John Thibodeaux and Amy Thibodeaux, Indiv. and O/B/O Emily Thibodeaux and Gabrielle Thibodeaux v. Gulfgate Construction, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-494

JOHN THIBODEAUX AND AMY THIBODEAUX,
INDIVIDUALLY AND ON BEHALF OF EMILY
THIBODEAUX AND GABRIELLE THIBODEAUX

VERSUS

GULFGATE CONSTRUCTION, LLC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2015-4167
HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

AFFIRMED.

Melvin A. Eiden
Rabalais & Hebert
701 Robley Drive, Suite 210
Lafayette, Louisiana 70503
(337) 981-0309
Counsel for Defendant/Appellant:
J. M. Drilling LLC

Max J. Cohen
Melanie Lockett
Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P.
701 Poydras Street, Suite 3600
New Orleans, Louisiana 70139-3600
(504) 581-2450
Counsel for Defendant/Appellee:
Water & Wastewater Utilities, Inc.

Janice M. Reeves
Maricle & Associates
III United Plaza, Suite 350
8545 United Plaza Boulevard
Baton Rouge, Louisiana 70809
(225) 924-9585
Counsel for Defendant/Appellee:
Gulfgate Construction, LLC

Max Michael Menard
Attorney at Law
200 Church Street
Post Office Box 1196
Youngsville, Louisiana 70592
(337) 857-6123
Counsel for Plaintiffs/Appellees:
John Thibodeaux
Amy Thibodeaux
Gabrielle Thibodeaux
Emily Thibodeaux

Edward Taulbee
Attorney at Law
Post Office Box 2038
Lafayette, Louisiana 70502-2038
(337) 269-5005
Counsel for Plaintiffs/Appellees:
John Thibodeaux
Amy Thibodeaux
Gabrielle Thibodeaux
Emily Thibodeaux

Pierre M. Legrand
Marshall G. Weaver
Legrand Law Firm
3939 North Causeway Boulevard, Suite 204
Metairie, Louisiana 70002
(504) 304-9499
Counsel for Intervenor/Appellee:
Bellsouth Telecommunications, LLC

KEATY, Judge.

Defendant/Appellant, J. M. Drilling LLC (J. M. Drilling), appeals the trial

court’s granting of a motion for summary judgment in favor of Defendant/Appellee,

Water & Wastewater Utilities, Inc. (Wastewater). For the following reasons, the

trial court’s judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

This negligence matter arose on June 9, 2015, when Plaintiff, John

Thibodeaux, injured his right leg while splicing fiber optic cable on behalf of his

employer, American Telephone & Telegraph (AT&T), at 114 Meadow Gate Drive

in the Sawgrass subdivision in Lafayette, Louisiana. Thibodeaux had to access

hand holes, which are rectangular, underground vaults where fiber optic cables

come together and are spliced. The two hand holes at issue were equipped with

covers that rested on top of the ground. They were located near a rectangular, pre-

cast slab which held an AT&T cabinet. On the day of his accident, Thibodeaux

lifted a hand hole cover and placed it by the AT&T cabinet when the ground

beneath him gave way, causing his right leg to fall into a hole, sustaining injury.

Prior to Thibodeaux’s accident, Gulfgate Construction, LLC (Gulfgate

Construction), and J. M. Drilling performed work on the property pursuant to

separate contracts with AT&T. Gulfgate Construction’s job, which was the F1 part

of the project, consisted of preparing a pre-cast slab, installing a cabinet on top of

the pre-cast slab, digging two hand holes, and feeding fiber optic cable into hand

hole number two. After Gulfgate Construction finished its job, J. M. Drilling

performed the F2 part of the project, which consisted of installing fiber optic cable

by accessing the hand holes and feeding the cable out to the rest of the subdivision.

It is alleged that during operations, Gulfgate Construction and/or J. M.

Drilling struck and damaged an underground sewer force main line. The main line

purportedly began leaking and caused a washout under the pre-cast slab upon

which the AT&T cabinet was situated, ultimately forming the hole into which

Thibodeaux fell. The main line, which ran from a sewer lift station on the property

to the street, belonged to Wastewater, the owner and operator of the lift station.

Gulfgate Construction repaired Wastewater’s broken main line after Thibodeaux’s

accident. Wastewater had not marked its main line prior to the commencement of

work performed by Gulfgate Construction and J. M. Drilling. The hand holes had

to be repositioned as a result of the existence of the underground main line.

On August 24, 2015, Thibodeaux and his wife, Amy, individually and on

behalf of their minor daughters, Gabrielle and Emily, filed suit against Gulfgate

Construction, Milton Water System, Inc., and Wastewater. Gulfgate Construction

is the subject of a separate appeal in this court in Docket Number 17-495. Milton

Water System, which has been dismissed, is not the subject of either appeal. On

October 8, 2015, Thibodeaux amended his lawsuit, adding J. M. Drilling as a

defendant.

On August 23, 2016, Wastewater filed a Motion for Summary Judgment. It

was granted for reasons cited in open court by the trial court following a hearing

which occurred on January 30, 2017. On that same day, the trial court signed a

written judgment dismissing Wastewater from the matter, based upon its finding

that “there is no genuine issue of material fact that [Wastewater] is not liable for

the damages sued upon.” J. M. Drilling appealed.

On appeal, J. M. Drilling alleges the following assignments of error:

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1. The trial court erred when it granted Wastewater’s Motion for
Summary Judgment since Wastewater failed to uphold its
statutory duty to mark its lines when notified by Louisiana One[]
Call when its underground facilities may be implicated.

2. The trial court erred in granting Wastewater’s Motion for
Summary Judgment as the question of whether the failure of
Wastewater to mark its lines was a concurrent, causal factor to
the injury suffered by Thibodeaux is a question of fact that the
jury should decide.

3. The trial court erred in granting Wastewater’s Motion for
Summary Judgment based in part on the status of Louisiana
One Call as a non-defendant.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo, using the same

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

is appropriate.” Greemon v. City of Bossier City, 10-2828, 11-39, p. 6 (La. 7/1/11),

65 So.3d 1263, 1267. A 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.Code Civ.P. art. 966(A)(3). “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.” La.Code Civ.P. art. 966(A)(4). “The burden of proof rests with the

mover.” La.Code Civ.P. art. 966(D)(1). If the mover will not bear the burden of

proof at trial on the matter at issue, however, his burden on the motion for

summary judgment “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.” Id. Specifically, “[t]he burden is on the adverse party

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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.” Id.

DISCUSSION

I. First Assignment of Error:

In its first assignment of error, J. M. Drilling contends the trial court erred

when it granted the Motion for Summary Judgment because Wastewater failed to

uphold its statutory duty under the Louisiana Underground Utilities and Facilities

Damage Prevention Law to mark its lines when notified by Louisiana One Call

when its underground facilities may be implicated.

The Louisiana Underground Utilities and Facilities Damage Prevention Law

(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.” Weatherly v. Fonseca & Assocs., L.L.C., 10-495, 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.” Bellsouth

Telecomms., Inc. v. Eustis Eng’g Co., Inc., 07-865, pp. 2-3 (La.App. 4 Cir.

12/19/07), 974 So.2d 749, 750. The parties in this matter refer to this request as a

“DOTTIE.” After Louisiana One Call receives the call, the “utility operators are

notified and given a ‘mark by’ date by which the utilities must mark the locations

of their underground cables, etc., so the excavator will not damage the

underground utilities.” Id.

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

whether liability exists under the facts of a particular case.” Cormier v. Albear, 99-

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1206, p. 6 (La.App. 3 Cir. 2/2/00), 758 So.2d 250, 254. Under this analysis, a

plaintiff is required to 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, 11-366, pp. 8-9 (La. 12/6/11), 79 So.3d 293, 299 (citing

Pinsonneault v. Merchs. & Farmers Bank & Trust Co., 01-2217, p. 6 (La. 4/3/02),

816 So.2d 270, 275-76). “The threshold issue in any negligence action is whether

the defendant owed the plaintiff a duty, and whether a duty is owed is a question of

law.” Hanks v. Energy Corp., 06-477, p. 21 (La. 12/18/06), 944 So.2d 564, 579.

“Whether the defendant breached that duty and whether that breach was a cause in

fact of plaintiff’s injuries are factual questions to be determined by the factfinder.”

Id. at 580.

In this case, our inquiry is whether Wastewater owed Thibodeaux a duty

under the Damage Prevention Law to mark its main line in conjunction with work

performed by J. M. Drilling on the property in question. On appeal, Wastewater

contends that it did not owe a duty to mark its main line prior to the

commencement of J. M. Drilling’s work because it was not notified by Louisiana

One Call regarding work to be performed on the property in question. In support,

Wastewater offered into evidence at the hearing the affidavit of its employee and

supervisor, Randy Savoy. Savoy explained that, prior to excavating land, a

contractor is required to obtain a DOTTIE, which requests the owners of

underground utilities to mark them so that they will not be damaged during the

excavation process. Savoy attested that Wastewater, as the owner of the

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underground main line, was never requested to mark its lines pursuant to any

DOTTIE requests prior to June 9, 2015, the date of Thibodeaux’s accident. Savoy

attested that Wastewater had not excavated or performed any work at the property

prior to August 31, 2015, the date Wastewater was served the petition herein.

On the other hand, J. M. Drilling contends that Wastewater received

notification from Louisiana One Call in connection with two DOTTIEs requested

by Gulfgate Construction regarding work that it was going to perform on the

property. At the hearing, J. M. Drilling offered into evidence two DOTTIEs, i.e.,

Louisiana One Call System Ticket Numbers 150016857 and 150047467, which

were requested by Gulfgate Construction on January 13, 2015 and February 3,

2015. These two DOTTIEs were for work that was to be performed on January 16,

2015 through February 5, 2015, and February 6, 2015 through February 26, 2015,

at the intersection of Meadow Gate Drive and Timber Bark Road. Both DOTTIEs

listed Wastewater under the section entitled “Members Notified.” J. M. Drilling

offered no evidence indicating that Wastewater actually received notification from

Louisiana One Call. Therefore, Wastewater’s argument regarding lack of notice,

supported by Savoy’s affidavit, remained undisputed at the hearing. We find no

error with the trial court’s finding in this regard.

J. M. Drilling also submitted into evidence three additional DOTTIEs, i.e.,

Louisiana One Call System Ticket Numbers 150049468, 150086745, and

1501225566, which were requested by J. M. Drilling on February 4, 2015,

March 13, 2015, and March 26, 2015, for work to be performed at the intersection

of Meadow Gate Drive and Timber Bark Road. The work was to occur from

February 9, 2015 through March 1, 2015, from March 6, 2015 through March 26,

2015, and from March 31, 2015 through April 20, 2015. Unlike the two DOTTIEs

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requested by Gulfgate Construction, Wastewater was not listed as a member to be

notified on the three DOTTIEs requested by J. M. Drilling. The trial court

recognized that a duty cannot be breached if the duty did not exist, by stating:

You can’t mark the line if you’re not notified to mark the line.
First you have to say, I’m somebody who needs to be notified. If I’m
notified I know I have to mark the line. If they did not receive any
notification, then how do they know to mark the line. They didn’t
know to mark the line, they didn’t breach that duty to mark the line
after being notified.

The trial court did not err in this regard.

Accordingly, J. M. Drilling’s first assignment of error is without merit.

II. Second Assignment of Error:

In its second assignment of error, J. M. Drilling contends the trial court erred

in granting Wastewater’s Motion for Summary Judgment as the question of

whether its failure to mark its lines was a concurrent, causal factor to the injury

suffered by Thibodeaux is a question of fact that the jury should decide.

In opposition, Wastewater contends that even if it breached any purported

duty, that breach failed to cause any damage because J. M. Drilling knew or should

have known of the underground main line even though it was unmarked. At trial,

Wastewater offered into evidence the deposition testimony of Kevin Elfring, J. M.

Drilling’s Supervisor/Project Manager. Elfring explained that J. M. Drilling, an

authorized dealer for AT&T, is a fiber optic communication company that provides

directional drilling and also buries communication wires. According to Elfring’s

testimony, his involvement with J. M. Drilling’s work on the property in February

2015 included organizing it, laying it out, and getting the equipment to the site.

Elfring explained that the project’s plans included a lift station and a manhole

cover, which meant that a main line was also present on the property. Elfring

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testified that protocol requires Louisiana One Call to be notified in order to have a

sewer line marked. He indicated that if it was unmarked despite Louisiana One

Call being notified, the next step would be to identify the owner of the lift station,

call them, and ask them to mark the line.

Elfring’s testimony is supported by the deposition testimony of Gulfgate

Construction employees, John Smith and Harold Broussard, submitted into

evidence at the hearing by Wastewater. Smith stated that the property at issue was

a utility lot, which means a contractor must be more cautious and more aware of

digging because of the existence of things buried undergound. He revealed the

existence of the lift station and manhole cover meant the existence of a sewer line.

Smith agreed that even if lines are not marked despite a DOTTIE request, any

person in the business should recognize that caution should be used. Smith further

recalled seeing a white, two-inch polyvinyl chloride (PVC) pipe as he was digging

a hole.

Broussard testified that the existence of a lift station on the property meant

that a sewer line likely existed underground and ran from the back of the fence to

the road. He stated that a person digging and excavating needed to use caution

because of the existence of lines running throughout the property. Broussard noted

his boss told him that “there was a pipe there, two-inch pipe, just to be careful.”

Wastewater also submitted the deposition testimony of Adam Romero,

another Gulfgate Construction employee. Romero testified that he worked with

Smith in January 2015 on the property. According to his testimony, Romero was

aware of the lift station, which meant there would be lines running from it to the

street. Romero agreed that anybody in the business would need to exercise caution

to prevent hitting underground pipes, regardless of whether they were marked or

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unmarked. Romero recalled digging the hand hole with Smith and discovering a

two-inch PVC pipe. According to Romero’s testimony, upon uncovering the pipe,

they called their supervisor, Kelly Vice.

The foregoing testimony and evidence shows that any purported breach by

Wastewater did not cause any damage to Thibodeaux because J. M. Drilling knew

or should have known of the underground main line even though it was unmarked.

The trial court did not err in this regard.

Accordingly, J. M. Drilling’s second assignment of error is without merit.

III. Third Assignment of Error:

In its third assignment of error, J. M. Drilling contends the trial court erred

in granting Wastewater’s Motion for Summary Judgment based, in part, on the

status of Louisiana One Call as a non-defendant. J. M. Drilling’s alleged error is

based upon the trial court’s statement at the hearing, as follows: “If Louisiana One

Call were also a defendant, then your motion for summary judgment should be

denied.”

In this case, a reading of the entire trial court transcript indicates that its

ultimate decision was not based upon the trial court’s one-sentence statement made

at the beginning, and prior to hearing all of the evidence. Rather, it was made at

the end of hearing all of the evidence and testimony. The trial court dismissed

Wastewater based upon Thibodeaux and/or J. M. Drilling’s failure to prove the

required elements under the duty-risk analysis. We find the trial court did not err

in this regard.

Accordingly, J. M. Drilling’s third assignment of error is without merit.

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DECREE

The trial court’s judgment in favor of Defendant/Appellee, Water &

Wastewater Utilities, Inc., is affirmed. All costs of this appeal are assessed to

Defendant/Appellant, J. M. Drilling LLC.

AFFIRMED.

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