Emanuel Baham v. Fisk Electric Company, Regional Transit Authority, All Star Electric, Inc. and the City of New Orleans

EMANUEL BAHAM * NO. 2022-CA-0551

VERSUS *
COURT OF APPEAL
FISK ELECTRIC COMPANY, *
REGIONAL TRANSIT FOURTH CIRCUIT
AUTHORITY, ALL STAR *
ELECTRIC, INC. AND THE STATE OF LOUISIANA
CITY OF NEW ORLEANS *******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2015-05377, DIVISION “N-8”
Honorable Ethel Simms Julien, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
ON APPLICATION FOR REHEARING

(Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins,
Judge Paula A. Brown)

BELSOME, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS

Patrick G. Kehoe, Jr.
Rebecca Kehoe Thompson
ATTORNEY AT LAW
3524 Canal Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

Richard Todd Musgrave
Theresa Anderson Sutherland
Samuel C. Furman
MUSGRAVE, MCLACHLAN & PENN, L.L.C.
1555 Poydras Street
Suite 2100
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

LIMITED REHEARING GRANTED; RELIEF DENIED; ORIGINAL
OPINION AFFIRMED

APRIL 20, 2023

We grant appellant, Emanuel Baham’s application for rehearing for the

limited purpose of addressing his argument that the majority opinion supports his

contention that genuine issues of material fact remain.

Following this Court’s March 22, 2023 decision, Mr. Baham filed an

application for rehearing, seeking reconsideration of our decision. Mr. Baham

based his application on two assertions: (1) per the contract between Malone

Electrical Services, Inc. (“Malone Electrical”) and Ubisense/NO RTA, Malone

Electrical had knowledge of the location of the water and electrical lines; and (2)

Malone Electrical’s presence at the accident site on the date of the incident per the

Malone Electrical timesheet creates an issue of fact as to their supervision of J.

Star.
On rehearing, Mr. Baham attempts to expand his argument that summary

judgment is inappropriate by asserting that Malone Electrical accepted control of J.

Star’s excavation because the contract between Malone Electrical and

Ubisense/NO RTA reveals that Malone Electrical had knowledge of the water and

electrical lines and that Malone Electrical’s employee, Keith Pumilia (“Mr.

Pumilia”), coordinated with J. Star for excavation. In our original opinion, we

addressed that the record revealed that Malone Electrical and Ubisense

corresponded about the desired locations where the light poles were to be installed,

and that Malone Electrical contacted Louisiana One Call to confirm that the

locations were probable. This Court also addressed that the mere fact that Malone

Electrical and J. Star communicated about the project, and J. Star relied on Malone

Electrical to provide the location where the excavation would occur is insufficient

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to place a legal duty on Malone Electrical to protect Mr. Baham from the alleged

negligence of an independent contractor. See Hebert v. Rapides Par. Police Jury,

2006-2001, pp. 9-10 (La. 4/11/07), 974 So.2d 635, 643, on reh’g (Jan. 16, 2008)

Thus, we do not find merit in Mr. Baham’s argument that Malone Electrical

accepted control over J. Star’s excavation.

Next, we address Mr. Baham’s argument that the Malone Electrical

timesheet creates an issue of fact as to their supervision of J. Star. The timesheet

reveals the payroll periods, pay dates, and tasks each employee performed during

that pay period. The timesheet does not reveal specific dates Malone Electrical’s

employees were onsite. Notwithstanding the assumption that a Malone Electrical

employee was onsite on the date of the accident, jurisprudence has held that “while

the principal [Malone Electrical] has the ability to oversee the results of the

contractor’s [J. Star’s] work, the principal in no way influences the manner in

which the contractor does the work.” See Sasser v. Wintz, 2011-2022, p. 9 (La.

App. 1 Cir. 9/4/12), 102 So.3d 842, 848 (quoting Roca v. Security National

Properties-Louisiana Limited Partnership, 2011-1188, pp. 4-5 (La. App. 1st

Cir.2/10/12), 102 So.3d 778, 781).

In contrast, an employer has a great amount of control over an employee’s

work, which includes “the nature of the task and where it is to be performed,

setting the wage, and the power of dismissal.” Sasser, 2011-2022, p. 9, 102 So.3d

at 848 (quoting Roca, 2011-1188, pp. 4-5, 102 So.3d at 781). We do not find that

the timesheet creates a genuine issue of material fact because a principal has the

ability to oversee a contractor’s work. Id. at p. 9, 102 So.3d at 848. Additionally,

the timesheet does not reveal that any person listed on it was a J. Star employee, as

this would be an indication of Malone Electrical being an employer of J. Star—

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setting the wage, controlling the nature of tasks, and the power of dismissal. Id. at

p. 9, 102 So.3d at 848. Which in this case, Mr. Baham fails to establish in support

his argument that summary judgment should be precluded.

For these reasons, we grant a limited rehearing, deny relief, and affirm our

original opinion.

LIMITED REHEARING GRANTED; RELIEF DENIED; ORIGINAL
OPINION AFFIRMED

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