Virgil McCoy v. Town of Rosepine

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-898

VIRGIL MCCOY

VERSUS

TOWN OF ROSEPINE, ET AL.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 87,849, DIV. A
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks,
Jimmie C. Peters, Marc T. Amy, and James T. Genovese, Judges.

REVERSED AND REMANDED.

Amy, J., dissents and assigns reasons.

Genovese, J., dissents for the reasons assigned by Judge Amy and also assigns
additional reasons.

Jason R. Bell
Cox, Cox, Filo, Camel & Wilson, L.L.C.
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/APPELLANT:
Virgil McCoy

Bradley J. Gadel
Bradley J. Gadel, APLC
728 Jackson Street
Alexandria, LA 71301
(318) 448-4406
COUNSEL FOR INTERVENOR/APPELLANT:
Cleco Corporation

Robert A. Mahtook, Jr.
Mahtook & LaFleur, LLC
P. O. Box 3089
Lafayette, LA 70502-3089
(337) 266-2189
COUNSEL FOR DEFENDANTS/APPELLEES:
Rosepine Seniors Apartments Partnership, a Louisiana Partnership in
Commendam
MAC-RE, LLC
Scottsdale Insurance Company

Gregory A. Grefer
Maricle & Associates
#1 Sanctuary Boulevard, Suite 202
Mandeville, LA 70471
(985) 727-5021
COUNSEL FOR DEFENDANT/APPELLEE:
Town of Rosepine

PETERS, J.

The plaintiff, Virgil McCoy, and the intervenor, Cleco Corporation, appeal

the trial court’s grant of two summary judgments dismissing their claims against
1
the defendants, Rosepine Seniors Apartments Partnership, MAC-RE, LLC,

Scottsdale Insurance Company, and the Town of Rosepine. For the following

reasons, we reverse the trial court judgment and remand this matter to the trial

court for further proceedings.

DISCUSSION OF THE RECORD

On July 2, 2012, Mr. McCoy, an employee of Cleco Corporation (Cleco),

sustained an injury to his left foot and ankle while working on an electric meter

located on the side of a building comprising part of an apartment complex known

as Rosepine Apartments 1 in Rosepine, Vernon Parish, Louisiana. His injury

occurred when he stepped into an uncovered water meter, located in close

proximity to the building where he was working, and fell backwards into shrubs

growing along the building.

In his original and supplemental pleadings, Mr. McCoy named a number of

defendants whom he claimed were liable to him for the injuries. Additionally,

Cleco intervened in Mr. McCoy’s suit to recover the workers’ compensation

benefits it had paid on his behalf as a result of the accident. Subsequent pleadings

by Mr. McCoy and Cleco resulted in the dismissal of all defendants except the

Town of Rosepine; Rosepine Seniors Apartments Partnership; MAC-RE, LLC; and

Scottsville Insurance Company (hereinafter collectively referred to as “the

defendants”).

1
Rosepine Seniors Apartments Partnership is described in the record as a Louisiana
Partnership in Commendam.

This appeal arises because the trial court granted the defendants’ motions for

summary judgment dismissing both Mr. McCoy’s and Cleco’s claims against them.

The trial court granted the defendants relief based on their argument that the

uncovered water meter was an open and obvious hazard presenting no

unreasonable risk of harm. Both Mr. McCoy and Cleco appeal this judgment.

In his appeal, Mr. McCoy raises one assignment of error:

The Trial Court erred in granting Defendants’ motion for
summary judgment where there were genuine issues of material fact
concerning whether the uncovered water meters constituted an
unreasonable risk of harm.

Cleco raises four assignments of error in its appeal:

1. The trial judge erred in granted [sic] defendant’s [sic] motion
for summary judgment, and otherwise holding that the
uncovered water meter constituted an open and obvious hazard,
as opposed an unreasonably dangerous condition, and
dismissing intervenor’s lawsuit.

2. The trial judge erred as a matter of law in finding that there was
no genuine issue as to any material fact that plaintiff and
intervenor could not prove all elements of their case at trial on
the merits and otherwise finding that defendants had no duty as
a matter of law to protect plaintiff and pedestrians from the
conditions present.

3. The trial judge erred as a matter of law by not holding that
reasonable persons could disagree about whether Rosepine
Apartments’ action in the water meter hole uncovered
constituted leaving an unreasonable risk of harm, and therefore
should have been deemed a genuine issue of material fact.

4. The trial judge erred in finding that genuine issues of material
fact do indeed exist that may or may not affect the respective
degree of fault of the parties in applying comparative
negligence, commensurate with a proper duty risk analysis as
dictated by the Louisiana Supreme Court.

OPINION

Louisiana Code of Civil Procedure Article 966 has been amended

significantly over the past three years, and the rules applicable to summary

2

judgment procedure depend on when a summary judgment might be filed and

considered. In this case, three of the four defendants (Rosepine Seniors

Apartments Partnership; MAC-RE, LLC; and Scottsville Insurance Company) filed

their motion for summary judgment on September 29, 2014, and the Town of

Rosepine filed its motion for summary judgment on November 14, 2014. The trial

court heard the motions on November 24, 2014, and executed a written judgment

the next day. We will consider the summary judgments based on the version of
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La.Code Civ.P. art. 966 in effect at the time of the hearing.

Despite the recent amendments to La.Code Civ.P. art. 966, the appellate

standard of review with regard to summary judgment decisions has remained the

same. “Appellate review of the granting of a motion for summary judgment is de

novo, using the identical criteria that govern the trial court’s consideration of

whether summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-

2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755. Furthermore, nothing in the recent

amendments changed the legislative assertion that summary judgment procedure is

“favored” and is “designed to secure the just, speedy, and inexpensive

determination of every action, except those disallowed by Article 969.” La.Code

Civ.P. art. 966(A)(2).

Summary judgment, itself, shall be rendered:

[I]f the pleadings, depositions, answers to interrogatories, and
admissions, together with the affidavits, if any, admitted for purposes
of the motion for summary judgment, show that there is no genuine
issue as to material fact, and that mover is entitled to judgment as a
matter of law.

La.Code Civ.P. art. 966(B)(2) (emphasis added).

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Louisiana Code of Civil Procedure Article 966 had last been amended before the filing
and hearings of these motions by 2014 La. Acts, No. 187, § 1, effective August 1, 2014.
3

Pertinent to this appeal is the question of who bears the burden of proof.

Pursuant to La.Code Civ.P. art. 966(C)(2), the burden remains with the movant:

However, if the movant will not bear the burden of proof at trial on
the matter that is before the court on the motion for summary
judgment, the movant’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 that there is an absence of
factual support for one or more elements essential to the adverse
party’s claim, action, or defense. Thereafter, if the adverse party fails
to produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial, there is no genuine
issue of material fact.

The underlying claim at issue in this matter arises from La.Civ.Code art.

2317, as modified by La.Civ.Code art. 2317.1. Louisiana Civil Code Article 2317

provides responsibility “for the damage occasioned by our own act,” as well as the

damage “caused by the act of persons for whom we are answerable, or of the

things which we have in our custody.” This responsibility is modified by the

articles that follow, including particularly La.Civ.Code art. 2317.1, which provides:

The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. Nothing in this Article shall
preclude the court from the application of the doctrine of res ipsa
loquitur in an appropriate case.

Thus, in order to prevail in a cause of action based on La.Civ.Code art.

2317.1, a plaintiff must prove: (1) that the defendant had custody of the thing; (2)

that it had a vice or defect that presented an unreasonable risk of harm; (3) that the

defendant knew or should have known of the vice or defect; (4) that the damage

could have been prevented by the exercise of reasonable care; and (5) that the

defendant failed to exercise this reasonable care. Riggs v. Opelousas Gen. Hosp.

Trust Auth., 08-591 (La.App. 3 Cir. 11/5/08), 997 So.2d 814.

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The second of the five elements is the only one at issue in this litigation.

The trial court found that the uncovered water meter did not present an

unreasonable risk of harm because it was an open and obvious hazard. Given that

factual conclusion, the trial court concluded that neither Mr. McCoy nor Cleco

could carry their burden on the second element of proof, and that the defendants

were entitled to relief as a matter of law.

The supreme court addressed the question of an open and obvious hazard in

Broussard v. State ex rel. Office of State Buildings, 12-1238, pp. 17-18 (La. 4/5/13),

113 So.3d 175, 188-89, and in doing so, stated the following:

To be sure, we have consistently echoed one central theme
throughout our open and obvious jurisprudence: If the complained-of
condition should be obvious to all, then it may not be unreasonably
dangerous. E.g., Pitre [v. La. Tech Univ.], 95-1466 at p. 11 [(La.
5/10/96)], 673 So.2d [585,] 591; Socorro [v. City of New Orleans],
579 So.2d [931,] 942 [(La.1991)]; Murray [v. Ramada Inns, Inc.], 521
So.2d [1123,] 1136 [(La.1988)]. Thus, in order to be open and
obvious, the risk of harm should be apparent to all who encounter the
dangerous condition. See, e.g., Pitre, 95-1466 at p. 11, 673 So.2d at
591-92 (light poles in the area where college students were sledding
were visible to everyone and thus open and obvious); Oster v. Dep’t.
of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La.1991)
(ditch on shoulder of road readily discernable from a considerable
distance and thus not unreasonably dangerous). Our “open and
obvious to all” principle is not a hollow maxim. Rather, it serves an
invaluable function, preventing concepts such as assumption of the
risk from infiltrating our jurisprudence. Over 25 years ago in Murray,
we recognized that defining a defendant’s initial duty in terms of a
plaintiff’s, versus everyone’s, knowledge of a dangerous condition
would preserve assumption of the risk as a defense and undermine
Louisiana’s pure comparative fault regime:

If accepted, defendants’ argument would inject the
assumption of risk doctrine into duty/risk analysis
“through the back door.” By that, we mean that the
argument attempts to define the defendant’s initial duty
in terms of the plaintiff’s actual knowledge, and thereby
seeks to achieve the same result which would be reached
if assumption of risk were retained as a defense, i.e., a
total bar to the plaintiff’s recovery. A defendant’s duty
should not turn on a particular plaintiff’s state of mind,

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but instead should be determined by the standard of care
which the defendant owes to all potential plaintiffs.

521 So.2d at 1136. In contrast, the “open and obvious to all” rule is
“sensible . . . and does not undermine the comparative fault regime by
allowing a plaintiff’s negligence to operate as a bar to recovery in a
case where the defendant’s conduct poses a risk of harm to the
hypothetical blameless plaintiff.” [Frank L. Maraist, H. Alston
Johnson III, Thomas C. Galligan, Jr., & William R. Corbett], LA.
L.REV. [Answering a Fool According to His Folly: Ruminations on
Comparative Fault Thirty Years On], 70 at 1130 [(2011)]. The open
and obvious inquiry thus focuses on the global knowledge of everyone
who encounters the defective thing or dangerous condition, not the
victim’s actual or potentially ascertainable knowledge. Simply put,
we would undermine our comparative fault principles if we allowed
the fact-finder to characterize a risk as open and obvious based solely
on the plaintiff’s awareness of that risk. The plaintiff’s knowledge or
awareness of the risk created by the defendant’s conduct should not
operate as a total bar to recovery in a case where the defendant would
otherwise be liable to the plaintiff. Murray, 521 So.2d at 1134.
Instead, comparative fault principles should apply, and the plaintiff’s
“awareness of the danger” is but one factor to consider when
assigning fault to all responsible parties under La. Civ.Code art. 2323.
Id. (citing Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967,
974 (La.1985)).

Rosepine Seniors Apartments Partnership, MAC-RE, LLC, and Scottsville

Insurance Company offered the following exhibits in support of their motion:

 Plaintiff’s Original Petition for Damages

 Plaintiff’s First Supplemental and Amending Petition for Damages

 Cleco’s Petition in Intervention

 Plaintiff’s Deposition with attachments of photographs of the accident
scene; an accident investigation report prepared by Cleco; and a Cleco
Termination Memorandum

In support of its motion for summary judgment, the Town of Rosepine offered

excerpts from Mr. McCoy’s deposition. Neither Mr. McCoy nor Cleco offered any

exhibits in opposition to the motions.

Mr. McCoy’s April 3, 2013 petition indicates that he suffered injuries when

he stepped into an uncovered water-meter hole and fell while working on an

6

electric meter at the Rosepine Apartments on July 2, 2012. His August 6, 2013

first supplemental and amending petition merely adds Scottsdale Insurance

Company, the insurer of Rosepine Seniors Apartments Partnership and/or MAC-

RE, L.L.C., as a defendant. Mr. McCoy’s May 1, 2014 second supplemental and
3
amending petition added Rosepine Apartments as a defendant. Cleco’s July 26,

2013 petition of intervention seeks to recover all workers’ compensation benefits

paid to Mr. McCoy as a result of his work related injury, which was caused by the

fault and/or negligence of the defendants named in Mr. McCoy’s suit.

Mr. McCoy testified in his deposition that he arrived at the Rosepine

Apartments at approximately 7:30 a.m. on July 2, 2012, to work on two electric

meters. According to Mr. McCoy, the meters were located at the rear of one of the

apartment buildings, to the right of an air conditioning unit. When he reached the

rear of the apartment building, the shrubs growing behind the building were so

thick adjacent to the air conditioner, that he could not access the electric meter by

passing between the air conditioner and the shrubs. Instead, he walked to the

corner of the building and worked his way between the building and the shrubbery

to reach the electric meters requiring service. He estimated the walking space

between the building and shrubbery to be twenty to twenty-four inches wide.

According to Mr. McCoy, one of the electric meters he was to service was

located in the top row of meters, approximately six feet above the foundation. He

was aware that water meters, having a surface measurement of approximately
4
eighteen by twelve inches, were located directly below the electric meters, and

that the interior foliage of the shrubbery extended over the water meters. He
3
Rosepine Apartments is described in the record as a Louisiana Partnership in
Commendam.
4
Mr. McCoy described the water meters as being oversized because in his experience, he
normally encountered water meters which were twelve inches by six or eight inches.
7

further acknowledged that he observed that the water meter directly below the
5
electric meter to be serviced was uncovered.

Mr. McCoy testified in his deposition that after positioning his body to the

right of the air conditioning unit and in front of the open water meter in a secure

manner, he reached up to begin working on the electric meter. While working on it,

his left foot slipped backwards into the water meter causing him to fall into the

shrubs. Mr. McCoy testified that although the thickness of the shrubs prevented

him from falling to the ground, his left heel slid approximately ten inches into the

bottom of the water meter, and he immediately felt pain in his left ankle.

Cleco’s July 11, 2012 accident investigation report states that Mr. McCoy

violated Cleco safety Rule 1.2-2. That rule provides that “[b]efore commencing

any work that may be hazardous, care shall be taken to establish a safe procedure”

and that “[e]mployees shall always place themselves in a safe and secure position”

while performing his or her duties. The report provides the following as a

summary of the accident itself:

After routing orders, employee entered apartment complex and
proceeded to reseal two meters. When he walked up to the location,
he positioned himself between the a/c unit and the shrubs. He noticed
that some of the water meters were not covered (see attached photos).
After positioning his foot at the edge of one of the water meters he
proceeded to reseal the meter. He stepped back and his foot slipped
into the water meter hole and he fell back against the shrubs.
Although he did not fall to the ground, he felt a sharp pain in his left
ankle.

The report concluded that Mr. McCoy caused the accident by failing to recognize

and identify the hazard caused by the uncovered water meters in his work location,

and that the accident could have been avoided by “simply cover[ing] the water

5
Mr. McCoy testified that he did not see a lid for the opened water meter, nor did he look
for one as he was working for the electric company and not the water company.
8

meters (with the covers that were on the ground) before proceeding [to] the reseal

[of] the meters.”

A July 26, 2012 Cleco memorandum from Kevin Murray, the manager of

Distribution Operations, to Marty Smith, Cleco’s General Manager for the

Northern District, served as an employment termination recommendation based on

the fact that the July 2, 2012 accident was Mr. McCoy’s eleventh career accident

with Cleco. The recommendation was approved through the Cleco chain of

command, and Mr. McCoy’s employment was terminated based on his accident

history.

In its November 25, 2014 ruling, the trial court concluded that the

defendants established in their motions for summary judgment that Mr. McCoy

was aware of the uncovered water meter and noted further that he “could have

avoided harm through the exercise of ordinary care.” Based on that factual finding,

the trial court concluded that the burden then shifted to Mr. McCoy and Cleco

pursuant to La.Code Civ.P. art. 966(C)(2) to “produce factual support sufficient to

establish that he will be able to satisfy his evidentiary burden of proof at trial” and

that they failed to do so. Thus, the trial court concluded that the uncovered water

meter did not create an unreasonable risk of harm to Mr. McCoy because its

condition was open and obvious to him.

We find no error in the trial court’s conclusion that Mr. McCoy was aware

of the uncovered water meter, as this fact is uncontested. However, this factual

finding relates to the apportionment of fault and not the question of liability. As

noted in Broussard, 113 So.3d 175, the question is not whether the defect was open

and obvious to Mr. McCoy, but whether it is open and obvious to all who might

encounter it. The supreme court in Broussard noted that “[t]he open and obvious

9

inquiry thus focuses on the global knowledge of everyone who encounters the

defective thing or dangerous condition, not the victim’s actual or potentially

ascertainable knowledge.” Id. at 188. Neither motion for summary judgment

offered any evidence to establish that the uncovered water meter would have been

open and obvious to all who might encounter it. In fact, based on the location of

the water meter against the building and the presence of the shrubs growing up and

over it, we would not find that the uncovered water meter would be visible to all

who might encounter it. Accordingly, we reverse the judgment of the trial court

granting summary judgment in favor of the defendants and dismissing the claims

of Mr. McCoy and Cleco.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment in favor of

Rosepine Seniors Apartments Partnership, MAC-RE, LLC, Scottsdale Insurance

Company, and the Town of Rosepine, which dismissed the claims of Virgil McCoy

and Cleco Corporation, and remand the matter to the trial court for further

proceedings. We assess all costs of this appeal to Rosepine Seniors Apartments

Partnership, MAC-RE, LLC, Scottsdale Insurance Company, and the Town of

Rosepine.

REVERSED AND REMANDED.

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NUMBER 15-898
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA

VIRGIL MCCOY

VERSUS
TOWN OF ROSEPINE, ET AL.

AMY, J., dissenting.

I respectfully dissent from the majority decision as I would affirm the

summary judgments entered in favor of the defendants. As noted by the majority,

the Louisiana Supreme Court has explained that “a defendant generally does not

have a duty to protect against that which is obvious and apparent. In order for an

alleged hazard to be considered obvious and apparent, . . . the hazard should be one

that is open and obvious to everyone who may potentially encounter it.” Bufkin v.

Felipe’s Louisiana, LLC, 14-0288, p. 7 (La. 10/15/14), 171 So.3d 851, 856. In this

case, I conclude that no genuine issues of material fact exist in this regard.

In support of their motions for summary judgment, the defendants submitted

the plaintiff’s deposition testimony in which he explained that he was aware of the

uncovered water meter and that, prior to his fall, he had positioned himself above

the exposed area “in a manner that [he] thought was secure[,]” yet his back heel

slipped into the area. He stated that he had “a pretty large foot” and that he had “a

13-foot boot, which is longer than 13. So that’s how I know it was a very large

meter.” The plaintiff estimated that the subject water meter was larger than his

foot, “oversized,” and approximately “18-by-12” inches. In describing the area, he

confirmed that the subject meter was situated in an area between a building and

shrubbery, along with other water and electric meters and an air conditioning unit.

When asked to estimate the “approximate distance between the building and the

edge of the shrubs,” the plaintiff responded: “Guessing, I’d say about 24 inches - -

20, 24 inches.” Additionally, the defendants further submitted photographic

evidence of the scene, which the plaintiff reviewed in his deposition. This

photographic evidence was also introduced by the defendants in support of the

motion for summary judgment.

Having reviewed these submissions, including the photographs of the scene,

I find that the trial court correctly entered summary judgment. In simple terms,

both the plaintiff testified to, and the photographs confirm, the presence of a visible

and open meter located in an area. Although the plaintiff explained that the area

was confined by the shrubs, there is no indication that the shrubbery obscured

visibility of the open meter or otherwise created a hazard. In opposition, the

plaintiff failed to come forward with any evidence demonstrating that the open

meter was not open and obvious to everyone who may potentially encounter it, just

as it admittedly was by the plaintiff in this case. Given the plaintiff’s failure to

present evidence that he would be able to meet his burden of proving a duty on the

part of the defendants, summary judgment was appropriate. See La.Code Civ.P.

art. 966(C)(2) (providing that “if the adverse party fails to produce factual support

sufficient to establish that he will be able to satisfy his evidentiary burden of proof

at trial, there is no genuine issue of material fact.”).

Accordingly, I would affirm the judgment under review.

2

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-898

VIRGIL MCCOY

VERSUS

TOWN OF ROSEPINE, ET AL.

GENOVESE, J., dissents for the reasons assigned by Judge Amy and also
assigns additional reasons:

Under La.Civ.Code art. 2317.1, at trial, Plaintiff has the burden of proving

that the thing (the uncovered water meter) presented an unreasonable risk of harm.

In its motions for summary judgment, Defendants have pointed out an absence of

factual support for this particular element. Because Plaintiff failed to put forth any

evidence that the thing constituted an unreasonable risk of harm, and because by

his own admission he was aware of the uncovered water meter in his work

location, Plaintiff failed to satisfy the requirements of La.Code Civ.P. art.

966(C)(2) by failing to produce the necessary factual support sufficient to establish

that he will be able to satisfy his evidentiary burden of proof at trial.

Therefore, I dissent from the majority opinion and would affirm the trial

court’s grant of the summary judgments in favor of Defendant.