James Palmisano v. Colville Plumbing & Irrigation, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-450

JAMES PALMISANO, ET AL.
VERSUS

COLVILLE PLUMBING & IRRIGATION,
INC., ET AL.

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ON APPLICATION FOR SUPERVISORY WRIT FROM
THE FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2015-6370
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Phyllis M. Keaty, Van H. Kyzar, and Candyce G. Perret,
Judges.

WRIT DENIED.

Michael J. Remondet, Jr.

Michael R. Guidry

Jeansonne & Remondet

P.O Box 91530

Lafayette, LA 70509

(337) 237-4370

COUNSEL FOR DEFENDANTS/APPLICANTS:
Prejean and Sons Plumbing, LLC
Colony Specialty Insurance Company

Gregory E. Tonore

P.O. Drawer 52603

Lafayette, LA 70505-2603

(337) 235-5401

COUNSEL FOR PLAINTIFFS/RESPONDENTS:
James Palmisano
Melissa Palmisano

Jack E. Truitt

Pamela S. Chehardy Croft

Peter M. Gahagan

Amber L. Mitchell

The Truitt Law Firm

149 North New Hampshire Street

Covington, LA 70433

(985) 327-5266

COUNSEL FOR DEFENDANT/RESPONDENT:
Colville Plumbing & Irrigation, Inc.

KYZAR, Judge.

Prejean and Sons Plumbing, LLC (“Prejean”), and its insurer, Colony
Specialty Insurance Company (referred to collectively as “Prejean”), filed an
application for supervisory writs from a trial court judgment denying their motion
for summary judgment in a personal injury action brought by plaintiffs, James and
Melissa Palmisano. For the following reasons, we deny the writ application.

DISCUSSION OF THE RECORD

This matter arises out of events which occurred when Mr. Palmisano, a
former employee of Weatherford International, Inc., slipped and fell at work due to
the presence of water in a hallway of Weatherford’s office. In their petition, the
plaintiffs alleged that water was leaking from the men’s and women’s toilets,
which were located adjacent to the hallway where he fell, and that two plumbing
companies, Prejean and Colville Plumbing & Irrigation, Inc. (“Colville”), were
called out to repair this plumbing problem. The plaintiffs further alleged, among
other claims, that the plumbing companies were negligent in failing to repair the
septic tank; failing to take reasonable steps to warn Mr. Palmisano of the
dangerous condition; failing to properly supervise, instruct and train its employees;
and failing to take reasonable steps to maintain and ensure Mr. Palmisano’s safety.

Thereafter, both defendants moved for summary judgment. Prejean argued
that the plaintiffs would be unable to produce any factual support sufficient to
show that Prejean owed a duty to Mr. Palmisano in view of the fact that it
performed no repairs on the septic tank and that they would be unable to produce
any evidence showing that the alleged water in the hallway was caused by any
action of Prejean. Colville argued that the plaintiffs would be unable to produce

any factual support sufficient to show that it owed a duty to Mr. Palmisano based

on the fact that it was not called out to Weatherford’s office to fix the plumbing
problem until the next day.

Following an April 10, 2017 hearing, the trial court denied both motions for
summary judgment. As a result of this hearing, both defendants sought
supervisory writs from this court. Colville’s writ was denied. Palmisano v.
Colville Plumbing & Irrigation, Inc., 17-452 (La.App. 3 Cir. 8/18/17) (unpublished
writ). Prejean now seeks supervisory review of the trial court’s action in denying
its motion for summary judgment.

OPINION

Louisiana Code of Civil Procedure Article 966 provides that summary
judgment procedure is favored and that it “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). It further provides that 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). Although the burden
of proof rests with the mover, if the mover will not bear the burden of proof at trial
then he need only point out to the trial court “the absence of factual support for one
or more elements essential to the adverse party’s claim, action, or defense.”
La.Civ.Code art. 966(D)(1). Once this occurs, the burden shifts to “the adverse
party 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.

In Smitko v. Gulf South Shrimp, Inc., 11-2566, pp. 7-8 (La. 7/2/12), 94 So.3d
750, 755, the supreme court set forth the governing law relative to summary

judgment and our appellate standard of review thereof, as follows:

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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. Bonin v.
Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910;
Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342, 345
(La.1991). A motion for summary judgment is properly granted only
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show there is
no genuine issue of material fact, and the mover is entitled to
judgment as a matter of law. La. C.C.P. art. 966; Duncan v. USAA
Ins. Co., 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 546-547. A fact
is material if it potentially insures or precludes recovery, affects a
litigant’s ultimate success, or determines the outcome of the legal
dispute. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764,
765 (per curiam)(citing Smith v. Our Lady of the Lake Hosp., Inc., 93-
2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A genuine issue of
material fact is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need
for trial on that issue and summary judgment is appropriate. Hines,
876 So.2d at 765-66.

In Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per
curiam) (alteration in original), the supreme court stated:

We review a district court’s grant of summary judgment de
novo, viewing the record and all reasonable inferences that may be
drawn from it in the light most favorable to the non-movant.
Summary judgment is warranted only if “there is no genuine issue as
to material fact and [ ] the mover is entitled to judgment as a matter of
law.” La.Code Civ. Proc. art. 966(C)(1). In ruling on a motion for
summary judgment, the judge’s role is not to evaluate the weight of
the evidence or to determine the truth of the matter, but instead to

determine whether there is a genuine issue of triable fact. All doubts
should be resolved in the nen-moving party’s favor.

The plaintiffs seek damages for injuries Mr. Palmisano received as a result
of the alleged negligence of the two plumbing companies pursuant to La.Civ. Code
arts. 2315 and 2316. “Louisiana courts have adopted a duty-risk analysis in
determining whether liability exists under the facts of a particular case.” S.J. v.
Lafayette Parish Sch. Bd., 09-2195, p. 8 (La. 7/6/10), 41 So.3d 1119, 1125. Thus,
in order to prove either defendant’s liability, Mr. Palmisano must prove five

separate elements: (1) that the defendant had a duty to conform its conduct to a

specific standard of care; (2) that the defendant failed to conform its conduct to the
appropriate standard of care; (3) that the defendant’s substandard conduct was a
cause-in-fact of the plaintiff's injuries; (4) that the defendant’s substandard
conduct was a legal cause of the plaintiff's injuries; and (5) actual damages.
Pinsonneault v. Merchs. & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816
So.2d 270.

“A repairer owes a duty, arising in tort, to exercise reasonable care and skill
in the design and repair of the object to be repaired commensurate with the risk of
harm flowing from the normal use of that product.” Williams v. La. Mach. Co.,
Inc., 387 So.2d 8, 12 (La.App. 3 Cir. 1980). Furthermore, a repairman owes a duty
to third persons for the defects of an instrumentality if he “undertakes to repair” the
defect in the instrumentality and then “represents to the owner that he has repaired
the defect.” Block v. Fitts, 274 So.2d 811, 811 (La.App. 3 Cir. 1973). In Hunt v.
Ford Motor Co., 341 So.2d 614, 619 (La.App. 2 Cir. 1977), the second circuit,
citing Block, stated the following:

A repairman ordinarily owes a duty of reasonable care,
inspection and repair work when an automobile is brought to him for
repairs. If a repairman does not meet this standard and his failure to
reasonably inspect and repair, or warn of unrepaired defects, causes an
accident, the repairman is held liable for the damages occasioned by
his negligence.

Although both Block and Hunt dealt with auto mechanics, we find that it would
apply to any type of repairman, including the plumber employed by Prejean.

The evidence introduced into the record in this matter was presented in the
form of deposition and affidavit testimony. Walter Badeaux, Prejean’s plumber,
testified that he was dispatched to Weatherford on January 8, 2015, after Prejean

texted him a copy of a work order. He stated that he arrived at the location after

lunch and spoke to an employee, possibly male, at the front desk. He said that this

employee showed him the location of the restrooms and then showed him the clean
out plug, which was located near the back door of the office. Mr. Badeaux
testified that when he saw water and toilet paper coming out of the clean out plug,
he told the employee that Prejean did not possess equipment to either unstop the
main sewage line or pump the septic tank. He said that because the employee
could see the water and toilet paper coming out of the clean out plug, he did not
feel that it was necessary for him to give any further explanation about the problem.
Mr. Badeaux testified that he did not give Weatherford an invoice as there was no
charge since he did not perform any work. He stated that he was at Weatherford’s
office between thirty and forty-five minutes. He further stated that he did not see
any water on the floor when he walked down the hall to the back door.

In his affidavit, Mr. Badeaux stated that he responded to a call at
Weatherford in early January 2015. He stated that he was not in a position to see
the water flow from the problem toilets after arriving at the location. He said that
after an approximate fifteen-minute investigation, he noticed that the plumbing
problem was caused by the septic tank and that he told Weatherford’s employees
that he neither worked on nor had the equipment to work on septic tanks. Mr.
Badeaux stated that he never entered into a contract with Weatherford nor did he
represent that he could fix the septic tank. He further stated that he never saw the
overflowing toilet or the water on the floor because his investigation occurred at
the back of the building where the septic tank was located. Finally, he stated that
he did not write a work order or complete an invoice for Weatherford that day.

Debbie Fontenot, a Prejean employee, testified that Mr. Badeaux generated
no paperwork for the Weatherford job on January 8, 2015. She stated that
paperwork is usually not generated when he called and reported that he could not

do a job. With regard to the call out ticket generated by Prejean on January 8,

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2015, Ms. Fontenot testified that Elaine Breaux, another Prejean employee, wrote
on the top of the ticket, “Tank pumped.” She said that Ms. Breaux should have
written, “Tank needs to be pumped.” She explained that Prejean only handles
plumbing issues located inside a house. She said that it can clean out a small line,
but that it does not have the equipment to pump septic tanks.

Ms. Breaux testified that she wrote “Tank pumped” on the January 8, 2015
call-out ticket after she was informed by Mr. Badeaux that he told Weatherford
that it needed to have its septic tank pumped. She stated that Prejean is not
equipped to do that kind of work.

Mr. Palmisano testified that he was walking from the shop foreman’s office
back to his office when he slipped and fell due to a puddle of water, which was
located in a hall next to the women’s restroom. He stated that the puddle, which
was between one-quarter to one-half inch deep, was clear, covered nearly the entire
width of the hall, and was approximately three feet in length. Mr. Palmisano
testified that Monica Brasseaux and Blair Prejean, co-workers, ran to assist him
after hearing him fall. He said that Ms. Brasseaux told him, at that time, that a
plumber from Colville’s was there working on the septic tank. He stated that his
supervisor, Chris Broussard, walked into the hall and told him that there was also
water in the men’s restroom and that a plumber was probably pumping a balloon
into the sewer system. Mr. Palmisano testified that shortly after he fell, he saw a
plumber cross in front of a window, walking from the area of the septic tank
towards the parking lot. He stated that he then went to Mr. Broussard’s office and
filled out an accident report. Mr. Palmisano testified that the plumber was not
wearing a shirt identifying him as working for Colville and that he did not see the

plumber’s truck parked outside.

6

Ms. Brasseaux, Weatherford’s former administrator, testified that she called
two plumbers on January 8, 2015. She stated that she first called Prejean and
reported that two toilets were overflowing. She stated that Mr. Badeaux arrived
between 9:00 and 10:30 a.m. She said that he was there for no longer than ten
minutes before he came in and reported, “Sorry, There’s nothing I can do here.”
Ms. Brasseaux testified that Mr. Badeaux did not mention anything about the clean
out plug or a balloon and that he never told her the cause of the overflowing toilets.
She stated that when she told Mr. Broussard that Prejean could not perform the
work, he suggested that she call Colville because it had previously done work for
Weatherford. Ms. Brasseaux testified that after she called Colville, its plumber
arrived after 1:00 p.m. She stated that although she never saw the plumber arrive,
he called to make sure that the back gate was unlocked. Ms. Brasseaux testified
that she did not know the source of the water that caused Mr. Palmisano to fall.
She further stated that she did not know why Mr. Palmisano’s accident was related
to a plumber being on site at Weatherford’s office.

Mr. Prejean, a Weatherford employee, testified that he was sitting in his
office when he heard Mr. Palmisano fall. He stated that when he reached the hall,
Mr. Palmisano was standing and looking down at a puddle of water. Mr. Prejean
stated that the puddle was approximately nine to twelve inches in diameter and was
located in the middle of the floor. He stated that he never knew where the water
had come from and that there was no water right in front of the door to the
women’s restroom.

Mr. Broussard, Weatherford’s former distribution manager, prepared a typed
account of Mr. Palmisano’s accident on January 12, 2015. In the account, Mr.

Broussard stated, “At the time of the incident, a plumber was on location outside

attempting to clear a clogged discharge line. The plumber put a bladder (balloon)
in the line and it is speculated the bladder forced water back into the office area.”

In his deposition, Mr. Broussard testified that two toilets were clogged up in
the office on January 8, 2015, and that a plumber was on location attempting to fix
the problem shortly before Mr. Palmisano’s accident, which occurred at
approximately 2:30 p.m. He stated that he spoke to the plumber outside, who
informed him that he had unsuccessfully tried to clear the sewer line and now he
was sticking a balloon into the line in an attempt to push out the source of the clog.
Although Mr. Broussard could not recall what he did after speaking to the plumber,
he said that he did remember that the plumber told him that the balloon failed to
remove the clog in the sewer line.

Mr. Broussard testified that he was informed about Mr. Palmisano’s accident
a short time later, while he was in the shop. He stated that when he reached the
hall, he saw Mr. Palmisano standing up, and he noticed a puddle of water in the
middle of the hall, directly outside of the women’s restroom. Mr. Broussard
testified that no other water was on the floor of the women’s restroom, and
although he did not know the source of the water, he could not say for certain that
it did not come from the women’s restroom.

Mr. Broussard testified that he prepared his typed statement on the Monday,
January 12, 2015, following the Thursday accident. He stated that he speculated in
the report that the cause of the water was the plumber inserting the balloon into the
line because the balloon, as it was filled with water, would expand both forwards
and backwards, which could force water back into the already full toilet. However,
Mr. Broussard admitted that he was not aware of both toilets overflowing after the
balloon was inserted into the sewer line. He stated that he did not know who the

plumber was employed by, nor could he recall if another plumber came out that

8

same day, or if he spoke to two plumbers on January 8, 2015. Mr. Broussard
testified that the plumber he spoke to was a Caucasian, in his mid-forties, and was
approximately five foot, eight inches tall. He further stated that he did not recall
seeing toilet paper or water coming out of the clean out plug.

The dispatch tickets from Colville indicate that it was contacted by
Weatherford on January 9, 2015, at 10:20 a.m. and that its plumber, Carl Wood,
began working on the problem at 1:31 p.m., and was finished by 1:00 p.m. for a
total work time of minus .22 minutes. However, a January 12, 2015 paid invoice
from Colville indicates that Weatherford paid $300.00 for it to unstop the septic
tank from the clean out plug. A January 28, 2015 dispatch ticket indicates that the
same plumber was called out to Weatherford to perform the same job, for a total
work time of 1.22 hours. These invoices further indicate that the same plumber
was dispatched to two jobs on January 8, 2015, with the first job lasting from 12:30
p.m. to 4:30 p.m., and the second lasting from 5:00 p.m. to 6:00 p.m.

In denying both Prejean’s and Colville’s motions for summary judgment, the
trial court stated:

There’s evidence that there was a plumber working at

Weatherford at about the time that the plaintiff fell and the spill

occurred. Your folks say that the your guys didn’t even go out until
the next day.

But there’s lots of evidence that no plumber came out on the
day after Palmisano fell. And there’s Mr. Remondet’s client who says,
“Hey, our guy showed up, took a look at it, it wasn’t something we do,
and he left.”

So there’s really compelling testimony in Prejean’s favor and in
Colville’s favor, but it was - There was a plumber there. And there’s
also evidence that Prejean and Colville were the only plumbers called
that day by Ms. Brasseaux or whoever made the call.

So I don’t know how I can conclude anything except that I have
factual issues that would preclude a summary judgment for either of
you, as compelling as some of the testimony in your favor is.

And the other thing in your favor is that Colville says that they
don’t even do balloon tests; they use the jet to clean out the sewer
lines. So, yes, there’s plenty of compelling evidence that a jury may
buy, but for me to grant your motion would require me to make
credibility determinations that I’m not allowed to make at this stage of
the game.

.. . If the undisputed testimony was that Badeaux — Is that your
plumber, Badeaux?

— that Badeaux comes out and looks around, determines that it’s
cleaning the septic tank and they don’t do that, and leaves, I don’t
think he would have had any obligation to alert them that there was
water on the floor. It’s open and obvious, and he wasn’t engaged to
do anything. And I don’t think he had a duty, and duty is a question
of law.

And I could make that determination and let them out, but
there’s other evidence indicating that there was a plumber there, and
there’s evidence that there were only two called, Prejean and Colville,
and there’s lots of evidence that it wasn’t Colville who was doing the
testing on the lines. I don’t know how I’d do anything except leave
you both in.

After performing a de novo review and reviewing all reasonable inferences
in a light most favorable to the non-moving parties, we find that genuine issues of
material fact exist in regards to whether Prejean’s plumber made some effort to
unclog Weatherford’s sewer line on January 8, 2015. Although Mr. Badeaux
claims that he did nothing, he admits that he arrived at Weatherford after lunch and
that he spoke to a male Weatherford employee. Moreover, at one point, he claims
that he was only on location fifteen minutes, but in his deposition he stated that he

was there between thirty to forty minutes. Ms. Brasseaux testified that the plumber,

who she thought worked for Colville, arrived after lunch. Mr. Broussard said that

10

he spoke to a plumber shortly before Mr. Palmisano’s accident, which occurred
after lunch, and that he did not recall speaking to more than one plumber that day.
Moreover, according to Colville’s dispatch tickets, its plumber, Mr. Wood, was
employed on jobs for other clients on January 8, 2015, and it was not contacted by
Weatherford concerning its plumbing problems until the next day, January 9, 2015.
Furthermore, Prejean’s dispatch ticket includes the notation, “Tank pumped.” The
trial court correctly noted that it was impermissible for it to make credibility
determinations in deciding whether to grant the summary judgment. Accordingly,
we find no error in the trial court’s denial of Prejean’s motion for summary
judgment.
DISPOSITION

For the reasons expressed herein, we deny the supervisory writ application
of Prejean and Sons Plumbing, LLC. We assess all costs of this writ application to
Prejean and Sons Plumbing, LLC.

WRIT DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.