Johnathan Shields v. McInnis Brothers Construction, Inc. and Trio Electric Company, Inc. and Trio Electric Company of Louisiana, LLC

Judgment rendered March 3, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,581-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

JOHNATHAN SHIELDS Plaintiff-Appellant

versus

McINNIS BROTHERS Defendant-Appellee
CONSTRUCTION, INC. AND
TRIO ELECTRIC COMPANY,
INC. AND TRIO ELECTRIC
COMPANY OF LOUISIANA,
LLC

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 602341

Honorable Craig Marcotte, Judge

*****

LYNN ESTES, JR. Counsel for Appellant

PETTIETTE, ARMAND, DUNKELMAN, Counsel for Appellee,
WOODLEY, BYRD & CROMWELL, L.L.P. McInnis Brothers
By: Donald Armand, Jr. Construction, Inc.
Marshall Louis Perkins

COOK, YANCEY, KING & GALLOWAY Counsel for Appellee,
By: Jason B. Nichols H&W Demolition, Inc.
James Ashby Davis

DAVENPORT, FILES & KELLY, L.L.P. Counsel for Appellee,
By: Mike C. Sanders Trio Electric Company

SHERRON PHAE DOUGLAS Counsel for Intervenor/
Assistant City Attorney Appellee, City of
Shreveport

LUNN, IRION, SALLEY, CARLISLE Counsel for Appellee,
& GARDNER Yor-Wic Construction
By: James A. Mijalis Company, Inc.

*****

Before GARRETT, BLEICH (Pro Tempore),
and BODDIE (Ad Hoc), JJ.

GARRETT, J.

In this personal injury suit, the plaintiffs, Johnathan Shields and

Fuleasha Shields, appeal from the trial court grant of summary judgment in

favor of all the defendants, McInnis Brothers Construction, Inc.

(“McInnis”); Trio Electric Company, Inc. and Trio Electric Company of

Louisiana, LLC (“Trio”); Yor-Wic Construction Company, Inc. (“Yor-

Wic”); and H&W Demolition, Inc. (“H&W”). For the following reasons, we

affirm the trial court judgment.

FACTS

Johnathan Shields was employed by the City of Shreveport (“City”) as

an operator at the Lucas Wastewater Treatment Plant (“the Plant”). The

facility was undergoing extensive renovations. The roofs and most of the

walls of two buildings which housed digester sludge pumps had been

demolished. Scaffolding had been erected over the pumps and their

switches to protect them during the demolition process. Shields claimed

that, at 3 a.m. on August 9, 2016, he touched the switch to Digester Pump

(“DP”) #2, in order to shut the pump off, and received an electrical shock.

There were no witnesses to the alleged incident.

In July 2017, Shields filed suit against McInnis and Trio, alleging that

the City contracted with McInnis for renovation of the Plant and McInnis

subcontracted all electrical work to Trio. Shields claimed he received an

“electrocution” injury and the defendants were liable for failure to follow

proper engineering and electrical engineering standards; to properly

maintain electrical systems; to install equipment properly; to properly

ground electrical equipment; to notice and observe improper grounding and

the lack thereof; to inspect, notify, and warn of defects, errors, and

deficiencies; and other acts of negligence to be proven at trial. He claimed

to have permanent and disabling medical problems as a result of the incident

and sought damages.

The petition was amended to add Shields’s wife, Fuleasha, who

asserted a loss of consortium claim. The plaintiffs also added as defendants

Yor-Wic and H&W. McInnis subcontracted a large portion of the work to

Yor-Wic, and Yor-Wic subcontracted the demolition work to H&W.

After extensive discovery, all the defendants filed separate motions

for summary judgment. As explained below, voluminous attachments were

filed with the motions.1

McInnis argued that none of the contractors owed a duty to Shields.

The contract with the City did not require any work on the switch for DP #2,

and no work was done on it by any contractor prior to Shields’s complaint.

McInnis further claimed it did not owe a duty to Shields because it had

subcontracted all work in that area to Yor-Wic. McInnis asserted that, as a

contractor, it was immune from liability under La. R.S. 9:2771, because it

performed all work in accordance with the plans and specifications furnished

by the City. The statute grants immunity to a contractor for destruction,

deterioration, or defect in work if he follows the plans and specifications

furnished to him, which he did not make or cause to be made, when the

destruction, deterioration, or defect is due to fault or insufficiency of the

plans or specifications. The company maintained that the plaintiffs could

not sustain their burden of proof that McInnis breached any duty that created

a hazardous condition or caused injury. McInnis argued that Shields had no

1
The five-volume record from the trial court contains more than 900 pages.
2

personal knowledge to support his claims of negligence and that he could

not prove that an electrical shock actually occurred. McInnis attached to its

motion copies of the contracts between the parties, and excerpts from the

depositions of Shields; Carlos Ferguson, a supervisor at the Plant; Mary

Williams, the Certified Chief Supervisor at the Plant; Robert Horne, Jr., on

behalf of McInnis; Ryan Wicker, on behalf of Yor-Wic; Bailon Moore, on

behalf of H&W; and Joey Young, representing Trio.

Yor-Wic’s motion urged that it did not owe a duty to Shields, did not

violate any duty to him, and was entitled to immunity under La. R.S. 9:2771.

Yor-Wic pointed out that it did not do any electrical work at the Plant. It

attached excerpts of the depositions of Wicker, Horne, Moore, and Young.

Trio’s motion also asserted that it did not owe a duty to Shields, did

not breach any duty owed, and was entitled to immunity under La. R.S.

9:2771. It attached the affidavit of its employee, Robert Wade, along with

the depositions of Young, Wicker, and Horne.

H&W’s motion argued that there was no evidence it was at fault in

this matter. H&W did not assert immunity under La. R.S 9:2771. It

attached the depositions of Wicker, Moore, Horne, Young, and excerpts

from the depositions of Shields, Ferguson, and Williams.

The plaintiffs filed an opposition to the motions and attached some

documents discussed below. The plaintiffs asserted that a contractor is not

entitled to immunity under La. R.S. 9:2771, regarding damage to third

parties, unless he had no justifiable reason to believe that adherence to the

plans and specifications would create a hazardous condition. The plaintiffs

contended there was no evidence that the plans were followed. They urged

that the demolition of structures surrounded by water and electricity created
3

a hazardous condition. The plaintiffs also claimed that the immunity

provided by La. R.S. 9:2771 was limited by La. R.S. 9:2773 and La. R.S.

9:2775.

The defendants filed replies to the plaintiffs’ opposition arguing that

the documents submitted by the plaintiffs were unsworn and unverified and

not in compliance with the listing in La. C.C.P. art. 966 of documents that

may be considered on a motion for summary judgment.

A hearing on the motions was held on August 5, 2019. It was clear

from the arguments that the trial court had conducted an exhaustive review

of the record. The plaintiffs argued that the electrical shock was caused by a

break in the metal conduit to DP #2, which was patched together “at some

point” with plastic pipe. The plaintiffs admitted they did not know when

this occurred or who did it. The trial court noted that the plaintiffs had no

evidence to show that any of the defendants breached any duties owed to the

plaintiffs or were negligent in any way. Because there were no genuine

issues of material fact, the trial court ruled that all the defendants were

entitled to summary judgment on the facts, irrespective of La. R.S. 9:2771.

On August 22, 2019, a written judgment was rendered granting summary

judgment in favor of McInnis, Trio, Yor-Wic and H&W, dismissing the

claims of the plaintiffs and the City.2 The plaintiffs appealed.

MOTION FOR SUMMARY JUDGMENT

On appeal, the plaintiffs argue that the documentary evidence they

submitted with their opposition to the motions for summary judgment

In the trial court, the City filed a petition of intervention to recover workers’
2

compensation benefits paid to Shields. The City did not appeal from the grant of
summary judgment in favor of all defendants.
4

contradicts the deposition evidence submitted by the defendants and creates

a genuine issue of material fact, making the grant of summary judgment

inappropriate. This argument is without merit.

Legal Principles

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the district court’s consideration of

whether summary judgment is appropriate.3 Peironnet v. Matador Res. Co.,

12-2292 (La. 6/28/13), 144 So. 3d 791; Succession of Robinson, 52,718 (La.

App. 2 Cir. 6/26/19), 277 So. 3d 454, writ denied, 2019-01195 (La.

10/15/19), 280 So. 3d 613.

The motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed

for by a litigant. Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So. 3d 1002.

The procedure is favored and shall be construed to secure the just, speedy,

and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). 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); Succession of Robinson, supra.

A fact is material if it potentially ensures or precludes recovery,

affects a litigant’s ultimate success, or determines the outcome of the legal

dispute. A genuine issue of material fact is one as to which reasonable

persons could disagree; if reasonable persons could reach only one

3
In their appellate brief, the plaintiffs contended that the standard of review was
manifest error. During oral arguments, the plaintiffs acknowledged this was erroneous
and that the appropriate standard of review is de novo.
5

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

appropriate. Maggio v. Parker, 2017-1112 (La. 6/27/18), 250 So. 3d 874;

Jackson v. City of New Orleans, 2012-2742 (La. 1/28/14), 144 So. 3d 876,

cert. denied, 574 U.S. 869, 135 S. Ct. 197, 190 L. Ed. 2d 130 (2014);

Saldana v. Larue Trucking, LLC, 52,589 (La. App. 2 Cir. 4/10/19), 268 So.

3d 430, writ denied, 2019-00994 (La. 10/1/19), 280 So. 3d 159.

In determining whether an issue is genuine, a court should not

consider the merits, make credibility determinations, evaluate testimony, or

weigh evidence. Chanler v. Jamestown Ins. Co., 51,320 (La. App. 2 Cir.

5/17/17), 223 So. 3d 614, writ denied, 2017-01251 (La. 10/27/17), 228 So.

3d 1230; Marioneaux v. Marioneaux, 52,212 (La. App. 2 Cir. 8/15/18), 254

So. 3d 13.

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); Doerle Food Servs., L.L.C. v. River Valley Foods,

L.L.C., 52,601 (La. App. 2 Cir. 5/22/19), 273 So. 3d 656, writ denied, 2019-

01188 (La. 10/15/19), 280 So. 3d 602; Collins v. Hill, 52,457 (La. App. 2

Cir. 2/27/19), 265 So. 3d 1202.

6

Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the

matters stated therein. La. C.C.P. art. 967(A). When a motion for summary

judgment is made and supported as provided above, an adverse party may

not rest on the mere allegations or denials of his pleading, but his response,

by affidavits or as otherwise provided above, must set forth specific facts

showing that there is a genuine issue for trial. If he does not so respond,

summary judgment, if appropriate, shall be rendered against him. La. C.C.P.

art. 967(B); Bank of Am., N.A. v. Green, 52,044 (La. App. 2 Cir. 5/23/18),

249 So. 3d 219; Doerle Food Servs., L.L.C. v. River Valley Foods, L.L.C.,

supra.

Under Louisiana’s duty-risk analysis, a plaintiff in a tort suit must

prove five separate elements: (1) the defendant had a duty to conform his or

her conduct to a specific standard of care; (2) the defendant failed to

conform his or her conduct to the appropriate standard of care; (3) the

defendant’s substandard conduct was a cause-in-fact of the plaintiff’s

injuries; (4) the defendant’s substandard conduct was a legal cause of the

plaintiff’s injuries; and (5) actual damages. Christy v. McCalla, 11-0366

(La. 12/06/11), 79 So. 3d 293; Pinsonneault v. Merchants & Farmers Bank

& Trust Co., 2001-2217 (La. 4/03/02), 816 So. 2d 270; Caskey v. Merrick

Const. Co., Inc., 46,886 (La. App. 2 Cir. 3/14/12), 86 So. 3d 186, writ

denied, 2012-0847 (La. 6/1/12), 90 So. 3d 442.

Discussion

In determining whether summary judgment was properly granted in

this case, we have examined the voluminous documents filed in support of
7

and in opposition to the motions. In support of their motions, the defendants

offered excerpts of the depositions of Shields, Ferguson, and Williams, as

well as the depositions of Horne, Wicker, Young, and Moore. Trio also

offered the affidavit of one it its electricians, Robert Wade.

The plant has two separate buildings housing the four digester pumps.

DP #2 and DP #4 are in the north buildings and DP #1 and DP #3 are in the

south building.

Shields stated that, when the alleged incident occurred, he was

working alone and drove a golf cart to the location where the switch for DP

#2 was located in order to turn the pump off. He positioned the cart close to

the wall. He was wearing two pairs of gloves furnished by the City. The

first was a cloth glove next to the skin and the second had, at least, a rubber

or latex palm. When Shields touched the switch, he claimed that the switch

sparked and there was a flash. He lost consciousness and woke up on the

ground, with his head against the golf cart. When he tried to use his radio,

he realized his arm was hurt. He said that his entire right side was aching

and felt like it was on fire.

Shields drove the golf cart to the front and reported the incident to his

supervisor, Ferguson. He went into the locker room for the remainder of his

shift and has not worked in the area since the accident. He said, before this

incident, he never knew what it was to receive an electrical shock. He

claimed that, before the accident, “they had been working on those pumps

along with everything else.” After the accident, Williams told him that

“other parties” said the box where the switch was located was not grounded

correctly. He stated that, other than that, he had no information as to what

caused the shock. Shields was asked about the allegations of negligence in
8

his petition and what information he had to support those allegations. He

said the fact that he got shocked and what Williams told him were the only

facts he had to support his allegations. Shields said, “All I know is I got

electrocuted. Other than that, I can’t tell you who was working on what.”

Ferguson stated that Shields came to his office at 2:57 a.m. on the date

of the alleged incident and said that he got shocked when he turned DP #2

off. According to Ferguson, Shields did not say anything about being hurt at

that time. Ferguson said they did not have any discussions about needing to

check out the switch or not using it. There had been no prior reports of

employees getting shocked when touching the switch for DP #2.

Williams said that there had not been any previous reports of shock

incidents with the switch to DP #2 before Shields made his report. She was

asked if she received any information from anyone to explain why Shields

would have gotten shocked. She said, “Other than the water, rainwater

being in the pump, no.” She was asked whether anyone told her that the

switch was improperly grounded before the renovation, or at the time of the

of the renovation. She said, “Dawn Cook said something about the

grounding after the fact.” Williams said she did not reach any conclusion on

her own as to the cause of the alleged incident. She stated, “I’m not

electrical. I don’t know. I didn’t even try to come to a conclusion. I had an

employee that said he got hurt, and I talked to Dawn Cook and that’s what

she told me. And as far as I know, the problem was taken care of and that

was that.” Cook was apparently connected with CDM Smith, the company

managing the construction for the City. She was not deposed.

Moore, with H&W, outlined the work his company did to demolish

the buildings around the pumps. He stated that the work was carried out on
9

April 12-15, 2016. The company did not receive any complaints of damage

and the work was completed almost four months before Shields claimed he

was injured.

Horne, McInnis’s project manager for the job at the Plant, stated that

McInnis was hired to demolish, rebuild and expand the pump buildings and

to replace the four pumps. Scaffolding was placed around the pumps and

switches before demolition began and tarps were later placed over the

equipment when the City requested that. No work was originally required

on the switches for the pumps. The switches and pumps were rated to be

used outdoors in wet conditions. Horne was notified of this alleged incident

in a telephone call from Plant personnel on August 15, 2016. Trio looked at

the switch and was never able to reproduce the incident. McInnis was not

able to verify that a shock actually occurred. McInnis sent a letter to Yor-

Wic on September 19, 2016, which Horne termed a “CYA” letter, informing

Yor-Wic of the allegations about the switch for DP #2.4 Horne said that the

letter was not an indication that the incidents actually occurred. He had no

personal knowledge of the events recounted in the letter. He was merely

recounting things he was told, not things that he knew or witnessed. He

stated that the letter was not intended to be a summary of any investigation

4
The letter from Horne to Wicker, included as an exhibit with the plaintiffs’
opposition to the motions for summary judgment, stated in part:

Two incidents of City of Shreveport plant personnel being shocked
at Digester Pump #2 have occurred at the Lucas Wastewater Treatment
Plant. These events occurred on the weekend of 8/13/16-8/15/16 and the
evening of September 7, 2016. On 9/12/16 Rajbarath Panneerselvam
notified us via telephone call that the City of Shreveport will hold us
responsible for any claims that arise due to these incidents. The cause of
the first incident was determined to be broken conduit. This conduit was
broken during the demolition of the existing building. At the time of the
first shock the existing pump #2 was still in service. The demolition,
rebuild and replacement of the pumps and piping at the digesters is all part
of your scope of work.
10

made by McInnis. In fact, all information that he had prior to the letter

showed that no one had been able to reproduce an electrical shock on the

switch for DP #2.

Horne clarified the statement in the letter that the first incident was

determined to have been caused by a broken conduit, essentially stating that

the letter was wrong. He said that the broken conduit was in the south

building and had nothing to do with DP #2, which was in the north building.

He had no knowledge of any damage to the conduit in the north building.

He also stated that the damage to the conduit in the south building occurred

in September 2016, after this alleged incident, and the conduit was

connected to a sump pump, not a digester pump.

Ryan Wicker, a project manager with Yor-Wic, stated that McInnis

was the general contractor for the renovation of the Plant and subcontracted

a large portion of the work to Yor-Wic. Yor-Wic did the work above

ground, which largely involved replacing the pumps. McInnis was

responsible for work done in a tunnel under the plant. According to their

contract, no work on the pump switches was included in the scope of Yor-

Wic’s work. Wicker stated that the pumps and switches were designed to be

used outside in wet conditions. Yor-Wic’s work required the demolition of

the two buildings that housed the pumps. Pumps one and three were in the

south building and pumps two and four were in the north building. Yor-Wic

was notified by McInnis when the conduit in the south pump building was

damaged, but that did not affect DP #2. Yor-Wic subcontracted the

demolition to H&W, which completed the work in April 2016, four months

before Shields’s alleged incident. DP #2 was replaced on August 10, the day

after this alleged incident. The second incident where someone claimed to
11

have been shocked was found to be a complete fabrication and was not

reproducible.

Wade, Trio’s foreman for the job at the Plant, had been an electrician

for 50 years. He gave an affidavit stating that McInnis furnished Trio with

the plans and specifications for the work. Trio was not required to inspect

all existing wiring in the Plant and did not do any work on the switch prior

to the alleged incident. In changing out DP #2, which occurred after this

alleged incident, it was observed that the wiring for the pump ran through a

different conduit than the wiring for the switch. Even though the wiring for

DP #2 was switched out on August 10, 2016, the same conditions of the

switch existed on the date of the alleged incident as existed on August 15,

2016, when Wade examined the switch for an electrical problem. He found

that the switch operated properly. He said the switch and the pump were

designed to be used outdoors in wet conditions. He was asked by the City to

add a ground wire to the switch. Prior to the addition of the ground wire, the

switch was grounded through a mechanical ground, which was acceptable

when the pump was originally installed. He said there was no break in the

conduit which would have interrupted the ground. He used a voltmeter to

test the switch and did not find a short or voltage back-feed. Pursuant to a

change order requested by the City, Trio installed ground rods for the

pumps.

Young, a vice-president with Trio, said the company disconnected the

electricity for the existing pumps and reconnected it for the new pumps. The

original scope of the work did not include any work to the switch for DP #2.

No work of any kind was done on the switch prior to August 9, 2016. The

switch was rated to be weather resistant and could be used outside in wet
12

conditions. There was no need to cover the switch after the roof and walls

of the surrounding building were demolished. By the time Young saw the

switch, Wade had put a new ground wire on it. This work was done, not

because it was necessary, but because it was requested by the City. Young

noted that Wade was told by Plant personnel that when they opened the

switch box, there was water in it. When Wade opened it, it was dry. Wade

tested the switch and could not replicate the problem which Shields claimed

existed.

Young said that when employees of his company first looked at the

switch, it was grounded in accordance with the requirements in effect when

it was originally installed. He said that, on a lot of older projects, the

conduit system was used as a ground and would create a continuous ground

path back to some ground source, whether it be the pump in dirt or back to

the main breaker.

Young noted that the company was informed that a second shock

incident occurred, but did not know when that happened. He heard that the

man who made the second complaint of being shocked was informed that a

ground wire had been installed on the switch and there was no way he could

have received a shock. Young understood that, at that point, the man

recanted.

After the alleged incident involving Shields, Trio was asked by the

City to change out the entire switch for DP #2, and it did so. Young was

shown a picture of broken conduit, but it could not be determined whether it

was connected to DP #2. Young was asked about whether the conduit for

DP #2 was pieced together with plastic pipe. Young said that he never saw a

piece of plastic connecting the two metal pieces. He said he would have
13

noticed that when he went to the plant to investigate the switch. The

question at the deposition was the first time he had heard of any allegation

that plastic pipe was used to patch the conduit.

Young was shown the gloves worn by Shields. Young said that the

rubber on the gloves would have prevented a shock. He noted that the

button on the switch was plastic, which also would have prevented a shock.

He said if anything did happen, Shields would have felt nothing more than a

tingle. He stated that the conditions present at the scene could not

intermittently cause a shock. According to Young, water is a conductor of

electricity, but a poor one. Water in the switch box could not have created

enough voltage for a person to have gotten a shock. To receive a significant

shock, a loose wire would be required, causing a direct short.

Young was questioned about a series of emails and correspondence

from McInnis. One email from McInnis addressed a number of deficiencies

at the Plant. In response, the ground wires on the pump switches were added

pursuant to a change order submitted by the City. They were not an original

part of the scope of the work. Young was asked about another email from

McInnis on September 7, 2016, discussing damage to the pump conduit in

front of the south digester pump building, which was some distance away

and not connected to DP #2. The incident in this case involved DP #2,

which was located in the north digester pump building. McInnis sent an

email on September 8, 2016, informing Young that another City employee

had made a separate complaint of being shocked.

In opposition to the motions for summary judgment, the plaintiffs

submitted several documents which were discussed in the depositions relied

14

upon by the plaintiffs.5 The first document was an email from Horne, on

behalf of McInnis, dated September 7, 2016, regarding damage to a conduit

at the south building, even though it was established that this damage had no

connection with DP #2, which was located in the north building. The email

was addressed to Rudy G. Zelmer, a construction manager for CDM Smith,

the company managing the construction for the City. Young and Wicker

received copies of the email. The plaintiffs also attached the construction

accident report dated August 18, 2016, which discussed Shields’s report of

injury, the report from another employee stating he received a shock from

the switch on DP #1 (apparently an error in the report), the allegations that

the switches were not properly weatherproofed and had been penetrated by

rainwater, and the allegations that the switches were not properly grounded

with a ground wire.6 The plaintiffs attached another email from Horne to

5
In their reply briefs, McInnis and Yor-Wic objected, saying that the plaintiffs’
documents were not admissible under La. C.C.P. art. 966, which specifies that the only
documents that may be filed in support of or in opposition to the motion are pleadings,
memoranda, affidavits, depositions, answers to interrogatories, certified medical records,
written stipulations, and admissions. The court may consider any documents to which no
objection is made. Any objection to a document shall be raised in a timely filed
opposition or reply memorandum. The court shall consider all objections prior to
rendering judgment. The court shall specifically state for the record or in writing which
documents, if any, it held to be inadmissible or declined to consider. La. C.C.P. art.
966(D)(2). The trial court did not rule on the objections before rendering judgment. The
objections were discussed in passing at the hearing, but McInnis noted that the documents
were “in the record anyway.” The trial court considered the documents in rendering
judgment in favor of the defendants. Even though the admissibility of the documents was
discussed in the appellate briefs of Yor-Wic and McInnis, neither party appealed or
answered the appeal. Therefore, the issue of whether the documents were properly
considered has not been raised for review. However, as the trial court concluded, even if
the documents are considered, the defendants are still entitled to summary judgment.
6
This document was on the letterhead of CDM Smith, and was prepared by
“Dawn Cook, IMS Engineers.” Relevant portions of this document provide:

COS [City of Shreveport] Employee Johnathan Shields (Operator)
stated he was in the process of turning Digester Sludge Pump #2 (DSP#2)
off on 08/09/16 at 3 am when he sustained an electrical shock to his right
hand; DSP#2 had existing pump and electrical wiring/conduits/switches at
that time; COS Operations personnel reported seeing sparks/flame in area
of DSP#1 conduits on 08/14/16; COS Employee David Shaw (EIT)
reported being shocked (minor) by power button (switch) for DSP#1 on
15

Young, dated September 8, 2016, which discussed the allegations that

another employee was shocked on the switch for DP #2. The plaintiffs then

noted H&W’s answers to interrogatories stating that the company finished

its demolition work in April 2016. The plaintiffs attached the letter dated

September 19, 2016, from Horne to Yor-Wic, quoted above in footnote 4,

noting the two alleged incidents of shock injuries and stating that “The cause

of the first incident [involving the plaintiff] was determined to be broken

conduit. This conduit was broken during the demolition of the existing

building.” The plaintiffs also attached a copy of the agenda for the weekly

scheduling meeting, dated September 9, 2016, on McInnis’s letterhead. The

first item on the agenda was the “Digester Pump Electrical Issues.” There

are handwritten notes on the document stating “will suggest add perm

ground to digester pumps,” as well as a notation about adding grounds to

“pumps 1, 3, & 4.”

According to the plaintiffs, these documents showed that more than

one person was shocked; the ground connection was damaged by one of the

four contractors while removing concrete under DP #2 and its switch; the

conduit on DP #2 had a conduit replacement made of plastic pipe, which is

Monday morning 08/15/16 during investigation; DSP#1 had been replaced
with new pump at this time but existing electrical
wiring/conduits/switches were still in place; due to demo of pump room
ceiling and walls, the existing electrical conduits/wiring/switches (being
used temporarily) were not adequately weatherproofed which allowed
rainwater penetration; Trio Electrician also reported that no ground wire
was used for grounding of pump power switches back into main circuit
ground and that metal conduit was intended to function as mechanical
ground, but because conduits on DSP#1 & 3 were broken, and DSP#2
conduit contained a section of plastic conduit, they did not have a
continuous ground; Trio Electricians replaced/repaired conduits, added
ground wire, and weatherproofed as needed for DSP#1-3[.]

The defendants contend that this document was an exhibit to the Yor-Wic
deposition and contained a first sheet, omitted by the plaintiffs, which showed that
the document was a draft of the accident report.

16

not a conductor of electricity, and therefore the DP #2 switch was not

grounded. The plaintiffs admitted they did not know who made the repair

with plastic pipe. They concluded that summary judgment should be denied

and “trial should ensue to find the negligent culprit who left this dangerous

situation for the innocent and uninformed Plaintiff to encounter.”

In the trial court and on appeal, the plaintiffs argue that Shields

received an electrical shock and injuries from contact with the switch for DP

#2. They contend that Shields’s alleged injury occurred because damage to

the conduit connected to the pump, which had been repaired with plastic

pipe, caused the switch to not be grounded. Although the plaintiffs urge that

the documents submitted with their opposition to the motions for summary

judgment conflict with the depositions submitted by the defendants, creating

genuine issues of material fact as to the liability of the defendants, an

examination of this record does not support that claim.

The documents submitted by the plaintiffs were considered and

discussed in the depositions submitted by the defendants. Read together, the

depositions explained away all statements in the plaintiffs’ documents that

possibly could be construed so as to create a genuine issue of material fact as

to liability on the part of any of the defendants for anything Shields may

have experienced when he touched the switch for DP #2 on the date of the

alleged incident.

There is no showing that any of the defendants owed a duty to the

plaintiffs or breached any duty. In support of their motions, the defendants

showed that they were not required to examine the wiring for the switch to

DP #2, and did not do any work on the switch prior to the alleged shock

incident. They also showed that none of the contractors damaged the
17

conduit to DP #2. The alleged problem with the switch could not be

replicated. The defendants also established that, because the pump and

switch were designed to be used outdoors in wet conditions, because the

switch was plastic, and because Shields was wearing two pairs of gloves at

the time he claims he was shocked, it was highly improbable that the

incident actually occurred.

Because the defendants provided ample support for their motions for

summary judgment, the plaintiffs could not rest upon the mere allegations of

their pleadings, but were required to produce factual support sufficient to

establish the existence of a genuine issue of material fact or that the

defendants were not entitled to summary judgment as a matter of law.

The plaintiffs simply failed to carry that burden. The plaintiffs did not

provide the depositions or affidavits of the “other parties” who said that the

pump was not properly grounded. Williams said in her deposition that

“Dawn Cook said something about the grounding after the fact.” However,

Cook was not deposed and did not supply an affidavit. Although the

plaintiffs contended there was damage to the conduit for DP #2 which

resulted in Shields’s shock injury, they did not establish when the pipe was

damaged, by whom, or who installed a piece of plastic pipe. The plaintiffs

failed to establish that this alleged damage was actually on the conduit

connected to DP #2. Based upon this record, there is no showing that the

plaintiffs could carry their burden of proof at trial to show any negligence on

the part of any of the defendants. The grant of summary judgment in favor

of all the defendants was correct.

Because of its decision that the plaintiffs failed to establish a genuine

issue of material fact on the merits of the case, the trial court did not
18

consider whether the immunity of La. R.S. 9:2771 applied to McInnis, Yor-

Wic, and Trio, who argued its applicability.7 We also find that consideration

of the question is not necessary here. Although not asserted in an

assignment of error, the plaintiffs argue in their brief that La. R.S. 9:2771

immunity does not apply here because the statute is limited by La. R.S.

9:2773 and La. R.S. 9:2775. The plaintiffs’ argument is simply incorrect. A

reading of these statutes shows that the provisions are not interrelated and

have no applicability to the immunity statute.8

7
The statute states:

No contractor, including but not limited to a residential building
contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction
or deterioration of or defects in any work constructed, or under
construction, by him if he constructed, or is constructing, the work
according to plans or specifications furnished to him which he did not
make or cause to be made and if the destruction, deterioration, or defect
was due to any fault or insufficiency of the plans or specifications. This
provision shall apply regardless of whether the destruction, deterioration,
or defect occurs or becomes evident prior to or after delivery of the work
to the owner or prior to or after acceptance of the work by the owner. The
provisions of this Section shall not be subject to waiver by the contractor.
8
La. R.S. 23:2773 provides:

A. It is the public policy of the state that the responsibility which
may be imposed on an agent, contractor, or representative by reason of the
responsibility of proprietors under Article 667 of the Louisiana Civil Code
shall be limited solely to the obligation of such agent, contractor, or
representative to act as the surety of such proprietor in the event the
proprietor is held to be responsible to his neighbor for damage caused him
and resulting from the work of such agent, contractor, or representative,
and only in the event the proprietor is unable to satisfy any claim arising
out of such damage. The agent, contractor, or representative who is
responsible for damages, as limited by this Section, shall have a right of
action against the proprietor for any damages, costs, loss or expense which
he may suffer in his capacity as the surety of the proprietor.

B. Nothing in this Section shall be construed to relieve a contractor
of any liability which he may incur as a result of his own negligence or the
improper performance of the work performed under the construction
contract.

C. The provisions of this Section shall apply to all construction
agreements entered into after the effective date hereof and may be waived
by the contractor.

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CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court

granting summary judgment in favor of the defendants, McInnis Brothers

Construction, Inc.; Trio Electric Company, Inc. and Trio Electric Company

of Louisiana, LLC; Yor-Wic Construction Company, Inc.; and H&W

Demolition, Inc., dismissing all claims of the plaintiffs, Johnathan Shields

and Fuleasha Shields. Costs in this court are assessed to the plaintiffs.

AFFIRMED.

La. R.S. 23:2775 states, in pertinent part:

A. Any provision in a contract for the sale of equipment or
machinery to be incorporated in a construction project, as hereinafter
defined, which excludes liability for consequential damages is null and
void.

B. (1) For the purposes of this Section the term “construction
project” shall mean any residential or commercial project for the
improvement, construction, modification, or repair of a fixed land based
structure, or commercial project.

(2) The term “construction project” shall not include industrial or
agricultural projects including but not limited to:
....

(j) Public sewerage, water treatment, or pumping facility.

C. “Consequential damages” are defined as loss of revenue,
production, profits, use, rental income, or cost of replacement facilities,
equipment and/or product, as may be applicable.

20