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Renwick v. PNK Lake Charles LLC

United States District Court, W.D. Louisiana, Lake Charles Division

April 3, 2017

TYLER RENWICK
v.
PNK LAKE CHARLES LLC

          KAY MAGISTRATE JUDGE.

          MEMORANDUM RULING

          JAMES T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE.

         Before the court is a motion for summary judgment filed by the defendant, PNK (Lake Charles) LLC, seeking dismissal of all claims by the plaintiff, Tyler Renwick. (Rec. Doc. 30). The plaintiff filed a response in opposition to the motion for summary judgment (Rec. Doc. 32), and the defendant filed a reply to the response, (Rec. Doc. 37). For the reasons expressed below, the court finds that the motion for summary judgment should be GRANTED, dismissing all claims against the defendant, PNK (Lake Charles) LLC, with prejudice.

         STATEMENT OF FACTS

         Defendant, PNK (Lake Charles) LLC ("PNK") d/b/a L'Auberge du Lac Hotel & Casino ("L'Auberge") is a limited liability company doing business in Louisiana.[1] In 2007, PNK hired general contractor John C. Myers d/b/a John C. Myers Distributing ("JC Myers") for maintenance services related to cleaning exhaust hoods and kitchen ovens at L'Auberge in Lake Charles, Louisiana.[2] Prior to being hired, JC Myers brought in PB Technology, LLC ("PB") to make a bid to perform kitchen vent cleaning services at L'Auberge.[3] L'Auberge accepted the bid, and JC Myers and PB started performing the cleaning services at L'Auberge in August, 2007.[4]

         PB is located in Austin, TX and performs kitchen vent cleaning services for clients across four states.[5] PB sends its work crews from its Austin location to each job site via PB vans and trailers, which carry the necessary equipment and tools.[6] Plaintiff, Tyler Renwick ("Renwick"), a resident of Texas, was an employee of PB and one of its crew members for the services PB provided at L'Auberge.[7]

         At the L'Auberge hotel, kitchen ventilation equipment was located inside the restaurant kitchens and on the roof and side of the hotel.[8] PB's work was performed at night after the hotel's restaurant kitchens closed for the evening.[9] PB brought their own cleaning equipment and supplies and performed their work unsupervised by L'Auberge personnel.[10] Part of PB's work performance at L'Auberge required PB crew members to access kitchen ventilation equipment located on the roof and one side of the hotel.[11] To access the rooftop vents, PB crew members climbed a ladder which was tied to the railing of the roof of the adjacent L'Auberge casino vessel and leaned against the hotel structure so that PB crew members could access the roof of the hotel.[12] The ladder crossed a two to three foot gap between the casino vessel and the hotel structure.[13]

         In the early morning hours of July 14, 2015, Renwick climbed a ladder from the roof of the casino vessel to the roof of the hotel structure to turn off a ventilation fan located on the roof of the hotel structure.[14] Before completing his transfer from the ladder to the roof of the hotel structure, Renwick fell to a gangway approximately 50 feet below.[15]

         Renwick suffered injuries from the fall and brings claims against PNK on theories of vicarious and direct liability under Louisiana tort law for the injuries he sustained from using an alleged defective ladder attached to the railing on the roof of the casino vessel.[16]

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[17] "A fact is material only when it might affect the outcome of the suit under the governing law, and a fact is genuinely in dispute only if a reasonable jury could return a verdict for the non moving party."[18] The moving party bears the initial burden of showing that there is an absence of a genuine issue of material fact.[19] After such a showing, the burden shifts to the non-movant to show that there is a genuine factual issue for trial by citing specific evidence in the record, beyond the pleadings, that supports its assertions that a material fact is genuinely in dispute.[20]"Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial."[21] The court will construe all evidence in the light most favorable to the non moving party, but will not infer the existence of evidence not presented.[22]

         LAW AND ANALYSIS

         The plaintiffs claims are based in theories of vicarious and direct liability under Louisiana tort law. This court has subject matter jurisdiction based on the diversity of citizenship of the parties and the amount in controversy.[23] As a diversity action brought within the state of Louisiana, the court must apply Louisiana's choice-of-law rules.[24] Under Louisiana law, delictual and quasi-delictual claims are generally governed by the law of the state whose policies would be most seriously impaired if its law were not applied.[25] The work performed by the plaintiff for the defendant was done on property within the state of Louisiana, the accident happened in the state of Louisiana, and the defendant is a company doing business in the state of Louisiana. The court believes these facts speak to the policy concerns cited in La. Civil Code art. 3542 in support of applying Louisiana law. Thus, the court considers this motion for summary judgment under Louisiana law.

         The plaintiff claims that PNK is vicariously and directly liable for his injuries. Specifically, Renwick claims that PNK did not provide him with a safe means of accessing the kitchen vents on the roof of the hotel structure because the ladder PNK provided was defective. The plaintiff also claims that PNK is liable for a defect in the ladder which was under PNK's custody or "garde" and that PNK failed to protect the employees of PB by providing a safe work environment on its premises. PNK claims that it had no duty to supervise the employees of an independent contractor and did not provide PB with the defective ladder used by Renwick. PNK also claims that it did not have garde over the ladder, and that climbing ladders is not inherently dangerous.

         I. Vicarious Liability: Did PNK Owe Renwick a Duty?

         PNK claims that it had no duty to Renwick because Renwick was the employee of an independent contractor. PNK maintains that it did not have operational control over the work performed by PB employees, and furthermore, climbing a ladder is not an inherently dangerous activity. Renwick admits that he was an employee of PB, but avers that PNK had control over the method and means in which PB employees performed their work and/or PNK gave implied authorization for PB's use of a defective ladder.

         Under Louisiana law, "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."[26] A building owner is generally not liable for the negligence of an independent contractor in the performance of work unless the building owner controlled the work or the work was inherently dangerous.[27] Louisiana courts consider the following factors in the independent contractor analysis: 1) "the existence of a contract for the performance of a specific job, " 2) "payment of a fixed price for the work, " 3) "employment by the contractor of assistants who are under his control, and" 4) "the furnishing of tools and materials and the right to control the conduct of the work while in progress."[28]

         A. Independent Contractor

         Looking to the first two factors, neither party has provided evidence that written contracts existed prior to Renwick's accident. However, it is undisputed that PB was hired to perform the discrete job of cleaning the kitchen ventilation equipment at the L'Auberge hotel.[29] The testimony of Paul Barnes, on behalf of PB, and JC Myers makes clear that PB was a subcontractor for JC Myers for the work PB performed at L'Auberge.[30] Regarding the third factor, it is undisputed that Renwick was an employee of PB who performed work for PB at L'Auberge.[31] Finally, as to the fourth factor, it is undisputed that PNK was not expected to supervise the details of PB's work performance, and that PB was expected to furnish their own equipment.[32]

         The deposition testimony of Paul Barnes, on behalf of PB; the operations manager of PB, Robert Gee; and JC Myers sheds light on the nature of this last factor. Paul Barnes described how PB determines the proper tools and equipment required to complete each job:

Every job that we do, every new customer that we have, the first thing that has to happen is, I have to do the initial inspection. In that initial inspection, I look for all aspects of the job. We need a 10-foot ladder; we need a 3-foot ladder; we need additional hoses; we need power washers.
Then on - the first person to go out to the new job with the crew is going to be Robert. He goes out to every new job. And then he assesses the situation, what we need and what we don't need. The guys have a real bad habit of pulling the trailer - of loading the extension ladder a little bit too far back, so when they back up, it pokes a hole in the trailer. So when they leave, they leave with the specific amount of equipment that they are going to need. You don't give them an extension ladder if they are going to go to a Whole Foods. And it's not necessarily because it would be broken, but -but we check and make sure they have everything that they need before they leave to go on the job. It's part of our work order.[33]

         The general contractor, JC Myers, also testified that he expected his subcontractor, PB, to provide correct tools and equipment for PB's employees.[34] The operations manager, Robert Gee, described the manner in which PB conducts its work and assigns tasks, with a hierarchical component:

Q: Okay. You got your team leader. What are his responsibilities on a job?
A: His responsibilities, if I'm not on the job, is to give instructions to everybody, tell them what they're going to be doing, indicate what job - which hoods are going to be done, take care of all the pictures, all the paperwork. And like I said before, a glorified gofer.
Q: Okay. And then you've got your technicians, I guess you call them-
A: Yes, technicians.
Q: - doing what?
A: Well, they're doing - they're getting up in there and they're scraping the grease out or scrubbing it down or setting up the equipment or hanging up the plastic or - you know, doing all that kind of stuff. Getting the job site set up.[35]

         Paul Barnes also testified to the manner in which PB's crews were run at the L'Auberge job site:

Only certain ones are allowed to go up on a roof. If they are not trained to be on the roof, they are not going to go up on the roof. And so as far as staging, you know, again, they would stage -staging would involve for us deciding who is going to do what and then setting up the equipment outside and inside, pulling filters. So you have those things to do before somebody would go up on a roof.
And the team leader - which at that time, we actually had two people in training. They could have easily been the team leaders, but the older team leader ran. And typically, it's the team leader that will run up there and turn off the fans. We don't send people in any area of work that they have not already been trained on. If that answers the question.[36]

         Under the four-factor analysis, Tyler Renwick was the employee of a subcontractor to a general contractor performing services for PNK at L'Auberge. As a PB employee, he was under PB supervision while on the job, and PB was expected to provide the proper tools and equipment to complete the job. As such, the court considers whether PNK is liable as a building owner for the negligent acts of its independent contractor.

         Under Louisiana law, a building owner may only be held liable for the negligent acts of an independent contractor under two exceptions: 1) if "the person for whom the work is performed gives express or implied authorization to an unsafe practice or has the right to or exercises operational control over the method and means of performing the work, " or 2) if "the work undertaken by the independent contractor is inherently or intrinsically dangerous."[37]

         B. Operational Control or Authorization to an Unsafe Practice

         i. Operational Control

         Under the first exception, Renwick must show either that PNK had operational control or that PNK gave express or implied authorization to the unsafe practice of using a defective ladder. "To find operational control[, ] '[t]here must be such a retention of right of supervision that the contractor is not entirely free to do the work in his own way.'"[38] "Such operational control must consist of more than the simple power to order a stop to or resumption of work, the right to inspect the work or receive progress reports, the right to make non-binding recommendations, or the right to dictate 'alterations or deviations.'"[39] "The presence of a company man or representative, even one making inspections, is not sufficient to put the principal in operational control."[40]

         PNK claims that it did not have operational control over the work PB performed at L'Auberge. Neither party disputes that PNK was not expected to supervise PB employees during the course of their performance while on the L'Auberge property.[41] Renwick, however, denies that PNK had no control over the method and means of performing the work because PNK "specified the precise manner of access [between the structures], provided the means of access, and controlled entry to and from the casino vessel rooftop."[42] Renwick has not pointed to evidence that rises to the level necessary to find that there is a genuine dispute as to whether PNK exercised operational control.

         The first two assertions are closely related. First, for the purposes of this motion, PNK does not dispute that during an initial walkthrough of the premises in 2007, [43] a L'Auberge employee identified a point of access to the hotel roof from the rooftop of the casino vessel and identified that a ladder was used to traverse the two structures.[44] Renwick, however, contends that PNK required PB employees to use the specific ladder that was on the roof at that time, but does not cite to evidence showing that PNK required this. "[Unsubstantiated assertions.. .do not adequately substitute for specific facts showing a genuine issue for trial."[45] In fact, there is evidence to the contrary. PNK cites to the deposition testimony of JC Myers regarding the proposition that PNK required anyone to use the ladder that they saw on the roof that day:

Q: And when you said you looked at it and you said you hope you're not using it, did anybody suggest to you that you had to use that ladder?
A: No.[46]

         The evidence presented shows, at most, that a L'Auberge employee made a non-binding recommendation to use the ladder that was on the roof at that time. This alone does not rise to the level of operational control. This possible recommendation, however, speaks to Renwick's second assertion that PNK provided the ladder for PB to use. PNK denies this claim.

         PNK cites to the deposition testimony of Anthony Long that PNK had no knowledge or documentation of any ladders on the roof of the casino vessel.[47] Paul Barnes also testified that PB did not know where the ladders that they found on the roof came from.[48] In its motion for summary judgment, PNK points to evidence that shows PB considered whether and what type of ladders, including extension ladders, were necessary when determining what equipment they needed to bring in order to complete a job.[49] The defendant also cites Renwick's own testimony that he did not know who owned the ladder or who had set it up, but rather followed the direction of his supervisor to use the ladder they found on the roof:

Q: Okay. The first time you were on that roof, do you know who set up the ladder in the place where it was located?
A: No, sir.
Q: Okay. Do you know if it could have been there from the last time PB did its work?
A: I mean, anything's possible. But it was - it was always set up there. You know, when we were there, it was always - you know, it was always there. That was just the way we accessed the roof. We didn't have to mess with it or anything. It was just provided for us.
Q: Well, how do you know it was provided by - when you say "provided for us, " I assume you mean provided by L'Auberge.
A: I mean, that, I don't know. I can't speculate who installed that and for what reason, but that was the way - the preferred method, from what I was told, to get onto that roof.
Q: Okay. Do you know if Robert Gee had ever inquired about any other alternate methods of getting on the roof?
A: That, I couldn't tell you. I just- when he taught me how to access the roof, I took the route he gave me and I didn't ask questions. I just did it as I was told.[50]

         PNK also cites testimony of JC Myers who believed PB had been bringing their own ladder for at least a year, and did not expect PB to use the ladder that they saw on the rooftop during his initial walkthrough:

A: There was - the one time I went up there and looked, there was part of- well, first there was an old wooden ladder. And I told them that had to go, you know. It was just against OSHA. And then for a while, they were bringing their own extension ladder up there.
Q: Okay.
A: My guys.
Q: PB?
A: Yeah. They were bringing their own extension ladder up there, and one of the guys dropped half of it overboard... .And I don't know where the other one came from. I just know they had a ladder up there that they were using.
Q: Do you know over what period of time PB was bringing their own ladder?
A: I can't give you a definite time. At least a year. I don't know.[51]
Q: All right. And how was it - how did you become aware that PB had brought their own extension ladder for a while?
A: Robert told me about the incident where one of the guys dropped half of it overboard. That's the only - Q: So you knew they had brought it because he told you that they had dropped half?
A: They always have got one on the van. They'll carry a 6 foot, 8 foot folding ladder, and then they'll carry an extension ladder. Because you know, you have to get on the roof of the buildings. We've always got an extension ladder.[52]

         Paul Barnes also testified that PB had used its own ladder once to transfer between the casino vessel and the hotel rooftop:

Q: Okay. Had PB Technology ever brought their own ladder to use for transfer between the L'Auberge casino and the hotel?
A: One time.
Q: And what kind of ladder was that?
A: Just a regular extension ladder. And it would have been secured pretty much the same way that one is, but it would have been both parts.[53]

         PNK also cites the deposition testimony of Paul Barnes where he discussed PB's decision to use the ladders they found on the roof after an initial proposal to PNK that a permanent catwalk be constructed was rejected:

Q: Okay. And then between September, October of 2007 forward, what other communications, if any, were there with John Myers or someone else at L'Auberge about roof access; if anything?
A: Right. I don't recall. I think after that, we just ran up and down the ladder. It didn't seem to be that big of a deal. I mean, even back in 2010, I'm still old and fat, and depending on - you know, where the ladder - where the ladders came from or not, they were - they seemed fine. The wooden one wasn't. That was in the very ...

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