Martha Holleman & Mike Holleman v. Golden Nugget Lake Charles, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-70

MARTHA HOLLEMAN & MIKE HOLLEMAN

VERSUS

GOLDEN NUGGET LAKE CHARLES, LLC, ET AL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2016-2171
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Shannon J. Gremillion, D. Kent Savoie, and Candyce G. Perret,
Judges.

REVERSED AND REMANDED.

Kevin L. Camel
Cox Cox Filo Camel Wilson & Brown, LLC
723 Broad Street
Lake Charles, Louisiana 70601
(337) 436-6611
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Martha Holleman
Mike Holleman

Taylor S. Carroll
Williams Anderson Ryan & Carroll, L.L.P.
9241 Bluebonnet Boulevard, Suite A
Baton Rouge, Louisiana 70810
(225) 412-7121
COUNSEL FOR DEFENDANT/APPELLEE:
Bergman, Walls & Associates, Ltd.

SAVOIE, Judge.

Plaintiffs Martha and Mike Holleman appeal the judgment of the trial court,

granting the Motion for Summary Judgment filed by Defendant Bergman Walls &

Associates, Ltd. (Bergman Walls) and dismissing the case with prejudice. For the

following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 5, 2016, Martha Holleman was injured when she slipped and fell on

wet travertine tile while walking around the pool area of the Golden Nugget Casino

and Resort (Golden Nugget) in Lake Charles, Louisiana. In addition to filing suit

against Golden Nugget, Plaintiffs sued Bergman Walls as the architect of record

for the design of the casino.1 Plaintiffs alleged that the tile did not have the proper

coefficient of friction for wet areas and did not comply with the applicable building

codes.

On March 19, 2021, Bergman Walls filed a Motion for Summary Judgment,

alleging that Plaintiffs could not carry their burden of proof as to liability. The

trial court granted the motion after denying Plaintiffs’ motion to strike, which was

based on a notice issue. Plaintiffs appealed. A panel of this court vacated the

judgment of the trial court, granted Plaintiffs’ motion to strike the motion for

summary judgment from the record, and remanded the case to the trial court for

further proceedings.

On September 13, 2023, Bergman Walls filed another Motion for Summary

Judgment into the record, again alleging that Plaintiffs could not carry their burden

of proof. Bergman Walls specifically argued that it was not liable for the mistakes

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Plaintiffs settled their claims against Golden Nugget, leaving only Bergman Walls as a
defendant herein.

of the independent contractor, who Bergman Walls argued was responsible for the

construction of the pool area. After a hearing on October 12, 2023, the trial court

ruled “that [Bergman Walls] is not solidarily liable for the alleged fault of

Defendant’s independent contractors pursuant to La. C.C. art. 2324.” Thereafter,

Plaintiffs filed this appeal.

STANDARD OF REVIEW

In Pollock v. MDA Consultants, L.L.C., 22-540, p. 7 (La.App. 3 Cir. 2/1/23),

362 So.3d 929, 934, writ denied, 23-551 (La. 6/7/23), 361 So.3d 976, this court

explained:

The summary judgment procedure is expressly favored in the
law and “is designed to secure the just, speedy, and inexpensive
determination of every action[.]” La.Code Civ.P. art. 966(A)(2).
Appellate courts review summary judgments de novo under the same
criteria that govern the trial court’s consideration of whether summary
judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La.
11/29/06), 950 So.2d 544. “After an opportunity for adequate
discovery, a motion for 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).

LAW AND DISCUSSION

The trial court granted the motion for summary judgment and dismissed

Plaintiffs’ case after finding that landscape architectural firm, Lifescapes

International (Lifescapes) was an independent contractor of Bergman Walls.

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

committed by an independent contractor while performing its contractual duties.”

James v. Christus Health Cent. La., 19-775, p. 5 (La.App. 3 Cir. 8/12/20), 305

So.3d 393, 398, writ denied, 20-1099 (La. 11/10/20), 303 So.3d 1034. “The

distinction between employee and independent contractor status is a factual

determination that must be made on a case-by-case basis[.]” Certified Cleaning &

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Restoration, Inc. v. Lafayette Ins. Co., 10-948, p. 5 (La.App. 5 Cir. 6/14/11), 67

So.3d 1277, 1281, writ granted in part and remanded on other grounds, 11-

2174 (La. 11/18/11), 75 So.3d 466. In the present case, Bergman Walls bears the

burden of proving the independent contractor status of Lifescapes. See James, 305

So.3d 393.

In Espinosa v. Accor North America, Inc., 14-1276, pp. 9–10 (La.App. 4 Cir.

7/8/15), 174 So.3d 123, 129–30, the fourth circuit court of appeal explained:

“Under the provisions of La. C.C. art. 2320, ‘[m]asters and
employers are answerable for the damage occasioned by servants and
overseers, in the exercise of the functions in which they are
employed.’ ” Marchetta ex rel. Marchetta v. CPC of Louisiana, Inc.,
99–0485, p. 6 (La.App. 4 Cir. 3/22/00), 759 So.2d 151, 155, quoting
La. C.C. art. 2320. “However, vicarious liability does not apply when
an independent contractor relationship exists.” Marchetta, 99–0485, p.
6, 759 So.2d at 155. The court considers the following factors to
determine if an independent contractor relationship is present:

(1) whether there is a valid contract between the parties;
(2) whether the work being done is of an independent
nature, such that the contractor may employ a non
exclusive means in accomplishing it; (3) whether the
contract calls for specific piecework as a unit to be done
according to the independent contractor’s own methods,
without being subject to control and direction of the
principal, except as to the result of the services rendered;
(4) whether there is a specific price for the overall
undertaking agreed upon; and (5) whether the duration of
the work is for a specific time and not subject to
termination or discontinuance at the will of either side
without a corresponding liability for its breach.

Certified Cleaning & Restoration, Inc. v. Lafayette Ins. Co., 10–948,
p. 6 (La.App. 5 Cir. 6/14/11), 67 So.3d 1277, 1281. “However, the
most important test in determining whether or not an independent
contractor relationship exists involves the employer’s control over the
work.” Morales v. Davis Bros. Const. Co., 94– 0902, p. 4 (La.App. 4
Cir. 12/15/94), 647 So.2d 1302, 1305.

In James, 305 So.3d 393, a hospital visitor brought a slip and fall action

against the hospital, alleging that her fall was caused by liquid on the hallway

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floor. The hospital argued that the housekeeping company it hired to clean and

maintain the hospital was responsible for the plaintiff’s injuries. Specifically, the

hospital claimed the housekeeping company was its independent contractor, which

absolved the hospital of liability. After trial, the trial court found no negligence on

the part of the hospital, finding the housekeeping company was the hospital’s

independent contractor and was solely responsible for the accident. The appellate

court reversed, concluding that the trial court could not determine the degree of

control the hospital had over the housekeeping company because the contract

between the two was never entered into the record. Because the hospital had the

burden of proving independent contractor status, the appellate court rendered

judgment in favor of the plaintiff.

Similarly, in the present case, the contract between Bergman Walls, the

architect, and Lifescapes, the landscape architect, is not filed in the record. The

contract between Bergman Walls and the owner of the project is attached as an

exhibit to the motion for summary judgment. Plaintiffs argue that this contract

proves that Bergman Walls was responsible for the actions and decisions of

Lifescapes.

On March 14, 2012, Bergman Walls entered into a Design Services

Agreement with the owner of the Golden Nugget Casino and Resort, Ameristar

Casinos, Inc. It states, in pertinent part:

ARTICLE I
ARCHITECT’S RESPONSIBILITIES

Section 1.1 Architect’s Services

The Architect represents that it is, and each and all of its
consultants shall be, properly licensed in the State of Louisiana and is
experienced in the design and preparation of construction documents
for casinos, hotels, garages and other related facilities in connection

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with resort, gaming and entertainment projects. In providing services
under this Agreement, the Architect will perform in a manner
consistent with that degree of care and skill ordinarily exercised by
members of the same profession on projects substantially similar to
the Project and with the same experience as Architect. The
Architect’s services consist of those services performed by the
Architect, Architect’s employees, Architect’s consultants, and any
other services normally incurred in the normal course of business of
providing the Basic Services set forth in this Agreement with regard
to the Project, including without limitation rendering a complete set of
Construction Documents.

....

ARTICLE 4
ARCHITECT OF RECORD AND CONSULTANTS

Section 4.1 Architect of Record

Owner understands and agrees that Architect may enter into
other architectural contracts as needed for the full completion of the
Work, and all such other contracts shall be at the sole cost and
responsibility of the Architect as a part of Basic Services and shall be
with consultants mutually acceptable to Architect and Owner.

Section 4.2. Consultants

(a) The Architect shall retain, as part of the Basic Fee, and as
part of the Architect’s Basic Services, professional and licensed
consultants ordinarily and necessarily retained to provide architectural
services to design a project of the size and scale of the Project. The
services of such consultants shall include but are not limited to the
following services when required to complete the Project, and the
individual Subcontractors for the following disciplines, with their
address and contact information, designated representative, license
number and stated discipline, are set forth on Exhibit G attached
hereto:

....
Landscape
....

(b) The retention of the aforesaid consultants shall not
diminish or reduce the rights, obligations or duties of the Architect
under this Agreement.

....

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ARTICLE 5
SCOPE OF ARCHITECTS SERVICES

Section 5.1 Definition of Basic Services

(a) The Architect’s Basic Services are comprehensive and
include all architectural services required to provide the necessary
construction documentation and administration for a successful
Project, including without limitation the services described in Sections
5.1 through 5.6 and elsewhere in this Agreement and include but are
not limited to such other structural, mechanical/electrical services
normally performed by an architect or engineer employed to provide
design services for a Project of this size and nature, and based on
Owner’s program and the Guaranteed Maximum Price Premises and
Assumptions and the GMP. . .

....

(d) The Architect shall be responsible for the coordination of
its services, including its Drawing and Specifications, with the
Drawings and Specifications of its consultants, including the
incorporation of the mechanical, plumbing, electrical, security, low
voltage and other drawings and specifications of, and directing, all
consultants retained or engaged by or through the Architect and at all
times perform its services and act with the normal and customary
degree of care and skill used by members of the architectural
profession practicing under similar conditions at the same time and
locality and on projects of similar size, scope and complexity.
Architect shall also cooperate and coordinate its Drawings and
Specifications with, and incorporate the work of, all consultants
employed by Owner in connection with the Project, and with other
architects, engineers or others employed by the Owner or any other
party for work related to the overall Project. Notwithstanding the
foregoing, the coordination by the Architect is not intended to absolve
or release contractors or other design professionals from complying
with their respective standards of care. Lastly, the Architect is not
responsible for errors and omissions of consultants it does not retain,
except to the extent of any error or omission that was known to
Architect, or reasonably should have been discovered by Architect in
the performance of this Agreement, and was not timely disclosed in
writing to Owner.

Plaintiffs argue that, based on the Design Services Agreement, Bergman

Walls agreed to be responsible for the entirety of the Golden Nugget project,

including design, its consultants, plans and specifications, and any and all

architectural services needed for the full completion of the job.

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Plaintiffs further contend that Bergman Walls breached its duty as architect

of record. Plaintiffs maintain that, under Louisiana law, the architect of record is

legally responsible for ensuring that the design and construction of the project

meets the building codes. In support of this contention, Plaintiffs cite 46 LAC Pt I,

§ 1307 (emphasis added), which states:

A. It is recognized that in certain fields of practice there is a
broad overlap between the work of architects and engineers. This is
particularly true in the field of buildings and similar structures. It is
recognized that an architect, who has complied with all of the current
laws of Louisiana relating to the practice of architecture has a right to
engage in activities properly classifiable as professional engineering
insofar as it is necessarily incidental to his work as an architect.
Likewise, it is recognized that the professional engineer, who has
complied with all of the current laws of Louisiana, and is properly
registered in that branch of engineering for which he may be qualified,
has a right to engage in activities classifiable as architectural insofar
as is necessarily incidental to his work as an engineer. Furthermore,
the architect or the professional engineer, as the case may be,
shall assume all responsibility for compliance with all laws or
ordinances relating to the designs of projects with which he may
be engaged.

On November 9, 2012, Bergman Walls filed a Design Supervision Statement

with the City of Lake Charles. It states:

This is to advise that I am a registered Architect or Engineer duly
licensed in the State of Louisiana, and that in my professional
opinion the plans submitted on the above referenced project
conform to the provisions of Section 6-35 et seq, of the Lake
Charles Code of Ordinances, constituting the Standard Building
Code, as revised, and all other pertinent laws or ordinances
including but not limited to the Comprehensive Zoning Ordinance,
and state and local Fire Codes as to egress, type of construction,
general arrangement, fireproofing and structural design.

I further certify that throughout the construction of the above
referenced project, periodic on-site visits shall be made by myself
or my agents, (Licensed Architect or Engineer) to help insure to
the best of our ability that the structure will be erected in
accordance with the approved plans and the requirements of the
2009 International Building Code as revised and in accordance
with all other pertinent laws and ordinances, including but not
limited to the work on foundation, footings, framework, and the

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exterior and interior envelope. If for any reason, I do not inspect
or plan to inspect this building or structure during the course of
construction, I will notify the Building Official immediately by a
certified letter.

The lack of a contract between Bergman Walls and Lifescapes makes it

impossible for this court to decide the independent contractor status of Lifescapes.

We cannot weigh the factors nor determine Bergman Walls’ control over

Lifescapes’ work. Further, the Design Services Agreement entered into by

Bergman Walls and the Design Supervision Statement create genuine issues of

material fact as to the responsibility of Bergman Walls in this matter. For these

reasons, the trial court’s granting of Bergman Walls’ motion for summary

judgment is reversed, and the case is remanded to the trial court for further

proceedings.

DECREE

The judgment of the trial court, granting the Motion for Summary Judgment

filed by Defendant Bergman Walls & Associates, Ltd. and dismissing the

Hollemans’ case with prejudice is reversed. This matter is remanded to the trial

court for further proceedings. All costs of this appeal are assessed to Bergman

Walls.

REVERSED AND REMANDED.

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