Devin Sanders v. Woodlawn Cemetery, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-398

DEVIN SANDERS

VERSUS

WOODLAWN CEMETERY, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 201610641
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Daniel A. Meyer
Bruno & Bruno, LLP
855 Baronne Street
New Orleans, Louisiana 70115
(504) 525-1335
COUNSEL FOR PLAINTIFF/APPELLANT:
Devin Sanders

Dan Boudreaux
Keith R. Giardina Law Offices
9100 Bluebonnet, Suite 300
Baton Rouge, Louisiana 70809
(225) 293-7272
COUNSEL FOR DEFENDANT/APPELLEE:
Netherlands Insurance Company

Brian Arthur Gilbert
Conroy Law Firm
3501 North Causeway Boulevard, Suite 500
Metairie, Louisiana 70002-8345
(504) 830-3450
COUNSEL FOR DEFENDANT/APPELLEE:
Acme Mausoleum, LLC

L. Adam Thames
Taylor, Porter, Brooks, & Phillips, L.L.P.
Post Office Box 2471
Baton Rouge, Louisiana 70821-2471
(225) 387-3221
COUNSEL FOR DEFENDANT/APPELLEE:
Woodlawn Cemetery, Inc.

CONERY, Judge.

Plaintiff sustained serious bodily injury when he fell through the skylight of a

mausoleum at the defendant’s cemetery in Crowley, Louisiana. At the time of the

accident, Plaintiff was working as a crewmember for a subcontractor engaged to

expand an existing mausoleum structure. He sustained serious bodily injury when

he fell through a skylight on the roof of the original mausoleum while he was

working on the project. The cemetery filed a motion for summary judgment,

asserting that Plaintiff would not be able to prove that it had custody or control of

the worksite nor would he be able to prove that it had actual or constructive notice

of the alleged defect in the skylight prior to the accident. The trial court granted

summary judgment dismissing Plaintiff’s case, noting a lack of genuine issues of

material fact concerning notice. Plaintiff appeals. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

This matter arose on July 13, 2015 when Plaintiff Devin Sanders, an

employee of Architectural Concrete Products, Inc. (ACPI), was working on the roof

of a mausoleum located on the grounds of a cemetery owned by defendant

Woodlawn Cemetery, Inc. (Woodlawn), a non-profit organization. While working,

Plaintiff fell through a skylight, on to the mausoleum floor below. He sustained

spinal fractures resulting in lower body paraplegia.

The designated appellate record indicates that the mausoleum at which

Plaintiff’s accident occurred—and the skylight was located—was added to the

premises in 1992 after Woodlawn contracted for its construction by Acme

Mausoleum, LLC (Acme), a company focused on the development, construction,

and selling of mausoleums.

Prior to the accident, Woodlawn sought an expansion of its mausoleum

capacity and again contracted with Acme to add an addition to the existing structure.

The resulting 2014 “Sales and Construction Contract” between Acme and

Woodlawn indicated that Acme would plan, design, construct, and deliver the

completed mausoleum addition to Woodlawn. In keeping with its usual business

practice, Acme engaged Plaintiff’s employer, ACPI, to actually complete the

construction.

The February 10, 2015 “Construction Contract” between Acme and ACPI

required the latter to “furnish all plant, labor and materials, and [to] perform all work

required by the Contract Documents, for construction” of the mausoleum addition.

ACPI also agreed, in part, to “be responsible for all damages to persons or property

that occur as a result of his fault or negligence in connection with the prosecution of

the work” and to “defend, indemnify and hold [Acme] harmless from all claims for

damages to persons or property resulting from the fault of negligence” of ACPI. The

contract additionally required ACPI to comply with all OSHA requirements in the

performance of its work and “to assume all responsibilities of [Acme] with respect

thereto, and to indemnify and hold harmless [Acme] from all penalties, damages or

other losses resulting from failure to do so.”

With construction underway, Plaintiff reported to work at the cemetery with

other ACPI employees1 on July 13, 2015. He and two other employees had been

assigned as a replacement crew on the Woodlawn project, working under the

direction of ACPI Superintendent/Foreman Mike Wright.

1
Plaintiff explained in his deposition that he had been hired to work in “concrete” with
ACPI but was unsure of his title since, “We did it all[.]” His experience with ACPI was exclusively
working on jobs dealing with mausoleums.

2

For some reason not clear in the record, Plaintiff’s work site was on the roof

of the existing mausoleum, 2 located adjacent to the addition being constructed.

2
Plaintiff testified in his deposition that the supervisor directed him and his two co-workers
to “get on the roof” by his ACPI supervisor.

In his own deposition, ACPI Superintendent Wright explained that, typically, as ACPI was
constructing crypts, they would construct “a railing around the area” when they got “to a roof”.
At the time of the July 13, 2015 accident, however, a railing had not yet be put into place although
the addition had been built “[p]robably more than midway to the roof.”

Mr. Wright reported that Plaintiff and his two-coworkers arrived on the site the day of the
accident after he had been informed that his regular crew would not be available that day. He
explained the work situation on the day of the accident as follows:

Q. What was on the agenda for work that day on July 13th when Nick,
Quentin and Devin came to your site?

A. What was on the record prior, before I knew my guys weren’t
showing up?

Q. Let’s do both.

A. My guys, we had just set up our shoring and laid the deck.

Q. Is that the roof?

A. Correct. To pour the roof. Once we got the deck – This was on a
Friday we got the deck work. I’m sorry. It was a Thursday. We don’t work on
Fridays. We got back on Monday and we normally, typically set up all the safety
rails on the deck and get everything squared away to begin laying out the deck.

Q. But your guys didn’t know up, so you had to change plans?

A. Correct.

Q. To what?

A. When Devin and the other guys showed up, I had them cutting parts
that we would use to set up the roof forms. You have got to cut kickers, basically
to line the form as it went around the roof. It’s a whole bunch of pieces 2 x 4 about
twelve inches long.

Q. What was the size of the form that you were going to pour on the
roof?

A. It would have been a nine-inch thick slab. The form edge was nine
inches. You had to cut a bunch of little kickers.

Q. What was the condition of the roof, I guess at the time you guys
arrived?

A. The deck was down. And then we had our concrete. There is a deck.
We would have poured the overhand.

3

George White, Jr., the Director of Acme, testified that, although the original

mausoleum and the addition were entirely separate buildings that did not touch, the

design called for “a half-inch expansion joint between the concrete wall of the

existing mausoleum and the concrete wall of [the addition].”

Q. Let me interrupt you for a second.

A. Yes.

Q. Were you using a metal deck?

A. No.

Q. What type of deck was it?

A. Wood. Plywood.

Q. Go ahead.

A. So the plywood deck, there’s our concrete mausoleum that we
poured which covers both of them. Behind it is the existing mausoleum. I had
Devin and those guys on the existing building cutting parts, because there was no
railing system set up out front. So there’s no need for them to be working. We
were not going to set any form work with them because my guys knew where
everything was. It would have taken too long. I would have spent my whole day
finding parts for them. So I just set them up a saw. And I said, “Look, you all set
these 2 x 4s. We need a hundred of these. Three hundred of those.”

Q. Rip form kickers all day?

A. Yes. That was my plan for them.

Q. So there was a mausoleum that you were building adjacent to an
existing mausoleum?

A. Right up against it.

Q. It was almost like an extension?

A. Yes. Typical mausoleums they build phase one. Then you pour
phase two, phase three. It just goes on and on and on.

Mr. Wright explained that the original mausoleum had been extended “several” times.

4

Plaintiff alleged in his petition that he was cutting lumber into roof-form

support posts3 and that he had taken a break to drink water, crouching on the rooftop

as he did so. Plaintiff alleged that, when he stood up, he “fell backwards onto the

dome-shaped skylight,[4] which failed to support his weight[.]” As a result, Plaintiff

fell through the skylight and “onto the concrete crypt below[.]” The record indicates

that Plaintiff sustained severe injuries, including lower-body paraplegia.

Plaintiff named Woodlawn, as premises owner, as a defendant5 in this suit and

alleged that his injuries were due to defects of the skylight. Citing premises liability

under La.Civ.Code art. 2317 and La.Civ.Code art. 2317.1, Plaintiff contended that

Woodlawn “had actual or constructive knowledge of the condition of the skylight.”

In June 2019, Woodlawn filed a motion for summary judgment, asserting that

3
In his deposition, Plaintiff explained that he and his two coworkers were “pulling up the
trimming that’s like on the sides of the building, pulling trimming, laying trimming, basically
shaping it to fit the sides.”

When asked about the “overall purpose” of ACPI’s work at Woodlawn and whether “it
was to add on to the existing mausoleum or build a new one[,]” Plaintiff responded:

A. I don’t know because they was working on the back. It looked like
they was about to build another one, but like I said, it was a previous mausoleum
there. So I don’t know. I’m not sure.

Q. Right. So there was a mausoleum already there when you got there,
right?

A. And looked - - had the grounds in the back looked like they were
laying another one, but I’m not sure.

Q. But specifically what they were asked to do would be something that
I need to go to talk to ACPI?

A. Yes.
4
Deposition testimony and statements by affidavit admitted into the record do not reflect
an eyewitness account of Plaintiff’s fall. Coworkers instead heard the fall. Plaintiff had no
recollection of the actual event.
5
Plaintiff also named Acme, a general contractor, as a defendant. Briefing to this court,
however, indicates that Acme was dismissed via summary judgment due to a determination that it
was Plaintiff’s statutory employer. That ruling is not before this court. We therefore address
Woodlawn as the sole defendant.

5

Plaintiff would be unable to prove that it had custody and/or control of the skylight

at the time of the accident nor would he be able to prove that it had actual or

constructive notice of the purported defect in the skylight. Woodlawn argued

therefore that Plaintiff would be unable to sustain his burden of proving premises

liability. Woodlawn supplemented its motion with, among other exhibits, the

contracts pertinent to the 2015 construction and with deposition testimony from

Woodlawn, Acme, and ACPI. Woodlawn also included the affidavits of Plaintiff’s

coworkers on the scene and Plaintiff’s deposition.

Following a hearing, the trial court rendered summary judgment in favor of

Defendant Woodlawn. By minute entry, the trial court explained:

Louisiana law requires actual or constructive notice of the
allegedly defective skylight, one of the elements of Plaintiff’s premises
liability claims which Plaintiff has failed to meet. As such, under
La.C.C.P Article 966(A)(3) the Court finds that there is no genuine
issue of material fact concerning that actual or constructive, and the
mover, Woodlawn is entitled to judgment as a matter of law.

It therefore dismissed Plaintiff’s claims against Woodlawn.

Plaintiff appeals the resulting October 11, 2019 judgment and assigns the

following as error:

1. The District Court erred by finding Woodlawn Cemetery,
Inc. (“Woodlawn”) did not have actual or constructive knowledge of
the defective skylight in its building where it is undisputed that
Woodlawn owned the building, the skylight defect existed for at least
23 years, and Woodlawn produced no evidence that it ever inspected or
maintained the roof or skylight during the 23 years the defect existed.

2. The District Court erred by finding there are no genuine
issues of material fact with regard to Woodlawn’s actual or constructive
knowledge of the defective skylight in its building where the plaintiff’s
expert engineer opined the building owners should have known of the
unreasonably dangerous condition posed by the skylight panels
installed on the roof and should have taken minimal precautions to
prevent injury as a result of the defect.

6

3. The District Court erred by resolving disputed facts
against the non-moving party in a summary judgment proceeding,
specifically finding that Woodlawn did not have constructive
knowledge of the skylight defect where the defect existed for at least
23 years was never inspected or maintained.

LAW AND DISCUSSION

Summary Judgment – Standard of Review

Louisiana Code of Civil Procedure Article 966(A)(3) requires a court to grant

a motion for summary judgment “if the motion, memorandum, and supporting

documents show that there is no genuine issue of material fact and that the mover is

entitled to judgment as a matter of law.” On appeal, a trial court’s ruling on a motion

for summary judgment is reviewed de novo. Bufkin v. Felipe’s La., LLC, 14-288

(La. 10/15/14), 171 So.3d 851. We therefore turn to consideration of Woodlawn’s

motion for summary judgment.

Premises Liability

Plaintiff’s petition advanced a cause of action under the concept of premises

liability. In such a case, La.Civ.Code art. 2317 provides that “[w]e are responsible,

not only for the damage occasioned by our own act, but for that which is caused by

the act of persons for whom we are answerable, or of the things we have in our

custody.” The principle, “however, is to be understood with the following

modifications.” Id. Louisiana Civil Code Article 2317.1 thereafter provides that:

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.

7

Thus, a plaintiff seeking premises recovery under La.Civ.Code art. 2317.1 must

prove:

(1) that the thing which caused the damage was in the defendant’s
custody or control, (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 such reasonable care.

Owens v. McIlhenny Co., 18-754, p. 3 (La.App. 3 Cir. 3/27/19), 269 So.3d 839, 842

(quoting Riggs v. Opelousas Gen. Hosp. Tr. Auth., 08-591, p. 4 (La.App. 3 Cir.

11/5/08), 997 So.2d 814, 817). See also Grossie v. MGM Props., Inc., 18-224

(La.App. 3 Cir. 4/10/19), 269 So.3d 921. A plaintiff’s failure to provide proof of

any one of the elements is fatal to his or her claim. Owens, 269 So.3d 839.

In its motion for summary judgment, Woodlawn focused its argument on the

elements of 1) custody and control and 2) actual or constructive notice of the

purported defect. Although Plaintiff observes that the trial court focused on a lack

of evidence regarding notice—and he in turn addresses that finding in his appellant’s

brief—this court’s review of a ruling on a motion for summary judgment is de novo.

Even had the trial court limited its review to that single element, 6 it would be of no

moment. We consider the elements in turn.

Custody/Control

Woodlawn maintained in its motion that genuine issues of material fact do not

exist with regard to whether it had custody or control of the area in which the

accident occurred given the fact that it was an active construction zone. Conceding

6
The trial court’s minute entry reflects broadly that: “Louisiana law requires actual or
constructive notice of the allegedly defective skylight, one of the elements of Plaintiff’s premises
liability claims which Plaintiff has failed to meet.” Seemingly, the trial court found notice to be
only one of the elements lacking proof.

8

its ownership of the premises, Woodlawn points out that premises liability “is based

on custody, not ownership.” Migliori v. Willows Apartments, 98-1814, p. 5 (La.App.

4 Cir. 2/3/99), 727 So.2d 1258, 1260, writ denied, 99-873 (La. 5/14/99), 741 So.2d

662. In this regard, this court has explained that “the owner of a building under

construction or renovation generally does not have custody for purposes of liability”

based on the principles of La.Civ.Code art. 2317 and La.Civ.Code art. 2317.1. See

Schram v. Colony Specialty Ins. Co., 16-958, p. 7 (La.App. 3 Cir. 12/29/16)

(unpublished opinion).7 See also Sasser v. Wintz, 11-2022 (La.App. 1 Cir. 9/4/12),

102 So.3d 842; Migliori, 727 So.2d 1258. The court must inquire “whether the

defendant had the right of direction or control over the thing and what, if any, benefit

the defendant derived from the thing.” Jordan v. Thatcher Street, LLC, 49,820

(La.App. 2 Cir. 6/10/15), 167 so.3d 1114 (citing Doughty v. Insured Lloyds Ins. Co.,

576 So.2d 461 (La.1991)).

The record confirms Woodlawn’s assertion regarding the lack of evidence of

its custody over the site at the time of Plaintiff’s fall and injury. The documentary

evidence verifies Woodlawn’s status as a non-profit corporation, administered by a

seven-member board of directors. Roy Geesey, President of Woodlawn Cemetery,

Inc., described Woodlawn as a “small town cemetery” with no employees, let alone

any employees on site at the time of the construction.

Mr. Geesey testified that Woodlawn engaged Acme, as it had in 1992 with the

construction of the original mausoleum, to design, build, and ultimately market the

2015 addition. Acme controlled all aspects of the construction, including

contracting of subcontractors, in this case ACPI, for the actual physical labor and

7
2016 WL 7475827

9

materials. Mr. Geesey described its contract with Acme as “turnkey” and that it

enabled Acme to do whatever it needed to do to complete the mausoleum. He

explained that no one restricted the construction workers from going on the roof,

that Woodlawn had no knowledge of anyone going onto the roof during the

construction, and that the cemetery, instead, relied on Acme to ensure the site was

safe.

Plaintiff did not counter this evidence regarding Woodlawn’s lack of direction

and control over the site. He pointed to no testimony indicating that Woodlawn took

an active part in the scope of the work site, the way in which the ACPI employees

performed their work, the location at which they performed their work, or the way

in which they were supervised. Plaintiff likewise presented no evidence of input

from Woodlawn or even any interaction between Woodlawn and ACPI personnel.

To the contrary, Mr. White, who acted as corporate representative for Acme

in its deposition, explained as follows in questioning regarding his relationship with

Woodlawn and the lack of the Woodlawn’s oversite:

Q Are you aware of any restrictions that Woodlawn placed
on Acme in terms of access of the site where construction was going to
take place?

A No. Let me back up on that last question and answer.

Q Sure.

A Restrictions that Woodlawn placed on access to the site.
Now, this is a cemetery with ongoing interments and it was understood
that there were people that were going to be buried there, and so we
would have to accommodate, you know, stop work when there was a
funeral or those kinds of things and we couldn’t block access to tombs
and the existing mausoleum.

Q Did Woodlawn give Acme any instructions on how to go
about the construction of these additions?

A. No.

10

Further removed from Woodlawn, Mr. White testified to the relationship between

Acme and ACPI regarding operational control of the site and explained:

Q If Acme wanted to put up some sort of fence or protective
area around where the construction was taking place, would they have
been permitted to do so?

A That’s an interesting question. The responsibility for
construction, including the management of the site, construction site
and safety is [ACPI].

If I saw something that was unsafe, just because I was in the
neighborhood and brought it to Frank Nodier’s8 attention, I’m sure he
would look into it and address the issue, but that never happened. I
never saw anything like that.

Q My question is, if Acme wanted to make a protective fence
or any sort of barrier around the area where construction was taking
place, would they have been prevented from doing so?

A If we would have put that in our agreement with [ACPI],
certainly, I don’t think he would have objected to that.

Finally, as indicative of the evidence of Woodlawn’s distant relationship to

the day-to-day operations of the construction project, Mr. Geesey confirmed that the

cemetery was not made aware of Plaintiff’s accident, or even the existence of the

broken skylight, at the time it occurred. Woodlawn learned of the injury only at the

time suit was filed one year after the accident’s occurrence. While ownership is

clear, Plaintiff has not demonstrated that genuine issues of material fact exist

regarding Woodlawn’s custody or control of the purportedly defective skylight at

the time of this construction-related accident. Accordingly, summary judgment was

appropriate.

8
Mr. White described Mr. Nodier as the owner of ACPI.

11

Actual or Constructive Notice

Neither is there merit in Plaintiff’s contention that the trial court erroneously

determined that it failed to establish genuine issues of material fact on the issue of

actual or constructive notice. On this point, Plaintiff does not challenge Woodlawn’s

assertion that it did not have actual notice in the twenty-three year history of the

skylight that it posed a threat to a workman on its roof. Nor did it have notice that

the skylight was out of compliance with any applicable construction code.

Plaintiff instead points to jurisprudence that he contends stands for the broad

proposition that constructive notice exists if an injury-causing condition existed for

such a period of time that the responsible party must have discovered it in the

exercise of ordinary care and diligence. Citing, e.g., Dronette v. Shelter Ins. Co.,

08-654 (La.App. 3 Cir. 12/10/08), 998 So.2d 942; Blount v. East Jefferson Gen.

Hosp., 04-407 (La.App. 5 Cir. 10/12/04), 887 So.2d 535; Joseph v. City of New

Orleans, 02-1996 (La.App. 4 Cir. 3/5/03), 842 So.2d 420.

Plaintiff’s argument, however, conflates the element of the existence of a

defect with the separate element of notice, actual or otherwise. The fact-specific

jurisprudence referenced by Plaintiff does not indicate that the passage of time—

alone—eliminates a plaintiff’s burden of proving notice. It is instead a fact-bound

inquiry.

In both brief and in oral argument, Plaintiff advances Dronette, 998 So.2d 942,

for the proposition that the absence of periodic inspections is a significant factor in

finding constructive knowledge. Although Dronette involved a construction

worker’s injury, the remaining facts of that case are strikingly different from this

matter. The homeowners in that earlier case retained the services of the plaintiff and

his father, a carpeting contractor, to remove carpeting from their home. While doing

12

so the plaintiff made contact with a second-floor balcony railing while throwing

bundles of carpeting to the ground, sustaining injury due to a fall. The plaintiff

alleged that the defendant homeowners, the Bordlees, had knowledge of the

purported defect as “it takes considerable time for decay to develop” and, therefore,

the defendants “should have known there was rotten wood in their balcony railings.”

Id. at 945. The trial court rejected that argument, and this court affirmed, finding

that the homeowners had neither actual nor constructive notice.

The Dronette panel pointed out that no one involved had “observed any rotten

spots prior to the accident” and, furthermore, the defendants “certainly did not ignore

the condition[.]” Id. The defendants instead requested a contractor’s inspection of

the railing as, about three days prior to the accident, Mrs. Bordlee became concerned,

in part, “about one of the balcony’s railing’s rattling spindles.” Id. at 944. The

defendants’ contractor undertook a fifteen to thirty minute inspection, grabbing and

shaking the railing before “concluding that there was nothing unsafe about the

balcony’s condition.” Id. Also, the plaintiff’s father admitted that he had been on

the balcony before the accident to examine “whether it was safe to throw the carpet

over the railing” and that the inspection did not reveal anything out of the ordinary.

Id. at 944. Relying upon those inspections, this court explained that as “both

contractors concluded that the balcony was in good and safe condition[,]” “[i]t is

very difficult for us to imagine what else these homeowners could have reasonably

done to discover the rotten wood.” Id. at 945 (emphasis in the original).

In contrast to the Dronette homeowners who were prompted to seek an

inspection upon discovery of a rattling spindle, Plaintiff in this case presented no

facts indicating that Woodlawn should have been similarly prompted to seek

inspection of the skylight. Instead, all evidence indicates no reporting of prior

13

problems or incidents with the skylight. That factual distinction undermines

Plaintiff’s contention that the Dronette panel’s statement that it “may have been

more receptive to the [plaintiff’s] argument if [the defendants] had not requested the

inspection[,]” is determinative in this case. Id. at 945. The evidence in this case

does not indicate that Woodlawn was similarly called upon to have its premises

inspected when, in fact, it knew of no suspicious condition, nor even that ACPI

workers would be in the vicinity of the skylight.

In Joseph, 842 So.2d 420, another of the cases relied upon by Plaintiff, the

complained of defective sidewalk was remarked to have been in regular use and to

have been heavily trafficked for a period of up to ten years. The appellate court

referenced the sidewalk’s “obvious state of disrepair” as reflected by photographic

evidence. Id. at 425. In Blount, a case addressing “constructive notice” for purposes

of public entity liability under La.R.S. 9:2800(C), the fifth circuit affirmed the trial

court’s determination that the plaintiff in that case failed to prove that she would

meet her burden of proving notice of a spill when there was no evidence regarding

the length of the existence of the condition. Notably, La.R.S. 9:2800(D) (emphasis

added) provides that, for purposes of that statute, “[c]onstructive notice shall mean

the existence of facts which infer actual knowledge.”

In this case, Plaintiff failed to come forward with disputed factual issues. He

simply pointed to the existence of a skylight that did not bear his weight and, in turn,

alleged that Woodlawn should have discovered its non-load bearing condition with

reasonable care. While he offered an expert’s engineering report indicating that the

skylight posed an unreasonable risk of harm in that it did not meet certain regulatory

14

standards of care,9 Woodlawn did not challenge the existence of a defect for the

limited purposes of this summary judgment proceeding. Instead, on the contested

issue of notice, the engineering report offers the conclusory opinion that the

cemetery “should have previously taken (and currently taken) the minimal

precautions necessary to protect the life and safety of persons allowed on the roof”

given the skylight’s condition. This conclusion, however, lacks factual background

that would have conveyed notice, actual or constructive.

To be clear, Plaintiff sustained injury on the roof of an existing mausoleum

where Plaintiff’s employer, ACPI, was performing work related to the construction

of an adjacent structure. ACPI had control of the entire worksite. Inexplicably given

9
The report indicated, in part, that:

Minimum standards of care are established by model safety codes and publications
including but not limited to; the International Building Code (IBC), the United
States Department of Labor Occupational Safety and Health Administration
(OSHA), National Institute for Occupational Safety and Health (NIOSH),
American Architectural Manufacturers Association (AAMA), American Society
for Testing and Materials (ASTM International), among others. The OSHA
standard Guarding Floor and Wall Openings and Holes – 1910.23(a)(4) states
“…skylights in the roof of buildings through which persons may fall while walking
or working shall be guarded by a standard skylight screen or a fixed standard railing
on all exposed sides.”

In an article titled “Skylight fall protection: More than just the manufacturer’s
responsibility” by John Lewis (previous Technical Director of AAMA)) and
published February 19, 2009, Mr. Lewis writes, “Signage should be posted by the
building owners and managers at each access point on the roof, communicating
roof safety and inherent dangers.” Clearly this indicates that some sort of signage
and/or markings should be posted on the roof by building owners where skylights
exist without fall protection screens.

During the site investigation, our office noted that the subject skylight did not
display building code required labeling that would indicate performance
compliance with AAMA/WMDA/CSA 101/I.S.2/A440. The plastic skylight was
flimsy and easily moved under minimal hand pressure. Furthermore, we noted that
no skylight protection screen had been installed on the subject skylight, nor on the
remaining skylights. We noted that many tripping hazards, including excessive
roof curbs, existed near the subject skylight. We noted that there were no markings
or signage warnings of the dangers of falling through the skylight. Clearly, no
measures had been taken by the building owners to safeguard against the
unreasonably dangerous hazard of falling through the skylight.

15

its approximately twenty-foot 10 distance from the construction site, Plaintiff

seemingly fell backward onto the skylight which then collapsed under his weight.

When asked if he had “any idea” how Plaintiff fell through the skylight, Mr.

Wright stated that he had “no clue why he was back there.” He noted the distance

between the area in which the team was working and the skylight, a distance he

estimated to be “fifteenish feet.” As ACPI Superintendent, he expected the workers

to stay in the area “[w]here the materials were[.]”

Simply put, there was no evidence that Woodlawn either had custody or

control of this skylight at the time of the construction project, or that it had notice of

any defect. To the contrary, this skylight was located on top of an existing

mausoleum previously built by Plaintiff’s employer, ACPI, and not the mausoleum

addition under construction. The “skylight,” obviously, was intended only to let in

sunlight on the space below. Plaintiff failed “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.Code Civ.P. art. 966(D)(1).

Accordingly, the trial court did not err in its entry of summary judgment in favor of

Woodlawn.

DECREE

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

of this proceeding are assessed to Plaintiff/Appellant, Devin Sanders.

AFFIRMED.

Plaintiff’s expert engineering report indicates that “the subject skylight was located
10

approximately 20 feet east of the rear addition[.]”

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