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

BELSOME, J., DISSENTS 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

AFFIRMED
MARCH 22, 2023

SCJ
PAB

Plaintiff, Emanuel Baham appeals the May 31, 2022 judgment granting

defendant, Malone Electrical Services, Inc.’s (“Malone Electrical”) motion for

summary judgment and dismissing Mr. Baham’s claims against Malone Electrical

with prejudice. For the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

This suit arises from injuries Mr. Baham sustained when repairing a water

main. Malone Electrical was retained by Ubisense and New Orleans Regional

Transit Authority (“RTA”) to install light poles and signs at Canal Street between

South Carrollton Avenue and South Solomon Street in New Orleans. Malone

Electrical hired J. Star Enterprises, Inc. (“J. Star”) as a subcontractor to dig holes

and pour concrete so that Malone Electrical could install the light poles. Prior to J.

Star beginning its work, Keith Pumilia, an employee of Malone Electrical

requested a site visit with Louisiana One Call-811 to review the location for the

signs. An appointment was set by Louisiana One Call on August 18, 2014 to meet

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onsite to determine any potential underground utility conflicts at the subject

location.

On October 7, 2014, Eric Miller of J. Star called Louisiana One Call on the

date the work was scheduled to begin. Bobby Battles, an employee of J. Star was

excavating at the subject location when he noticed water slowly filling one of the

holes due to the damage of a water main. Mr. Battles called the New Orleans

Sewerage and Water Board (“SWB”) to cut the water service. On the same date,

Mr. Baham, an employee of the SWB, went to repair a water main located at the

subject location. Mr. Baham cut into an energized, unmarked, and uninsulated

electrical wire, which caused him to suffer an electrical shock that resulted in

severe and permanent injuries.

Mr. Baham filed his petition for damages, naming as defendants, Fisk

Electric Company, RTA, Allstar Electric, Inc. (“Allstar Electric”), and the City of

New Orleans. Thereafter, Mr. Baham filed a supplemental and amending petition

for damages, naming J. Star, Malone Electrical, and AIX Specialty Insurance as

defendants. Mr. Baham alleged that J. Star and its employee were responsible for

damaging the water line in connection with the installation of the light poles at the

scene and damaged the pipe protecting the electrical line. Mr. Baham further

alleged that Malone Electrical failed to notify Louisiana One Call at least forty-

eight hours prior to the start of the excavation and is also liable because it hired J.

Star.

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On March 2, 2022, Malone Electrical filed a motion for summary judgment

arguing that the duty element of the duty/risk analysis and comparative fault could

not be established by plaintiff. Thereafter, Mr. Baham opposed the summary

judgment. The trial court held a hearing on the motion for summary judgment on

April 22, 2022. The court granted Malone Electrical’s motion for summary

judgment and dismissed Mr. Baham’s claims against Malone Electrical with

prejudice. In the oral reasons for judgment, the trial court provided that the fact

Malone Electrical made several calls to Louisiana One Call does not create liability

on their part. On June 8, 2022, Mr. Baham timely filed a motion for devolutive

appeal. This appeal follows.

STANDARD OF REVIEW

An appellate court review summary judgments de novo, using the same

criteria applied by the trial courts. Bellsouth Telecomms., Inc. v. Eustis Eng’g Co.,

Inc., 2007-0865, p. 2 (La. App. 4 Cir. 12/19/07), 974 So.2d 749, 750 (citing

Stanton v. Tulane University of Louisiana, 2000–0403 (La. App. 4 Cir. 01/10/01),

777 So.2d 1242). The standard for granting a motion for summary judgment is set

forth in La. C.C.P. art. 966(A)(3) which provides in pertinent part, “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.” As articulated by this Court in

Brindell v. Carlisle Indus. Brake & Friction, Inc.,

La. C.C.P. art. 966(D)(1) provides that on a motion for summary
judgment, although the burden of proof rests with the mover, if the

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mover will not bear the burden of proof at trial, the mover must only
point out the absence of factual support for one or more elements
essential to the adverse party's claim. The burden then shifts to the
adverse party who has the burden 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.

2022-0153, p. 4 (La. App. 4 Cir. 9/21/22), 349 So.3d 678, 681 (quoting Bercy v.

337 Brooklyn, LLC, 2020-0583, pp. 3-4 (La. App. 4 Cir. 3/24/21), 315 So.3d 342,

345).

“In determining whether an issue is genuine, courts cannot consider the

merits, make credibility determinations, evaluate testimony, or weigh evidence.”

Precept Credit Opportunities Fund, L.P. v. Elmore, 2021-0502 (La. App. 4 Cir.

4/20/22, 3–4), 338 So.3d 87, writ denied, 2022-00782 (La. 9/20/22), 346 So.3d 288

(quoting Tran v. Collins, 2020-0246, p. 3 (La. App. 4 Cir. 8/20/21), 326 So.3d

1274). “A genuine issue of material fact is one as to which reasonable persons

could disagree, ‘if on the state of the evidence, reasonable persons could reach only

one conclusion, there is no need for trial on that issue, and summary judgment is

appropriate.’” Brindell, 2022-0153, p. 4, 349 So.3d at 681 (quoting Smith v. Our

Lady of the Lake Hosp., Inc., 1993-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751).

Further, a fact is material when its existence or nonexistence may be essential to

the plaintiff’s cause of action under the applicable theory of recovery. Id. (quoting

Chapital v. Harry Kelleher & Co., Inc., 2013-1606, p. 5 (La. App. 4 Cir. 6/4/14),

144 So.3d 75, 81).

DISCUSSION

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On appeal, Mr. Baham argues that the trial court erred in granting Malone

Electrical’s motion for summary judgment as genuine issues of material fact exist.

Plaintiff asserts three assignments of error:

1) The trial court erred in determining Malone Electrical did not assume
the duty to notify Louisiana One Call.

2) The trial court erred in determining Malone Electrical is not liable for
the performance insufficiencies of J. Star.

3) The trial court erred in determining Malone Electrical is entitled to
summary judgment as a matter of law.

While Mr. Baham assigns three errors, we narrow our discussion to two

issues: 1) whether Malone Electrical assumed a duty to notify Louisiana One Call,

and 2) whether the trial court erred in granting summary judgment in favor of

Malone Electrical. We begin our discussion by addressing whether Malone

Electrical assumed the duty to notify Louisiana One Call.

Assumption of Duty

Mr. Baham argues that Malone Electrical voluntarily and gratuitously

assumed the duty mandated by the Louisiana Underground Utilities and Facilities

Damage Prevention Law by Mr. Pumilia contacting Louisiana One Call on three

separate occasions in regards to the subject excavation. Our Supreme Court in

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) outlines the framework for analyzing an

assumption of duty:

Under Louisiana law, one who does not owe a duty to act may assume
such a duty by acting. Frank L. Maraist & Thomas C. Galligan,
Louisiana Tort Law 5.07[6], 5-27 (Supp.2006). In Bujol v. Entergy
Services, Inc., [20]03–0492, p. 16 (La.5/25/04), 922 So.2d 1113,
1129, this Court explained this concept of assumption of duty and
stated an assumption of duty arises when the defendant (1) undertakes
to render services, (2) to another, (3) which the defendant should

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recognize as necessary for the protection of a third person. Bujol
involved the alleged assumption of the duty of a subsidiary to provide
a safe working environment by a parent corporation under the “Good
Samaritan Doctrine” as codified in Section 324A of the Restatement
(Second) of Torts. [20]03-0492 at pp. 14-15, 922 So.2d at 1128.

***

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. [20]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, [20]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, [20]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.

The Louisiana Underground Utilities and Facilities Damage Prevention Law,

is governed, in part, by La. R.S. 40:1749.11-1749.14 and its “goal is to protect the

public from damage resulting from the underground utilities being damaged.”

Thibodeaux v. Gulfgate Constr., LLC, 2017-494, p. 4 (La. App. 3 Cir. 11/22/17),

234 So.3d 89, 93 (quoting Weatherly v. Fonseca & Assocs., L.L.C., 2010-495, p. 2

(La. App. 3 Cir. 10/6/10), 48 So.3d 394, 395-96, writ denied, 10-2497 (La. 1/7/11),

52 So.3d 887). “It requires excavators to ‘ascertain the location of underground

facilities by calling the notification center, known as ‘Louisiana One Call,’ at least

forty-eight but not more than 120 hours prior to excavation.’” Id., 2017-494, p. 4,

234 So.3d at 93 (quoting Bellsouth Telecomms., Inc. v. Eustis Eng’g Co., Inc.,

2007-865, pp. 2-3 (La. App. 4 Cir. 12/19/07), 974 So.2d 749, 750).

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In this present matter, Mr. Baham asserts that Malone Electrical assumed the

duty to notify Louisiana One Call at least forty-eight hours before the excavation

began because Malone Electrical previously contacted Louisiana One Call on three

occasions. Malone Electrical concedes that Mr. Pumilia contacted Louisiana One

Call three times in August 2014 to schedule an appointment to identify any

potential underground utility conflicts at the proposed pole locations.

La. R.S. 40:1749.13(B)(1) provides in relevant part:

[P]rior to any excavation or demolition, each excavator or demolisher
shall serve telephonic or electronic notice of the intent to excavate or
demolish to the regional notification center or centers serving the area
in which the proposed excavation or demolition is to take place.

Here, Malone Electrical was hired to install light poles and signs. Malone

Electrical then retained J. Star as a subcontractor to conduct the excavation for the

installation. The record provides that Malone Electrical was provided general

locations where the poles were to be installed by Ubisense. In return, Malone

Electrical found specific locations for Ubisense and then requested the approval of

the locations from RTA and Ubisense. Upon confirmation from Ubisense, Malone

Electrical contacted Louisiana One Call to confirm that the desired locations were

probable.

Louisiana jurisprudence has recognized that general communications about

safety matters and inspections does not amount to assumption of duty. See Hebert,

2006-2001, pp. 9-10, 974 So.2d at 643; see also Louisiana Citizens Prop. Ins.

Corp. v. LAA Shoring, LLC, 2016-1136, p. 10 (La. App. 4 Cir. 6/14/17), 223 So.3d

17, 25 (The Court held that attempting to verify safety information or ensuring

adherence to safety standards does not equate with undertaking a duty).

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Accordingly, we do not find that Malone Electrical assumed a duty as an

excavator by contacting Louisiana One Call. Accordingly, the trial court did not err

in finding that Malone Electrical did not assume the duty to notify Louisiana One

Call. We now discuss whether genuine issues of material fact remain as to Malone

Electrical’s liability for the actions or omissions of J. Star.

Summary Judgment

The primary focus of Malone Electrical’s motion for summary judgment

was that it did not owe a duty to Mr. Baham as it was not legally required to notify

Louisiana One Call, and it is statutorily immune pursuant to La. R.S.

40:1749.14(E)(1) because it and its subcontractor fully complied with all

requirements of Louisiana One Call.1 In opposition, Mr. Baham contends that as a

vendor, Malone Electrical is liable for the performance insufficiencies of its

subcontractor, J. Star. Mr. Baham further argues that Malone Electrical voluntarily

and gratuitously assumed the duty mandated by the Louisiana Underground

Utilities and Facilities Damage Prevention Law by Mr. Pumilia contacting

Louisiana One Call on three separate occasions in regards to the subject

excavation. Mr. Baham argues that Mr. Pumilia’s notification to Louisiana One

Call did not fall in the statutorily required time periods.

1 La. R.S. 40:1749.14(E) provides “[a]n excavator or demolisher who has given notice and

otherwise complied with the provisions of this Part shall be immune from civil liability for
damages in the area of the proposed excavation or demolition caused by such excavation or
demolition to any owner or operator who:
(a) Was required by the provisions of this Part to become a member, participate
in, or share the cost of a regional notification center, and failed to do so.

(b) Failed to mark or provide information as required by the provisions of this
Part.

(2) The immunity provided by this Subsection shall not apply to civil liability for
damages caused by the negligence of the excavator or demolisher.

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Duty Risk

“Louisiana courts use a duty-risk analysis in negligence cases to determine

whether liability exists under the facts of a particular case.” Thibodeaux, 2017-494,

pp. 4-5, 234 So.3d at 93 (quoting Cormier v. Albear, 99-1206, p. 6 (La. App. 3 Cir.

2/2/00), 758 So.2d 250, 254). To succeed in his negligence claim, Mr. Baham must

prove under the duty/risk analysis five elements: (1) defendant’s duty of care to

him; (2) the defendant’s breach of duty; (3) defendant’s substandard conduct was a

cause-in-fact of the plaintiff’s injuries; (4) legal causation (scope of duty); and (5)

damages caused by the breach of duty. James v. Ernest N. Morial New Orleans

Exhibition Hall Auth., 2018-0198, p. 6 (La. App. 4 Cir. 12/26/18), 262 So.3d 958,

963 (internal citation omitted). “If a plaintiff fails to prove one of the five

elements, a defendant cannot be held liable.” Id., 2018-0198, p. 6, 262 So.3d at 963

(citing Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 8 (La. 3/10/06), 923

So.2d 627, 633).

“A threshold issue in any negligence action is whether the defendant owed

the plaintiff a duty.” James, 2018-0198, p. 7, 262 So.3d at 964 (quoting Ponceti v.

First Lake Properties, Inc., 2011-2711, p. 2 (La. 7/2/12), 93 So.3d 1251, 1252.

“Whether a duty is owed is a question of law.” Id. (quoting Lemann, 2005-1095, p.

8, 923 So.2d at 636).

“[G]enerally, a principal is not liable for the offenses committed by an

independent contractor while performing its contractual duties.” Id. at p. 7, 262

So.3d at 964 (quoting Thompson v. Winn-Dixie Montgomery, Inc., 2015-0477, p.

12 (La. 10/14/15), 181 So.3d 656, 665). This rule is subject to two exceptions: 1)

the principal may not escape liability for injuries resulting from the contractor

performing ultra-hazardous work, or 2) the principal cannot escape liability when it

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reserves the right to supervise or control the work of the independent contractor, or

gives express or implied authorization to an unsafe practice. Sasser v. Wintz, 2011-

2022, p. 9 (La. App. 1 Cir. 9/4/12), 102 So.3d 842, 848.

We note that as principal, Malone Electrical did not owe a duty to Mr.

Baham absent the showing that Mr. Baham’s injuries resulted from J. Star

performing ultra-hazardous work, or that Malone Electrical reserved the right to

supervise or control the work of J. Star.

Ultra-hazardous Work

“Ultra-hazardous” work “are those which can cause injury to others even

when conducted with the greatest prudence and care.” Sims v. Cefolia, 2004-343,

p. 8 (La. App. 5 Cir. 11/30/04), 890 So.2d 626, 631-32, writ denied, 2005-0005

(La. 3/11/05), 896 So.2d 73 (citing Vicknair v. Boh Bros. Const. Co., L.L.C., 2003-

1351 (La. App. 5 Cir. 3/30/04), 871 So.2d 514, 521). “The critical inquiry in

determining whether activity is [ultra-hazardous] or inherently dangerous is

whether it can be made safe when it is performed in a proper and workmanlike

manner.” Sims, 2004-343, p. 8, 890 So.2d at 632 (citing Buras v. Lirette, 97-1255

(La. App. 4 Cir. 12/23/97), 704 So.2d 980, 983) (The Sims court noted that

although there are some danger in all aspects of construction, the evidence

presented did not support the plaintiff’s contention that digging a tunnel/excavation

cannot be made safe when it is performed in a proper and workmanlike manner).

The record in this instant matter does not reflect that Mr. Baham’s injuries

were the result of an ultra-hazardous work activity or the existence of an inherently

dangerous condition. We find that excavation can be performed in a safe, proper,

and workmanlike manner; thus the activity of excavation is not ultra-hazardous in

nature.

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Independent Contractor

Next, we examine the relationship between Malone Electrical and J. Star in

determining Malone Electrical’s liability. The following factors are considered in

determining whether an independent contractor relationship exist:

1. A valid contract exists between the parties;

2. The work being done is of an independent nature such that the
contractor may employ non-exclusive means in accomplishing it;

3. The contract calls for specific piecework as a unit to be done
according to the contractor’s own methods, without being subject to
the control and direction of the principal, except as to the result of the
services to be rendered;

4. There is a specific price for the overall undertaking; and

5. The duration of the work is for a specific time and not subject to
termination or discontinuance at the will of either side without a
corresponding liability for its breach.

Sasser, 2011-2022, p. 9, 102 So.3d at 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).

Specifically, in determining whether someone is an independent contractor,

one must look at his degree of control over the work. “While the principal has the

ability to oversee the results of the contractor’s work, the principal in no way

influences the manner in which the contractor does the work.” Id. at p. 9, 102

So.3d at 848. 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.” Id.

In the instant case, Malone Electrical offered as an exhibit, in support of its

motion for summary judgment, the Louisiana One Call System Ticket Number

140443966, which was requested by J. Star on October 7, 2014 and identified that

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the work that was to be conducted was an installation of electric light poles for

Malone Electrical. Malone Electrical also offered the deposition testimony of Mr.

Baham. Mr. Baham testified that he went to the location to cut the water service.

Mr. Baham further testified that the location was already marked, which identified

where gas, cable, and electrical lines were located.

In opposition to the summary judgment, Mr. Baham offered emails between

Mr. Pumilia and an Ubisense representative as exhibits, in which Mr. Pumilia

provided that he contacted Louisiana One Call three times in August 2014. Mr.

Baham also offered the deposition testimony of Willie Starling, the project

manager of J. Star. Mr. Starling testified that he communicated with Mr. Pumilia

regarding the project. Mr. Starling attested that J. Star and Malone Electrical did

not discuss who would be responsible for doing the 811 locate. Mr. Starling agreed

that he relied on Malone Electrical and RTA to determine where the work should

be done and whether there was anything underground in particular spots.

Malone Electrical cannot be held liable for the work performed by the

subcontractor, J. Star, in the absence of proof that the work performed was

intrinsically or inherently dangerous, or that Malone Electrical reserved the right to

supervise or control the work or gave express or implied authorization for an

unsafe practice. See Sasser, 2011-2022, pp. 9-10, 102 So.3d at 849. Mr. Baham did

not put forth any evidence to meet these requirements. 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 take place is

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

the alleged negligence of an independent contractor.

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Failure to prove any of the elements of the duty/risk analysis results in a

determination of no liability. James, 2018-0198, p. 6, 262 So.3d at 963 (internal

citation omitted). To prevail in his negligence claim against Malone Electrical, Mr.

Baham bore the burden of establishing that Malone Electrical was at fault for

causing his injury, using duty/risk analysis. In opposing the motion for summary

judgment, Mr. Baham was required to demonstrate that he could establish essential

elements of his claim at trial. See Gutierrez v. Baldridge, 2010-1528 (La. App. 3

Cir. 5/11/11), 65 So.3d 251.

The record is devoid of evidence to establish that Mr. Baham’s injuries

resulted from ultra-hazardous work activity or the existence of an inherently

dangerous condition at the location, of which Malone Electrical should have given

warning. Further, Mr. Baham failed to show that Malone Electrical exercised

operational control over J. Star’s work. While J. Star’s employee, Mr. Starling

agreed that he relied on Malone Electrical and RTA to determine where the work

should be done and whether there was anything underground in particular spots,

this does not constitute operational control. “A principal is entitled to maintain

supervisory control over a project done by an independent contractor to ensure that

it complies with the contract.” McDaniel v. R.J.’s Transp., L.L.C., 53,667, pp. 10-

11 (La. App. 2 Cir. 1/13/21), 310 So.3d 760, 766 (citing Nippa v. Chevron, USA,

99-2953 (La. App. 4 Cir. 11/15/00), 774 So. 2d 310, 314, writ denied, 2000-3420

(La. 2/9/01), 785 So. 2d 823). Suggestions or instructions to an independent

contractor does not equate to control over the methods or details of a contractor’s

work. Klein v. Cisco-Eagle, Inc., 37,398, pp. 10-11 (La. App. 2 Cir. 9/24/03), 855

So.2d 844, 851.

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In consideration of Mr. Baham’s failure to carry his burden of showing

factual support, we find that the trial court did not err in granting summary

judgment in favor of Malone Electrical and dismissing Mr. Baham’s claims against

Malone Electrical with prejudice

CONCLUSION

In light of our finding that Malone Electrical did not assume a duty as

excavator, and that Mr. Baham failed to carry his burden of showing factual

support, we affirm the May 31, 2022 judgment granting summary judgment in

favor of Malone Electrical and dismissing Mr. Baham’s claims against Malone

Electrical with prejudice.

AFFIRMED

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