Daniel Harris v. Boh Bros. Construction Co., L.L.C. And Abc Insurance Company

Supreme Court of Louisiana
March 16, 2021
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
DANIEL HARRIS
VS.
BOH BROS. CONSTRUCTION CO., L.L.C.
AND ABC INSURANCE COMPANY
No.2021-C-00084
_ _
_ _ _ _
I
N RE: Boh Bros. Construction Co., L.L.C. - Applicant Defendant; Applying For
Writ Of Certiorari, Parish of Orleans Civil, Orleans Civil District Court Number(s)
2017-03303, Court of Appeal, Fourth Circuit, Number(s) 2020-CA-0248;
_ _ _ _ _ _
March 16, 2021
Writ application granted. See per curiam.
Genovese, J., would deny and assigns reasons.
Griffin, J., dissents.
WJC
JLW
JDH
SJC
JBM
03/16/2021 "See News Release 010 for any Concurrences and/or Dissents."

1
SUPREME COURT OF LOUISIANA
NO. 2021-C-00084
DANIEL HARRIS
VERSUS
BOH BROS. CONSTRUCTION CO., LLC, ET AL.
APPLYING FOR SUPERVISORY WRIT TO
THE FOURTH CIRCUIT COURT OF APPEAL
PER CURIAM
WRIT GRANTED. Defendant, Boh Bros., contracted with the United States
Army Corps of Engineers to build a concrete canal under Louisiana Avenue as part
of a flood control project in uptown New Orleans. The contract required a three foot
steel wall surround the culvert to protect against falls. Boh Bros installed a 42 inch
steel wall, exceeding the minimum requirement. In addition, a six foot chain-linked
fence surrounded the entire site. Plaintiff, Daniel Harris, is completely blind. On
the night of his accident, he somehow ended up inside the fenced-in construction site
at the bottom of the culvert. He cannot recall how he ended up inside the
construction site, and there are no witnesses to testify how his fall occurred. He filed
suit against Boh Bros., who claims government contractor immunity.
To qualify for this immunity, a party must meet the requirements set forth by
the U.S. Supreme Court in Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).
This requires the government approve reasonably precise specifications, the
contractor’s work confo rm to those specifications, and the contractor warn the
government of any dangers known to the contractor, but not to the government. Id.
Applying these factors, the trial court found immunity and granted summary
judgment. The contract contained prec ise specifications approved by the Army
03/16/21

2

Corps of Engineers. This included detailed specifications regarding the installation
of a retaining wall surrounding the culvert and the installation of a safety fence
around the construction site. D efendant presented evidence that it conformed to
required specifications. The construction site was surrounded by a six foot chain -
link fence and the culvert was surrounded by a 42 inch retaining wall on all sides.
Testimony from the project manager confirmed the project met contractual
specifications. The Army Corp of Engineers also maintained a presence at the
project and evaluated the site to assure compliance. Finally, the government knew
of the risk of construction activities.
The court of appeal reversed , finding defendant failed to meet the first
requirement of Boyle–that the government approve reasonably precise
specifications. Specifically the court pointed to defendant’s failure to submit a copy
of the plans and specifications approved by the Army Corps of Engineers. However,
a filing before the trial court indicated the “Plaintiff does not dispute the first prong
of the Affirmative Defense of Governmental Contractor Immunity applies. Thus,
there is no need to discuss that issue as clearly the gove rnment approved the
specifications.”
An admission by a party in a judicial proceeding is a judicial confession and
is full proof against the party making it. La. Civ. Code art. 1853; C.T. Traina, Inc.
v. Sunshine Plaza, Inc. , 2003 -1003, (La.12/3/03), 86 1 So.2d 156, 159. This
admission “has the effect of waiving evidence as to the subject of the admission–of
withdrawing the subject matter of the confession from issue.” Cichirillo v. Avondale
Indus., Inc., 2004-2894, (La. 11/29/05), 917 So.2d 424, 429 (citing Cheatham v. City
of New Orleans, 378 So.2d 369, 375 (La. 1979)). Plaintiff’s admission removed the
first requirement of Boyle from issue. The court of appeal erred in denying defendant
immunity on this ground.
03/16/21

3

After erroneously analyzing the firs t element, the court of appeal expressly
pretermitted consideration of the remaining elements. Therefore, we remand to the
court of appeal to complete its review of defendant’s government contractor
immunity claim.

03/16/21