, Louisiana, owned by the St. John the Baptist Parish School

Board. Plaintiff, Nijel Young, was injured when the walls of a trench in which he

was laying drainage pipe collapsed. He sued both his employer, Hard Rock

Construction LLC/Hard Rock Construction of Louisiana, LLC (“Hard Rock”), and

All South Consulting Engineers, LLC, the engineering and construction

management firm hired by the School Board to provide engineering and

construction management services to the project.1 Ultimately, the trial court

granted summary judgment in favor of All South, finding that no genuine issues of

material fact existed as to All South’s non-liability to plaintiff under the explicit

provisions of All South’s contract with the School Board, and that All South was

entitled to judgment as a matter of law. This appeal followed. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On the date of the accident, October 20, 2014, plaintiff was employed as a

laborer by Hard Rock, the contractor, who had entered into a contract with the

School Board to install sections of 48-inch underground drainage pipes at East St.

John High School. The School Board also contracted with All South to provide

engineering and construction management services at the construction site.2

All South’s construction manager for this job, Scott Greig, testified in his

deposition that his job was observing the work of the contractor, and to make sure

that the work proceeded according to the plans and specifications of the contract

between Hard Rock and the School Board, as well as to monitor the construction’s

1
Hard Rock was dismissed from this tort suit after summary judgment was rendered in Hard
Rock’s favor, finding that plaintiff’s exclusive remedy against Hard Rock was workers’ compensation.
Thus, the remainder of this opinion will pertain to plaintiff’s case against All South.
2
The trial court’s reasons for judgment erroneously state that All South was hired by Hard Rock.

19-CA-484 1

progress and the delivery and use of construction materials. Mr. Greig testified

that All South’s job was to be present, but not in communication with the

contractor unless they observed something not being done to standards or the

contract specifications. Mr. Greig’s job duties also included overseeing All

South’s inspectors at other jobsites.3 The onsite inspector for this particular site

was Gerard Kelly, who reported to Mr. Greig and who had over 30 years’

experience in construction and around six years’ experience as an inspector.

Because Mr. Greig had been at another site in the morning, he did not arrive at the

East St. John site until the afternoon, at around 2:00 p.m., where Mr. Kelly had

been present observing Hard Rock’s trench crew since the beginning of the work

day. Mr. Kelly left shortly before the accident, after conferring with Mr. Greig

about the work performed by the trench crew that day.

The accident which injured plaintiff occurred on the first or second day of

work at the site at around 3:00 p.m. (witness testimony varied as to the exact time,

but all agreed it was in the afternoon), where Hard Rock was installing 8-foot-long

sections of 48-inch underground cement drainage pipes in a trench. Installation of

the pipe sections involved digging a trench and preparing the bedding soil

according to contract specifications on which the pipe would lay, and laying the

pipe. Mr. Young was injured when the trench in which he was working caved in

or collapsed.4

3
Though Mr. Greig was an engineer by education, he emphasized in his deposition that he was
not licensed in Louisiana, nor was he the All South “engineer” referred to by plaintiff, and that he was not
employed by All South to perform any engineering services on this job. The All South project engineer
was Chris Sanchez. No All South witness identified Mr. Sanchez as being present on the subject site that
day.
4
OSHA cited and fined Hard Rock for an OSHA violation regarding the trench following
plaintiff’s injury. The OSHA notice of violation, found in the record, stated that the trench was at least 8
feet deep. It appears that the depth of the trench varied, though this fact is not material to the issue in this
appeal.
Testimony indicated that the trench plans may not have been stamped by an engineer, but the
record is unclear as to whether the trench was of sufficient depth for OSHA to require such an
engineering stamp. This fact is also not material to the legal issue in this appeal.

19-CA-484 2

According to plaintiff, Mr. Greig, and Mr. Kelly, earlier that day, George

Gautreaux, who was Hard Rock’s crew foreman and whom Mr. Greig described as

the “trench expert,” called “Carl,” Hard Rock’s owner, to request a metal “trench

box,” because he felt that the shoring system being used by the crew to secure the

trench from cave-ins was not adequate, as the crew had experienced minor cave-ins

several times already that day.5 A trench box is a metal device with sides and

lateral bracing used to shore the trench to protect the crew from cave-ins. The

shoring system being used by the crew that day consisted of 2x12 or 2x10 oak

boards driven into the sides of the trench with approximately 24 inches of space

between them, all covered by black “geotechnical material,” described as looking

similar to black garbage bags. According to Mr. Kelly and Mr. Greig, Carl visited

the site at least once, and perhaps twice, after getting Mr. Gautreaux’s call, but

after inspecting the trench did not approve a trench box and told the crew to get

back to work without one.

Plaintiff and his father, Morris Young, who was also working on the same

crew, testified in depositions that the trench had experienced other cave-ins that

day, though none causing injury, which had prompted Mr. Gautreaux to call Carl.

Plaintiff also testified in his deposition that an All South “engineer,” whom he did

not name, had come over prior to the cave-in that injured plaintiff to inspect the

trench and measure the distance between the boards. However, it is unclear who

this person actually was.6 Mr. Greig, who testified in his deposition he was not the

project engineer, said that while he did look at the boards in the trench, he did not

5
The cave-ins were also described as “clumps” of dirt falling or sloughing off into the trench.
Mr. Greig testified that he saw clumps of dirt filling in the bottom of the trench with some water
accumulation.
6
Mr. Morris Young also briefly referred to an engineer being present at the site, along with other
construction personnel that he could not identify. His reference to the engineer’s presence was not
detailed and he did not describe him as measuring the distance between the boards.

19-CA-484 3

take any measurements. Mr. Greig testified that he was present when the subject

cave-in occurred and assisted in the crew’s efforts to free Mr. Young.

Mr. Young alleged in his petition for damages that various acts of

negligence committed at the jobsite by an unnamed All South “supervisor,” such as

failing to check the trench after being informed of previous cave-ins, and allowing

heavy construction trucks to travel in the immediate area of the trench, created an

unreasonable risk of injury to him, breaching various provisions in All South’s

contract with the School Board, and thus making All South liable for his injuries.

In due course, All South moved for summary judgment, contending that the

contract between it and the School Board clearly and unequivocally stated that

Hard Rock, the contractor and plaintiff’s employer, and not All South, had

exclusive responsibility for the safety of its crews, as well as exclusive control over

the means and methods of the construction work, and that as construction manager

and inspector, All South had no contractual responsibility for safety and no

contractual authority to interfere in or direct Hard Rock’s means and methods to

perform the work. The relevant contracts between the School Board and Hard

Rock and between the School Board and All South were attached to the pleadings

and thus admitted at the hearing on the motion for summary judgment.7

Mr. Young opposed the motion for summary judgment, arguing that All

South clearly had both the right and a duty under its contract with the School

Board for his safety, and breached those duties by failing to stop the work prior to

the trench collapse when the evidence showed that its employees observed the

dangerous conditions. He attached the affidavit of his expert witness, Neil B. Hall,

an architect, to his opposition, who opined that All South, the owner’s agent under

7
Contract documents consist of: (1) AIA Document Al0l-2007, Standard Form of Agreement
Between Owner and Contractor, between “Owner,” St. John the Baptist Parish Public Schools, and
“Contractor,” Hard Rock Construction, L.L.C.; (2) AIA Document A201-2007, General Conditions for
the Contract for Construction; and (3) AIA A201-2007, Contract between “Owner” and “Engineer.”

19-CA-484 4

the terms of its contract with the School Board, therefore had the owner’s

contractual authority to stop the work without cause, and thus could have stopped

the work “for cause” after observing the unsafe trench, after which it was “likely”

that Hard Rock would have heeded this “good engineering advice” and properly

stabilized the trench. All South moved to strike the affidavit, which the trial court

partially denied after the hearing in its judgment.8

Following a hearing on the summary judgment motion on December 6,

2018, the trial court took the matter under advisement, and on February 19, 2019,

rendered judgment in favor of All South. In its written reasons for judgment, the

trial court stated:

Here, the American Institute of Architects contract utilized in
determining the roles of the parties and the duties between them used
clear and explicit terms. Section 4.2.2 states that the engineer will not
have “control over, charge of, or responsibility for ... safety
precautions and programs in connection with the Work, since these
are solely the Contractor’s rights and responsibilities[.]” All South Ex.
C, §4.2.2 at 21. It is apparent that the parties intended to hold only
one party, Hard Rock Construction, liable for safety precautions.
Indeed, the same contract provides that the contractor is “solely
responsible” for all instrumentalities of the construction job. All
South Ex. C., §3.3.1 at 14-15. The contract intends for the engineer to
be in charge of determining the date of substantial compliance,
preparing change orders, reviewing contractor submissions, and
keeping the owner informed on the progress of the work. All South
Ex. C. at 21-22.

Further, citing Yocum v. City of Minden, 26,424 (La. App. 2 Cir. 1/25/95), 649

So.2d 129, in its reasons for judgment, the trial court specifically found that All

South had no contractual duty for plaintiff’s safety, and dismissed plaintiff’s case

against All South with prejudice. Plaintiff’s timely appeal followed.

On appeal, plaintiff argues that the trial court erred in finding that All South

had no duty towards plaintiff for his safety and cited to specific contractual

8
The trial court’s ruling on the motion to strike has not been raised as an issue in this appeal.

19-CA-484 5

provisions in All South’s contract with the School Board. In brief, plaintiff also

cites Yocum for the position that All South owed him a “moral duty” for his safety.

LAW AND ANALYSIS

“A motion for 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 burden of proof rests with the mover. Nevertheless, if

the mover will not bear the burden of proof at trial on the issue that is before the

court on the motion for summary judgment, the mover’s burden on the motion

does not require him to negate all essential elements of the adverse party’s claim,

action, or defense, but rather to point out to the court the absence of factual support

for one or more elements essential to the adverse party’s claim, action, or defense.

The burden is on the adverse party to produce factual support sufficient to establish

the existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law.” La. C.C.P. art. 966(D)(1).

Appellate courts review summary judgments de novo using the same criteria

applied by trial courts to determine whether summary judgment is appropriate.

Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086,

1087. A de novo review or an appeal de novo is an appeal in which the appellate

court uses the trial court’s record, but reviews the evidence and law without

deference to the trial court’s rulings. Wooley v. Lucksinger, 06-1140 (La. App. 1

Cir. 12/30/08), 14 So.3d 311, 352; Sarasino v. State Through Department of Public

Safety and Corrections, 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923, 928.

The decision as to the propriety of a grant of a motion for summary judgment must

be made with reference to the substantive law applicable to the case. Muller v.

Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

19-CA-484 6

In determining the duty owed to an employee of a contractor by an

engineering firm also involved in the project, the court must consider the express

provisions of the contract between the parties. Black v. Gorman-Rupp, 00-1223

(La. App. 4 Cir. 7/11/01), 791 So.2d 793, 796, writ denied, 01-2302 (La.

11/21/01), 802 So.2d 635, citing Yocum v. City of Minden, 26,424 (La. App. 2 Cir.

1/25/95), 649 So.2d 129, 131-132, which held:

Duty is a question of law. Harris v. Pizza Hut, 455 So.2d 1364
(La. 1984); Crane v. Exxon Corp., U.S.A., 613 So.2d 214 (La. App. 1
Cir. 1992). The particular facts and circumstances of each individual
case determine the extent of the duty and the resulting degree of care
necessary to fulfill that duty. Socorro v. City of New Orleans, 579
So.2d 931 (La. 1991); Crane v. Exxon Corp., U.S.A., supra. In
determining the duty owed to an employee of a contractor by an
engineering firm also involved in the project, the court must consider
the express provisions of the contract between the parties. Day v.
National U.S. Radiator Corp., 128 So.2d 660, 241 La. 288 (La. 1961).

The interpretation of a contract is the determination of the common intent of

the parties. La. C.C. art. 2045. For purposes of interpreting a contract, a contract

is “ambiguous” when it lacks a provision bearing on the issue, its written terms are

susceptible to more than one interpretation, there is uncertainty as to its provisions,

or the parties’ intent cannot be ascertained from the language used. Plaisance v.

Jefferson Par. Sch. Bd., 18-16 (La. App. 5 Cir. 7/31/18), 252 So.3d 996, 1003,

citing Lomark, Inc. v. LavigneBaker Petroleum, LLC, 12-389 (La. App. 5 Cir.

2/21/13), 110 So.3d 1107, 1111. The common intent of the parties to a contract is

determined in accordance with the general, ordinary, plain, and popular meaning of

the words used in the contract. Id. (Internal citations omitted.)

ASSIGNMENT OF ERROR NUMBER ONE

“Contractual duty” for safety to plaintiff

In his first assignment of error, plaintiff argues that the trial court erred when

it failed to consider the express provisions of the contract between the parties in its

determination that All South owed no contractual duty for safety to plaintiff, the

19-CA-484 7

employee of the contractor. Plaintiff argues that although the contract does state

that the contractor was responsible for safety, as well as had exclusive control over

the means and methods of construction, the Contracts, Plans and Specs carved out

exceptions to this contractual language, specifically Section 3.3.1, which makes an

exception to the language of Section 4.2.2. Plaintiff argues that Section 3.3.1 shifts

responsibility for means, methods, techniques, sequences, and procedures to the

owner if the contractor places the owner on notice of a safety issue.

All South’s contract with the School Board contains the following explicit

provisions regarding responsibility for construction means and methods and safety

at the work site. First, Section 3.3.1, found under the heading “Supervision and

Construction Procedures,” provides:

The Contractor shall supervise and direct the Work using the
Contractor’s best skill and attention. The Contractor shall be solely
responsible for, and have control over, construction means, methods,
techniques, sequences and procedures and for coordinating all
portions of the Work under the Contract, unless the Contract
Documents give other specific instructions concerning these matters.
If the Contract Documents give specific instructions concerning
construction means, methods, techniques, sequences or procedures,
the Contractor shall evaluate the jobsite safety thereof and, except as
stated below, shall be fully and solely responsible for the jobsite
safety of such means, methods, techniques, sequences or procedures.
If the Contractor determines that such means, methods, techniques,
sequences or procedures may not be safe, the Contractor shall give
timely written notice to the Owner and Engineer and shall not proceed
with that portion of the Work without further written instructions from
the Engineer. If the Contractor is then instructed to proceed with the
required means, methods, techniques, sequences or procedures
without acceptance of changes proposed by the Contractor, the Owner
shall be solely responsible for any loss or damage arising solely from
those Owner-required means, methods, techniques, sequences or
procedures. (Emphasis added.)

Next, in Section 4.2.2, the contract provides, in pertinent part:

… The Engineer [All South] will not have control over, charge
of, or responsibility for, the construction means, methods, techniques,
sequences or procedures, or for the safety precautions and programs
in connection with the Work, since these are solely the Contractor’s
[Hard Rock’s] rights and responsibilities under the Contract
Documents, except as provided in Section 3.3.1. (Emphasis added.)

19-CA-484 8

Upon review, we find no ambiguity in the part of Section 3.3.1 which states

that “If the Contractor determines that such means, methods, techniques, sequences

or procedures may not be safe, the Contractor shall give timely written notice to

the Owner and Engineer and shall not proceed with that portion of the Work

without further written instructions from the Engineer.” This section, in plain

terms, only becomes operable if the contractor gives timely written notice about a

safety concern to the engineer. As the facts and evidence show that this sequence

of events did not occur, All South had no responsibilities or duties to any person

under this Section.

The other “exceptions” to the contract language plaintiff relies on are as

follows. First, plaintiff cites Section 1.1.9, which provides:

The Owner has retained the services of All South Consulting
Engineers, LLC as its Program Manager. The Program Manager is
the Owner’s Representative and Agent for all matters except for
adjustments in the Contract Sum or Contract Time. The Owner
designates its Superintendent to act on its behalf involving matters of
the Contract Sum or the Contract Time.
Plaintiff argues that this provision makes All South the owner’s agent who can act

for the owner to exercise all other contractual provisions. Plaintiff next cites

Section 14.3.1, which provides:

The Owner may, without cause, order the Contractor in writing to suspend,
delay or interrupt the Work in whole or in part for such period of time was
the Owner may determine.

Section 2.3, also cited by plaintiff, provides, in pertinent part:

If the Contractor fails to correct work that is not in strict accordance
with the requirements of the Contract Documents as required by
Section 12.2, repeatedly fails to carry out Work in strict accordance
with the Contract Documents, or fails or refuses to provide a sufficient
amount of properly supervised and coordinated labor, materials, or
equipment so as to complete the Work within the Contract time, the
Owner may issue a written order to the Contractor to stop the Work,
or any portion thereof, until the cause for such order has been
eliminated; however, the right of the Owner to stop the Work shall not
give rise to a duty on the part of the Owner to exercise this right for
the benefit of the Contractor or any other person or entity, except to
the extent required by Section 6.1.3. … (Emphasis added.)

19-CA-484 9

The last sentence of Section 6.1.3 provides:

Contractor shall do all cutting, fitting and patching of the Work
required to make its several parts come together properly in a manner
that will not endanger any Work of others by cutting, excavating or
otherwise altering their work without the written consent of the
Owner.
Finally, Section 2.5 cited by plaintiff provides:

The Owner has retained a Program Manager. The Engineer retained
by the Owner to design the Project has the responsibility to administer
the Contract for Construction, including observation of the Work.
Contractor stipulates and agrees that the Owner and Program Manager
shall have no responsibility for the performance or failure to perform
of the Engineer, and Contractor stipulates and agrees that the
Contractor shall have no claim or cause of action of any kind
whatsoever directly or indirectly against the Owner or Program
manager arising out of or in any way connected with the performance
or failure to perform of the Engineer.

Plaintiff contends that reading these provisions in conjunction with one another

leads to the legal conclusion that the defendant, All South, had a duty to stop the

work upon observing a dangerous condition.

As did the trial court, we disagree with plaintiff’s position that the sections

of the contract he cites override the aforementioned explicit provisions that place

the responsibility for means and methods, as well as responsibility for its workers’

safety, squarely under the control of Hard Rock. Besides the requirement that the

work stop notice must be in writing, a condition that would not have timely served

plaintiff in this case, the provision cited by plaintiff, Section 14.3.1, is entitled

“Suspension by the Owner for Convenience” and plaintiff has simply not borne his

burden of proving that it was intended, as he claims, to give All South full

authority to stop the progress of any work they felt was unsafe.

The contractual provisions relied upon by plaintiff do not pertain to safety,

but rather pertain to the pace of the work and provide the Owner with remedies in

the event the work does not proceed timely, as well as provide specific direction to

the Contractor regarding safeguarding the work of “others” on the jobsite. There is

no testimony or evidence in the record that these cited provisions pertain to safety

19-CA-484 10

or have been construed by other courts to allow an engineer the authority to

intervene for safety when other explicit contractual provisions gave exclusive

control over worker safety, as well as means and methods, to the contractor (here,

Hard Rock). There is no testimony or evidence in the record indicating that the

work was not proceeding in accordance with the contract documents.9

Accordingly, upon de novo review, we find that no genuine issues of material fact

exist as to All South’s non-liability to plaintiff under the explicit provisions of All

South’s contract with the School Board, and that All South is entitled to judgment

as a matter of law. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

“Moral duty” to plaintiff

Plaintiff also asserts in brief that All South owed him a “moral duty,” i.e., a

duty not arising out of the contract provisions, to stop the work if it observed a

dangerous working condition. He argues that deposition testimony shows that All

South was aware of the dangerous condition of the trench. He contends that the

trial court erred in failing to consider the issue of the moral duty, as per Yocum.

Upon review, we disagree with plaintiff that the trial court should have

considered the issue of whether a “moral duty” was owed to plaintiff by All South.

Both plaintiff’s petition and his opposition to the motion for summary judgment

argue that All South breached contractual duties to him for his safety, a position

that the trial court rejected and we have affirmed. While plaintiff did briefly

mention, in his opposition to the motion for summary judgment, Yocum’s

discussion of whether the engineer owed Mr. Yocum a “moral duty” for his safety,

plaintiff’s opposition neither argued nor established that Louisiana law recognizes

9
There was no testimony that the contract specifications were not being followed. While Mr.
Greig testified that he expected the work to be further along than he found, he also noted that it was either
the first or second day on the job, and that work crews typically find their “rhythm” and perform more
efficiently as work progresses. It does not appear that Mr. Greig took any measures with Hard Rock to
address the pace of the work prior to plaintiff’s accident.

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such a duty in a construction case when the parties’ contracts explicitly state

otherwise.

However, because plaintiff raises this issue in his appellate brief, this Court

will analyze Yocum and address the merits of this issue. The Yocum case arose out

of a construction site accident where Mr. Yocum, an employee of the contractor,

was injured in an excavation ditch. Mr. Yocum filed suit against the engineering

firm, Owen & White, who was engaged by the owner to provide engineering

services and construction oversight, similar to the case at bar. Yocum, 649 So.2d at

130. Mr. Yocum alleged that Owen & White was liable to plaintiff because it

“failed to correct or report the unsafe slope of the ditch,” and that its employee was

negligent for “failing to observe, warn of, report, or correct an unsafe condition.”

Id. After a bench trial, the trial court held that Owen & White owed no contractual

duty to warn of the conditions of the ditch and that there was no connection

between Mr. Yocum’s injury and the work performed by Owen & White. Id. at

131. The court of appeal scrutinized the contract documents, finding that the

contract clearly defined and limited Mr. Hardin’s (Owen & White’s engineer)

duties, and that Mr. Hardin had limited authority and was expressly prohibited

from guiding the contractor or its employees in its methods. The court therefore

concluded that Mr. Hardin did not breach any legal duty bestowed upon him via

the contract. Id. at 132.

The court next briefly considered, however, whether Owen & White owed

any “moral duty” to Mr. Yocum by not warning of the dangerous condition posed

by the slope of the ditch at the time of the accident. Yocum, 649 So.2d at 132. The

court noted that both parties’ expert witnesses testified that Mr. Hardin would have

had a “moral duty to warn” the contractor if he knew a condition to be

19-CA-484 12

unreasonably dangerous.10 Id. at 133. Without analyzing any law, jurisprudence,

or policy factors regarding whether such an extra-contractual tort duty first existed

or should exist, the court reasoned that such a duty could not have been breached if

Mr. Hardin did not know about the dangerous condition. Id. Based on Mr.

Hardin’s testimony and review of the record as a whole, the court of appeal

concluded that the trial court did not err in determining that Mr. Hardin did not

know the ditch was unsafe and therefore could not be held to a moral duty to warn.

Id.

Upon review, we find that Yocum’s brief discussion about the possibility of a

moral or tort duty to Mr. Yocum was merely dicta and was likely the Yocum

court’s attempt to be thorough by addressing an argument apparently made by the

parties. Tellingly, a thorough search of Louisiana jurisprudence fails to uncover

any Louisiana court citing Yocum as creating or recognizing a moral or tort duty to

a contractor’s employee on behalf of an engineering firm contrary to the

established body of case law holding that specific contractual provisions govern

the duties and responsibilities of the parties.11 Furthermore, we find no other line

of cases supporting this theory of recovery. Such dicta does not jurisprudentially

10
While the court used the term “moral” to describe this other alleged duty, it appears that the
court meant an enforceable “legal” duty, such as a tort duty, one not contractual in nature, and not a
“moral duty” or “moral obligation” as it is described elsewhere in Louisiana law and jurisprudence. See,
for instance, the discussion of moral duty and natural obligations found in La. C.C. art. 1760, et seq., in
Azaretta v. Manalla, 00-227 (La. App. 5 Cir. 7/25/00), 768 So.2d 179. Also, see for example Irwin v.
Hunnewell, 207 La. 422, 433, 21 So.2d 485, 488 (1945). The legal tenets and reasoning in these lines of
cases have no application to the case at bar and are merely cited here to clarify the type of duty evidently
described in Yocum.
11
Besides the Black case, Yocum was cited by a Louisiana court in Simmons Marine, LLC v.
Enervest Operating, LLC, 05-1303, 2005 WL 2050283 (E.D. La. Aug. 3, 2005) to determine that oyster
dredgers, who were unrelated legally to a natural gas pipeline, were owed no duty, contractual or
otherwise, by an engineering firm engaged by the builder of a natural gas pipeline. Simmons is factually
and legally distinguishable to the instant case.
See also Johnson v. R.R. Controls, L.P., 2015 WL 566800 (W.D. La. Feb. 10, 2015), following
Yocum for the position that the parties’ responsibilities are regulated by contract, as well as Taylor v.
Voigtlander, 36,670 (La. App. 2 Cir. 12/11/02), 833 So.2d 1204, 1206 and Brewer v. J.B. Hunt Transp.,
Inc., 08-1666 (La. App. 1 Cir. 3/18/09), 9 So.3d 932, 945, aff’d in part, rev’d in part on different grounds,
09-1408 (La. 3/16/10), 35 So.3d 230, which both cited Yocum for the general principle that duty is a
question of law.
See also Star Enter. v. Am. Mfrs. Mut. Ins. Co., 03-189 (La. App. 5 Cir. 5/28/03), 847 So.2d 717,
720, writ denied sub nom. Star Enter. v. Am. Manufactures Mut. Ins. Co., 03-2218 (La. 11/14/03), 858
So.2d 435, where in this Court cited Yocum for a different legal issue that is not relevant in this case.

19-CA-484 13

create a duty to a contractor’s employee from an engineer/architect for safety that

operates independently of explicit contractual provisions. The Yocum court’s short

disposition of the parties’ arguments, lacking any analysis of law or policy, does

not supplant the established body of law holding that contractual provisions govern

the relationship and duties of the parties thereto. As in the case at bar, the

contractual provisions in Yocum gave the responsibility for safety, as well as means

and methods of construction, to the contractor and gave no responsibility or control

over those issues to the engineer.

Also in the instant case, unlike in Yocum, each side did not testify that a

moral duty exists from the engineer to the contractor’s worker. Plaintiff’s expert

Neil B. Hall did not opine that All South had a moral or tort duty to plaintiff, but

rather confined his analysis to the terms of the contract. Only defendant’s project

manager, Scott Greig, who was a fact witness, testified that if he “saw something

that was imminently a threat to life, limb, or eyesight, absolutely, we have a moral

obligation to stop it.”12 He testified that he did not observe any condition that he

believe reached that threshold. Gerard Kelly, who testified that he told Mr. Greig

he did not believe that the shoring system Hard Rock was using in the trench was

“kosher,” nonetheless also said that in his experience, he had no right to tell the

contractor anything regarding safety, and he did not expect Mr. Greig to act on Mr.

Kelly’s opinion about the trench.13 He acknowledged that he did not know the

specific provisions of the contracts, nor did he know the status of the law on this

issue.

12
Mr. Greig testified in his deposition as follows: “The specifications in this job were very
specific that the trench safety was exclusively to the contractor. The design, how they implemented it,
their means and methods, if you will. But certainly, with my background, any time I saw and I would tell
my inspector that we saw something that was imminently a threat to life, limb, or eyesight, absolutely, we
have a moral obligation to stop it.”
13
Plaintiff notes, however, that Mr. Kelly testified that in another unspecified job, he once told a
worker to get out of a trench because the worker was alone in the trench and without a hard hat, because
he believed that worker to be in a highly dangerous position. Mr. Kelly’s testimony about this prior
unrelated incident does not somehow indicate that he assumed an extra contractual duty to plaintiff in this
case.

19-CA-484 14

Plaintiff also argued to this Court that All South assumed a duty to plaintiff

when its “engineer” measured the boards in the trench and gave his approval. At

the very least, plaintiff argues that his testimony that a person he believed was an

All South engineer measured the boards and approved the trench creates a genuine

material issue of fact as to whether All South assumed a duty towards him,

precluding summary judgment. We disagree.

An assumption of duty arises when the defendant (1) undertakes to render

services, (2) to another, (3) which the defendant should recognize as necessary for

the protection of a third person. Hebert v. Rapides Par. Police Jury, 06-2001 (La.

4/11/07), 974 So.2d 635, 643, on reh’g (Jan. 16, 2008), quoting Bujol v. Entergy

Services, Inc., 03-0492 (La. 5/25/04), 922 So.2d 1113, 1129. The Hebert Court

continued:

The Bujol court described the action required by the defendant
in such instances as an affirmative undertaking and further explained
that the determination of whether such an action was taken involves
an examination of the scope of the defendant’s involvement, the
extent of the defendant’s authority, and the underlying intent of the
defendant. 03-0492 at p. 18, 922 So.2d at 1131. As in other civil
cases, the burden is on the plaintiff to prove by a preponderance of the
evidence facts sufficient to establish the action undertaken by the
defendant. See e.g., Bujol, 03-0492 at p. 16, 922 So.2d at 1130.
However, neither a defendant’s concern with safety conditions
and its general communications regarding safety matters, nor its
superior knowledge and expertise regarding safety issues, will create a
duty to guarantee safety. Bujol, 03-0492 at p. 21, 922 So.2d at 1133.
Likewise, inspections and mere safety recommendations, which
recommendations are not mandatory and are not within the authority
of the defendant to remediate, cannot create such a duty. Id. at 20-22,
1133-34.
Hebert, 974 So.2d at 644.

Bearing this threshold in mind, we find that plaintiff’s deposition testimony

regarding the identity of the “engineer” falls critically short of meeting his

19-CA-484 15

statutory burden of proof in opposing All South’s motion for summary judgment.14

The depositions of plaintiff, his father, Mr. Greig, and Mr. Kelly establish that

many personnel from various construction-related companies were onsite on the

day of the accident. Taken as a whole, plaintiff offered insufficient evidence that

this person was first, an engineer, or who was, second, employed by All South.

Without any other facts tending to establish this person’s identity, plaintiff fails to

show the existence of a genuine issue of material fact showing that All South

assumed any duty towards plaintiff. Accordingly, this assignment of error is

without merit.

CONCLUSION

Upon de novo review, for the foregoing reasons, we find that no genuine

issues of material fact exist and that All State Consulting Engineers, LLC is

entitled to judgment as a matter of law. Accordingly, we affirm the trial court’s

grant of summary judgment in favor of All South Consulting Engineers, LLC,

dismissing plaintiff’s suit against it with prejudice.

AFFIRMED

14
As stated above, “The burden is on the adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a
matter of law.” La. C.C.P. art. 966(D)(1).

19-CA-484 16

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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19-CA-484
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