Court: Louisiana Court of Appeal; December 26, 2017; Louisiana; State Appellate Court
Raymond Falcon, a plaintiff and plumber, appeals the summary judgment favoring Dr. Jeffrey Surcouf and State Farm Fire Casualty Insurance Company regarding personal injuries he sustained while working on a home construction site owned by Dr. Surcouf. The incident occurred on December 4, 2013, when Falcon fell from a staircase lacking a temporary railing, leading to serious injuries. Falcon alleges that Dr. Surcouf, acting as his own general contractor, failed to maintain a safe work environment.
Initially filed in the 24th Judicial District Court for Jefferson Parish on September 22, 2014, Falcon's suit asserted that Dr. Surcouf was negligent in keeping the premises free from dangerous conditions. On June 25, 2015, Falcon amended his petition to include additional defendants: Juan Valladares, Sr., the framing subcontractor, and Rick Golemi, the on-site manager. He claimed that Valladares failed to construct a required temporary railing and that Golemi should have recognized and addressed the unsafe condition.
Defendants moved for summary judgment, arguing multiple points, including that the lack of a handrail was an open and obvious hazard, that Dr. Surcouf was unaware of the need for a handrail, and that OSHA regulations did not apply in this context. They also contended that as a homeowner, Dr. Surcouf was not liable for the subcontractor's negligence or for actions of non-employees. In support of their motion, Dr. Surcouf's deposition was presented, detailing his lack of experience as a general contractor and his frequent oversight of the construction.
The court found that genuine issues of material fact existed, making summary judgment inappropriate. Consequently, the trial court's judgment is reversed, and the case is remanded for further proceedings.
Dr. Surcouf's cousin, Rick Golemi, served as site supervisor for the home construction project, while Dr. Surcouf's mother, Sue Surcouf, managed administrative tasks. Dr. Surcouf contracted with several subcontractors, including plaintiff's company, Continental Plumbing, which he had previously utilized for another home build. He employed Golemi Homes, the family business, as the general contractor for his home in Kenner and contracted Valladares for framing without a formal contract, relying instead on a proposal submitted to Golemi. After an accident, a temporary railing was installed within a week, though Dr. Surcouf was not aware of a requirement for such a railing during construction and assumed Valladares would comply with local regulations. He acknowledged that a stair railing must be in place before a final inspection for occupancy.
In his deposition, Dr. Surcouf noted a conflict over the timing of plumbing work, which was allowed to proceed before framing completion due to plaintiff's impending knee surgery. Golemi, who holds a general contractor's license, stated he would charge Dr. Surcouf a 20% fee for general contracting services, which he felt obligated to provide as family. An agreement was made for Golemi to supervise at a rate of $35.00 per hour, working typically four days a week, while Sue Surcouf acted as a 'superintendent' with greater authority. Golemi noted that subcontractors, including the plaintiff, had keys to the property due to longstanding relationships with Golemi Homes. He outlined a typical construction sequence, emphasizing that framing must be completed before the installation of temporary stair railings, followed by other subcontractor activities.
Golemi testified regarding his dual role in scheduling subcontractors alongside Sue Surcouf, indicating he had the plaintiff, Ray, scheduled to start work earlier than planned, leading to unpreparedness. Golemi recalled a call from Valladares questioning the plaintiff's early presence at the site and confirmed he authorized the plaintiff to start work in areas where framing was complete. He clarified that Dr. Surcouf did not provide him tools, dictate his working hours, hire or pay subcontractors, and that payments from Dr. Surcouf were personal checks from a construction-related account.
In opposition to the defendants' motion for summary judgment, the plaintiff argued there were genuine factual disputes regarding Golemi's employment status with Dr. Surcouf and potential liability under respondeat superior for Golemi's negligence concerning the absence of a temporary stair railing. The plaintiff contended that the staircase's condition posed a fact-intensive question unsuitable for summary judgment. Valladares’ deposition supported the plaintiff's position, stating Golemi was the general contractor and that he typically installed a temporary railing before other subcontractors began work. He claimed a railing was always present prior to the plaintiff's fall.
Sue Surcouf testified she primarily performed secretarial tasks and confirmed that a handrail was absent between the first and second floors before the accident. She had requested a temporary balcony railing due to safety concerns for visiting grandchildren but did not ask for a handrail on the stairs, which her family used without issue.
Additionally, an affidavit from expert Edward Fogarty emphasized that a general contractor is responsible for ensuring a safe working environment and managing subcontractor scheduling, asserting that scheduling is critical as one incomplete task can endanger others on site.
OSHA mandates guardrails or safety nets for work above six feet, indicating a stair handrail was necessary during the construction of Dr. Surcouf's home. Mr. Fogarty testified that the general contractor should have prohibited subcontractors from entering the home until framing was complete, emphasizing that allowing subcontractors to self-supervise and navigate a rail-less staircase was unsafe. He asserted that if Dr. Surcouf and others had acted reasonably, the plaintiff would not have been permitted to work and would not have fallen. On December 6, 2016, the trial judge granted summary judgment in favor of Dr. Surcouf and State Farm, dismissing the plaintiff's claims with prejudice. The trial judge concluded that Dr. Surcouf did not control the subcontractors and was not liable for their negligence, noting there was no authorization of unsafe practices and that the lack of a handrail was an open and obvious hazard acknowledged by the plaintiff. The plaintiff appealed, arguing that genuine issues of material fact existed regarding the hazard's obviousness and whether Dr. Surcouf authorized unsafe practices by providing subcontractors with construction keys and not properly scheduling work. The plaintiff's liability claims are based on Civil Code articles La. C.C. art. 2317 and La. C.C. art. 2317.1, which hold an owner accountable for damages caused by their property only if they knew or should have known of a defect and failed to exercise reasonable care. La. C.C. art. 2322 further stipulates that an owner is liable for damages from a building's ruin due to neglect or construction defects, contingent on the owner's knowledge or reasonable care regarding the defect.
The court retains the ability to apply the doctrine of res ipsa loquitur in suitable cases. According to Louisiana Civil Code Article 2322, to hold a building owner liable for injuries stemming from a building's vice, ruin, or defect, the plaintiff must establish five elements: (1) ownership of the building; (2) the owner's knowledge or reasonable care to know of the defect; (3) that the damage could have been prevented through reasonable care; (4) the owner's failure to exercise such care; and (5) causation. Jurisprudence mandates that the defect must create an unreasonable risk of harm. To evaluate if a defect poses such a risk, the Louisiana Supreme Court utilizes a risk-utility balancing test that considers four factors: (1) the utility of the condition, (2) the likelihood and magnitude of harm, (3) the cost of prevention, and (4) the nature of the plaintiff's activities regarding social utility or inherent danger. Notably, a homeowner might not be liable for protecting against open and obvious hazards. In a specific case, the trial judge concluded that the absence of a handrail was an 'open and obvious' condition, thus Dr. Surcouf owed no duty to the plaintiff. The case of Broussard illustrates this principle, where the Supreme Court examined whether a minor elevator misalignment constituted an unreasonable risk of harm or merely an open and obvious hazard, ultimately questioning the appellate court's determination of the defect's danger.
The Louisiana Supreme Court, in Broussard, upheld the jury's finding regarding unreasonable risk of harm, reversing the Court of Appeal and reinstating the District Court's judgment that aligned with the jury's verdict. The Court emphasized that determining whether a defect is unreasonably dangerous requires a nuanced examination of various factual considerations unique to each case. To assist fact-finders, the Court established a risk-utility balancing test, weighing the severity of harm against societal rights, the utility of the object, and the feasibility of repairs. The Court noted the absence of a definitive rule regarding the 'open and obvious' doctrine, stressing that each case requires a fact-based analysis. Concerns were raised about the potential for reviving the assumption of risk doctrine if recovery is denied based on a defect's obviousness. The ruling clarified that determinations about unreasonable risk of harm are complex issues suited for juries, dependent on the specifics of each case. It was also explained that while summary judgment is possible when no genuine issue of material fact exists, it is inappropriate in instances where material facts regarding the defect’s dangerousness are contested. In the case at hand, the plaintiff presented sufficient evidence to suggest that the condition in question was not universally recognized as dangerous, as indicated by the family’s prior safe use of the stairs and the lack of requests for safety modifications.
Defendants contended that plaintiff bore sole responsibility for his injuries due to his awareness of the absence of a temporary handrail on the stairway. However, the Louisiana Supreme Court's ruling in Rodrigue v. Baton Rouge River Ctr. clarified that a plaintiff's knowledge of a hazardous condition does not completely bar recovery; rather, it can be considered by a trier of fact when determining the plaintiff's fault percentage. Plaintiff also challenged the trial court's failure to recognize that Dr. Surcouf, as the general contractor, had a duty to maintain safe premises and breached that duty by permitting subcontractors to operate without adequate supervision or scheduling. Generally, a building owner is not liable for an independent contractor's actions, but exceptions exist if the owner exercises control over the contractor's methods or authorizes unsafe practices. Plaintiff presented conflicting evidence regarding who acted as the general contractor, raising a genuine issue of material fact regarding responsibility for the installation of a temporary handrail and the scheduling of subcontractors. Additionally, an expert witness affidavit indicated that Dr. Surcouf's oversight practices constituted unsafe behavior. Consequently, the trial court's summary judgment was deemed inappropriate due to these unresolved factual issues, leading to a reversal and remand for further proceedings. Defendants also filed a third-party demand against the framing subcontractor Valladares and had a prior motion for summary judgment that was postponed for discovery.
The trial judge recused himself, leading to the assignment of a new judge. On August 18, 2016, defendants renewed their motion for summary judgment, supported by a supplemental memorandum citing additional discovery since the case reallocation. Dr. Surcouf testified about his familial connection to Golemi Homes and clarified that Golemi Homes was not the general contractor for the Metairie home in question, as Golemi passed away before its construction. Evidence indicated that Golemi Homes is a distinct entity from Rick Golemi Homes, L.L.C. Dr. Surcouf mentioned that Golemi initiated contact with Valladares for a bid based on past collaborations. After the accident, conversations among various parties suggested a consensus to install a temporary railing, which Golemi did after the plaintiff's fall. The plaintiff confirmed he had permission from Golemi to start plumbing work in the home. Golemi explained that Valladares addressed the proposal to him, likely due to prior acquaintance as a general contractor. The motion for summary judgment included deposition testimony showing that HVAC workers were present before the accident. Dr. Surcouf obtained a construction permit and identified himself as the general contractor. The trial judge referenced a similar case, Loftus v. Kuyper, which determined a homeowner was not liable for a subcontractor's negligence concerning an undiscoverable defect. However, this case involved Dr. Surcouf's direct negligence for permitting unsafe practices, distinguishing it from Loftus. The documentation confirmed Golemi's installation of the railing occurred after the plaintiff's fall, indicating multiple factual issues regarding the relationship and liability between Dr. Surcouf and Golemi.
