Charles D. Isgitt v. State Farm Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-204

CHARLES D. ISGITT

VERSUS

STATE FARM INS. CO., ET AL.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 85,295, DIV. C
HONORABLE JAMES RICHARD MITCHELL, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

AFFIRMED.

Steven D. Crews
Corkern, Crews & Guillet, L.L.C.
P. O. Box 1036
Natchitoches, LA 71458-1036
Telephone: (318) 352-2302
COUNSEL FOR:
Defendants/Appellees - State Farm Ins. Co. and Leroy D. Cooley

S. Christie Smith, IV
SmithBush, LLP
P. O. Drawer 1528
Leesville, LA 71496-1528
Telephone: (337) 239-2244
COUNSEL FOR:
Plaintiff/Appellant - Charles D. Isgitt

THIBODEAUX, Chief Judge.

Charles Isgitt, an employee of Lewing Construction, suffered a severe

leg injury when he fell from a platform at a construction site on Leroy Cooley’s

property. Mr. Isgitt alleges that the trial court erred in granting summary judgment

to the defendants, Leroy Cooley and his insurer, State Farm Mutual and Casualty

Company.

Specifically, Mr. Isgitt asserts that the trial court erred by ruling that:

(1) Mr. Cooley could not be held liable for the contractor’s, Keith Lewing’s,

negligence, because Mr. Lewing was an independent contractor; and (2) Mr.

Cooley did not act negligently.

I.

ISSUE

We must decide whether the trial court erred in granting summary

judgment in favor of Mr. Cooley.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Cooley and his wife entered into a construction contract with

Keith Lewing, d/b/a Lewing Construction, to build a new home. Mr. Cooley

testified that he knew Mr. Lewing to be an experienced, reputable builder.

Mr. Cooley gave Mr. Lewing permission to use a John Deere tractor

which he owned. Mr. Cooley testified that, given Mr. Lewing’s vast experience

operating tractors, backhoes, bulldozers, and other types of construction

equipment, he did not feel it was necessary to provide Mr. Lewing with

instructions regarding the use of the tractor. In the weeks leading up to the

accident, Mr. Lewing and his crew used the tractor on numerous occasions.

On the date of the accident, Mr. Lewing was working on the soffits of

the home. Feeling that he did not have sufficient scaffolding to reach the necessary

height, Mr. Lewing and two other employees, including Mr. Isgitt, decided to place

a ladder on the tractor platform as a make-shift scaffold to reach the highest point

of the house. Once the scaffolding was constructed, Mr. Isgitt climbed onto the

platform. Mr. Lewing, who was operating the tractor, lifted the front-end loader to

a height sufficient for Mr. Isgitt to reach the soffits. While Mr. Isgitt was on the

ladder, Mr. Lewing attempted to leave the tractor’s cab to assist in gathering

additional supplies for Mr. Isgitt. As he exited the tractor, Mr. Lewing’s tool belt

hit the tractor’s lever, and the loader tilted. Mr. Isgitt fell to the ground and

suffered severe injuries to his leg, which ultimately resulted in its partial

amputation.

Following the accident, Mr. Isgitt filed a workers’ compensation

claim against Mr. Lewing. Subsequently, Mr. Isgitt filed the present action,

alleging that the comparative negligence of Mr. Lewing and Mr. Cooley led to Mr.

Isgitt’s injuries. Mr. Cooley and State Farm filed exceptions of no right/no cause

of action and motions for summary judgment asserting that Mr. Cooley owed no

duty to Mr. Isgitt to prevent Mr. Isgitt’s employer, Mr. Lewing, from using the

tractor in the manner that ultimately resulted in Mr. Isgitt’s injuries. The trial court

entered judgment in favor of the defendants, and Mr. Isgitt now appeals.

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III.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate, i.e., whether a genuine issue of material fact exists and whether the

mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty

Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. If

the mover will not bear the burden of proof at trial on the matter, then he must only

present evidence showing a lack of factual support for one or more elements

essential to the non-mover’s case. La.Code Civ.P. art. 966(C)(2); Simien v. Med.

Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-

1488 (La. 10/2/09), 18 So.3d 117. Once the mover has made a prima facie case

that the motion should be granted, the non-mover must then present evidence

sufficient to show a genuine issue of material fact. Id. If the non-mover fails to

present some evidence that he might be able to meet his burden of proof at trial, the

motion should be granted. Id.

Liability of Mr. Cooley as a Property Owner

Under Louisiana law, a principal is generally not liable for the

offenses committed by an independent contractor while performing its contractual

duties. Loftus v. Kuyper, 46,961 (La.App. 2 Cir. 3/14/12), 87 So.3d 963. Liability

of the principal to an employee of the independent contractor for injuries sustained

by the employee while performing the contract is limited by the application of this

principle. This rule is subject to two exceptions. First, the principal may not avoid

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liability for injuries resulting from an ultra-hazardous activity by hiring out the

work to an independent contractor. The second exception arises when the principal

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

gives express or implied authorization to an unsafe practice. Ewell v. Petro

Processors of La., Inc., 364 So.2d 604 (La.App. 1 Cir. 1978), writ denied, 366

So.2d 575 (La.1979).

An activity is considered ultra-hazardous if three conditions are

present: the activity is related to land or some other immovable; the activity causes

the injury and the defendant is directly engaged in the injury causing activity; and

the activity can cause the injury even when conducted with great prudence and

care. Davis v. Ins. Co. of North America, 94-698 (La.App. 1 Cir. 3/3/95), 652

So.2d 531, writ denied, 95-840 (La. 5/5/95), 654 So.2d 334. The parties do not

contend that no safe method existed through which the job could have been

performed. Thus, the ultra-hazardous exception to non-liability of the principal

does not apply in this case.

The first part of the second exception arises when the principal

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

Here, Mr. Cooley contracted with Mr. Lewing to build his new home. Mr. Cooley

had no contractual relationship with Mr. Isgitt, and he did not supervise or exercise

any control over Mr. Isgitt or his employer. Indeed, Mr. Cooley was not present at

the job site on the day of the accident. We conclude that Mr. Cooley does not fall

into this part of the second exception.

The second part of the second exception arises when the principal

gives express or implied authorization to an unsafe practice. Mr. Isgitt alleges that

Mr. Cooley was aware of, and consented to, the loader being used as a work

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platform as it was on the day of the accident. The evidence does not support his

claim. Indeed, Mr. Isgitt testified that the date of the accident was the first day that

the tractor had been used in such a manner, and Mr. Cooley was not present at the

site on the day of the accident. Moreover, Mr. Isgitt testified that, to his

knowledge, Mr. Cooley did not assent to using the tractor as a platform for a

ladder. Thus, the evidence supports Mr. Cooley’s claim that the day of the

accident was the first time that the tractor had been used in such an unsafe manner.

We find that Mr. Cooley is not liable for the actions of his independent contractor.

Independent Negligence

As an alternative theory of recovery, Mr. Isgitt alleges that Mr.

Cooley acted negligently by: (1) failing to provide the tractor’s owner’s manual to

Mr. Lewing and (2) consenting to the tractor’s unsafe use. We find no merit in Mr.

Isgitt’s allegations.

(1) The Owner’s Manual

Mr. Isgitt alleges that Mr. Cooley was negligent in not providing the

owner’s manual to Mr. Lewing. Mr. Isgitt’s argument is akin to the failure to warn

arguments that often arise in product liability law. We find, however, that it has no

place here. The evidence overwhelmingly suggests that even if Mr. Cooley had

personally handed the owner’s manual to Mr. Lewing, Mr. Lewing would have

disregarded it. Mr. Lewing identified himself as a sophisticated user of tractors,

and he owned a similar tractor to the one at issue in this case. Indeed, Mr. Lewing

testified that, “There’s nothing [Mr. Cooley] could have told me that I didn’t

already know [about the tractor].” Moreover, Mr. Lewing testified that he knew

the safety features of a John Deere tractor, and he knew that the owner’s manual

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likely stated that an operator should not lift persons in the loader. Despite this

knowledge, and without Mr. Cooley’s direction, Mr. Lewing used the tractor’s

loader as a work platform.

In product liability cases where the sufficiency of warning is an issue,

the supreme court has held that no duty exists to warn of an inherent danger that

should be well-known to a sophisticated user of the product. Hines v. Remington

Arms. Co., Inc., 94-455 (La. 12/8/94), 648 So.2d 331. In owners’ manual cases,

where the manufacturer fails to give an adequate warning, a presumption arises

that the user would have read and heeded such warnings. Gauthier v. McDonough

Power Equip., Inc., 608 So.2d 1086 (La. App. 3 Cir. 1992). That presumption is

rebutted, however, if the manufacturer produces evidence to show that the warning

or instruction would have been futile. Id. “An essential element of a cause of

action based on failure to adequately warn of a product’s danger is that there must

be a reasonable relationship between the omission of the manufacturer and the

injury.” Id. at 1089. In Gauthier, the owner of a riding lawn mower that injured

the child operating it, testified that he would not have observed any warning placed

on the mower itself or altered his course of action. A panel of this court agreed

with the jury’s finding that the manufacturer did not breach its duty to warn of the

danger of a child’s operation of the mower.

We find that Gauthier is instructive. It is clear from the testimony

that no amount of warning from Mr. Cooley, or anyone else, would have prevented

Mr. Lewing from using the tractor as he did. Mr. Cooley was nowhere near the

site of the accident when it happened, and we find that he was not negligent in

failing to warn Mr. Lewing of the potential danger that ultimately resulted.

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(2) Express or Implied Consent

As discussed previously, nothing in the record suggests that Mr.

Cooley consented to the tractor being used as a work platform with a ladder

leaning against the house. Mr. Cooley was not present at the scene on the day of

the accident, and Mr. Isgitt testified that Mr. Cooley was not involved in the

decision to put the ladder on the loader platform or to use the tractor as a work

platform. Thus, we find that Mr. Cooley did not negligently give consent to use

the tractor in such an unsafe manner.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial

court. Costs of this appeal are assessed against Charles Isgitt.

AFFIRMED.

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