Kevin C. Trahan, Et Ux. v. the Bayou Companies, LLC, Etc.

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-168

KEVIN C. TRAHAN AND CHRISTINE TRAHAN

VERSUS

THE BAYOU COMPANIES, LLC, D/B/A BAYOU PIPE COATING

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 112511
HONORABLE JOHN E. CONERY, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and David E. Chatelain*,
Judges.

AFFIRMED.

Chatelain, J., dissents and assigns written reasons.

Edward Milligan
P.O. Box 90282
Lafayette, LA 70509
Counsel for Plaintiff-Appellant:
Kevin C. Trahan

Michael W. Adley
P.O. Drawer 51769
Lafayette, LA 70505
Counsel for Defendant-Appellee:
The Bayou Companies, L.L.C.

*
1 Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
2 Supreme Court as Judge Pro Tempore.

PAINTER, Judge.

Plaintiff, Kevin Trahan, appeals the trial court’s judgment dismissing his action

against Defendant, The Bayou Companies, L.L.C. (Bayou), pursuant to Defendant’s

motion for summary judgment. For the following reasons, the judgment of the trial

court is affirmed.

FACTS

At the time of the accident, Plaintiff was an independent contractor. He had

an independent contractor agreement with Louisiana Transportation, Inc. (LTI). LTI

located jobs for Plaintiff in exchange for thirty-three percent of the payment for the

job.

On August 26, 2007, LTI notified Plaintiff of a trucking job the next day

hauling three joints of pipe from Bayou in New Iberia, Louisiana to a pipeline project

in Hackberry, Louisiana. To haul the pipe, Plaintiff went to LTI and picked up a

forty-eight foot long by one hundred one inch wide trailer with an aluminum bed

interspersed with wooden beams. He arrived at the Bayou yard at approximately

11:45 a.m. He got to the loading area at about noon, and the three joints of pipe, forty

to forty-five feet long and forty-two inches in diameter each, were loaded on his

truck.

A Bayou truck foreman asked him to move his truck away from the loading

dock before the load was strapped down. Plaintiff protested the move because his

trailer was on uneven ground, and he was afraid the pipe would roll. The pipe did not

move when he moved the truck, and Plaintiff makes no claim that the pipe was

improperly loaded. He moved his trailer to the front of the yard and began to strap

the pipe down. No one was available to help him because the noon lunch whistle had

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blown. While he was trying to strap the pipe down, the weather became bad, and the

straps blew off the pipe when he threw them across. He claims that Bayou’s loading

site was muddy and that his boots became muddy as a result. However, he does not

claim that Bayou should have provided an area free of mud for him to strap down his

load. He climbed onto the trailer to secure the straps. The record indicates that he

could have gone to the front office to ask for help or that he could have waited until

after the lunch hour to get help. He stated that he made the decision to strap the load

by himself and that doing so is part of being your own boss. His next memory is of

regaining consciousness on the ground next to his trailer, apparently having fallen off

the trailer.

Plaintiff sued Bayou for damages incurred in the fall from the trailer, alleging

that his fall was caused by the negligence of Bayou’s truck foreman in:

A.) Failing to properly train, instruct, and/or prepare its employees
on the proper and safe loading procedures;

B.) Failing to adhere to the proper and safe loading procedures in the
industry;

C.) Failing to provide assistance and properly completing the loading
procedure and process.

Bayou answered and later filed a motion for summary judgment, attaching in

support thereof a statement of uncontested fact and Plaintiff’s deposition. Plaintiff

opposed the motion with his own statement of uncontested material facts and his own

deposition. The trial court granted the motion stating: “I do not think a duty was

owed under these circumstances and there are no facts that would indicate that a duty

was owed.” Plaintiff appeals.

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DISCUSSION

Summary Judgment

It is well settled that:

We review this matter de novo. Reynolds v. Select
Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.
Accordingly, we must determine, using the same criteria
applied by the trial court, whether any genuine issue of
material fact exists and whether the mover is entitled to
judgment as a matter of law. La.Code Civ.P. art. 966(B)
and (C). The initial burden of proof is with the mover to
show that no genuine issue of material fact exists.

Simien v. Med. Protective Co., 08-1185, p. 4 (La.App. 3 Cir. 6/3/09), 11 So.3d

1206, 1209, writ denied, 09-1488 (La.10/2/09), 18 So.3d 117.

Furthermore, La.Code Civ.P. art. 966 provides, in pertinent part, that:

B. The motion for summary judgment and supporting affidavits
shall be served at least fifteen days before the time specified for
the hearing. For good cause, the court shall give the adverse
party additional time to file a response, including opposing
affidavits or depositions. The adverse party may serve opposing
affidavits, and if such opposing affidavits are served, the
opposing affidavits and any memorandum in support thereof shall
be served pursuant to Article 1313 at least eight days prior to the
date of the hearing unless the Rules for Louisiana District Courts
provide to the contrary. The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to material fact, and that mover
is entitled to judgment as a matter of law.

Thus, the standard of review requires this court to look at “the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits” to determine whether there is a genuine
issue of material fact. MacFadden v. Ochsner Clinic Found., 08-91
(La.App. 5 Cir. 10/28/08), 998 So.2d 161.

Guillory v. Chapman, 09-1005, pp. 2-3 (La.App. 3 Cir. 5/12/10), 38 So.2d. 573, 575.

3

Bayou’s Duty

This case turns on the question of whether Bayou owed a duty to Plaintiff.

A duty has been defined as “an obligation, to which the law will
give recognition and effect, to conform to a particular standard of
conduct toward another.” Morris v. Orleans Parish School Bd., 553
So.2d 427, 429 (La.1989). The imposition of a duty depends on a
case-by-case analysis. Gresham v. Davenport, 537 So.2d 1144, 1147
(La.1989); Laiche v. Kohen, 621 So.2d 1162, 1163 (La.App. 1
Cir.1993). Duty is a question of law. The inquiry is whether the
plaintiff has any law--statutory, jurisprudential, or arising from general
principles of fault--to support his claim. Griffin v. Danos and Curole
Marine Contractors, Inc., 94-1789, p. 6 (La.App. 1 Cir. 5/5/95), 655
So.2d 525, 528, writ denied, 95-1383 (La.9/15/95), 660 So.2d 451.

Everett v. State Farm Fire & Cas. Ins. Co., 09-1699, p. 11 (La.App. 1 Cir. 3/26/10),

37 So.3d. 456, 464.

“In deciding whether to impose a duty in a particular case, the court must

make a policy decision in light of the unique facts and circumstances presented.”

Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 8 (La. 3/10/06), 923 So.2d 627,

633.

Nothing in the record indicates that strapping the load was the duty of the pipe

supplier. We find nothing in the law, statutory or jurisprudential, which would

support the conclusion that Bayou owes a duty of care which is intended to prevent

this harm from occurring in this manner.

Accordingly, we find no error in the trial court’s decision to grant Bayou’s

motion for summary judgment.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to the Plaintiff-Appellant.

AFFIRMED.

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5

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-168

KEVIN C. TRAHAN, ET AL.

VERSUS

THE BAYOU COMPANIES, LLC, D/B/A BAYOU PIPE COATING

CHATELAIN, J., dissenting.

I respectfully dissent from the majority decision. Unlike the trial court and

majority, which restrict the duty question to the issue of whether the defendant had

a duty to assist strapping the load, I find that the defendant owed a broader duty to

allow the plaintiff to strap down the pipe joints in a safe manner. In my view, the

question is not simply whether the defendant should have provided workers to assist

the plaintiff. Rather, the question is whether the defendant should have forced the

plaintiff to move from the loading dock, with its attendant handrails and walkways,

to secure his load, and required him to complete the strapping process where those

aids did not exist. On this point, I find genuine issues of material fact.

In his deposition submitted in opposition to the defendant’s motion for

summary judgment, the plaintiff stated:

They put us on the side of these racks [at the loading area]. There is
[sic] stairwells on them and there is [sic] handrails. . . . We pull up along
there when they load us. That way if we do need to get up there we can
be along this (indicating). Okay. You can get your trailer about this far
(indicating) from . . . that walkway. Real nice setup. And I know they
didn’t have that there [i.e., at the front of the yard away from the loading
dock]. . . . And if they would have this wouldn’t have happened.

1

Clearly, the defendant alone had the authority to decide where the load would be

strapped down and what structures in the yard could be used. Accordingly, I would

find The Bayou Companies, LLC, owed a broader duty to provide the plaintiff with

a reasonably safe opportunity to load before leaving the defendant’s yard. Whether

or not the defendant breached that duty is a question for another day. Therefore, I

would reverse the summary judgment and remand this matter to the trial court for

further proceedings.

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