APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 742-693, DIVISION
"D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, RAYMOND FALCON John A.
Venezia, Julie O'Shesky
Salvador M. Brocato, III COUNSEL FOR DEFENDANT/APPELLEE, DR.
JEFFREY SURCOUF & STATE FARM FIRE AND CASUALTY COMPANY,
Thomas G. Buck
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Marc E. Johnson
FREDERICKA HOMBERG WICKER, JUDGE
Raymond Falcon, appeals the granting of summary judgment in
favor of defendants, Dr. Jeffrey Surcouf and State Farm Fire
& Casualty Insurance Company. For the following reasons,
we find that genuine issues of material fact exist and that
summary judgment is not appropriate in this case.
Accordingly, we reverse the trial court judgment and remand
this matter for further proceedings.
AND PROCEDURAL BACKGROUND
a suit for personal injuries sustained by plaintiff-plumber,
Raymond Falcon, while performing plumbing work during the
construction of a new home owned by defendant Dr. Jeffrey
Surcouf and insured by State Farm. On September 22, 2014,
plaintiff filed suit in the 24th Judicial District
Court for the Parish of Jefferson against Dr. Surcouf and
State Farm alleging that, on December 4, 2013, while
performing plumbing work at the home, he fell from the
landing of a staircase leading to the second floor which
lacked a temporary stair railing, resulting in serious
petition, plaintiff alleged that Dr. Surcouf acted as his own
general contractor on the construction project and failed to
exercise reasonable care in keeping the premises free from
unreasonably dangerous conditions and defects. Plaintiff
alleged that Dr. Surcouf, as owner of the home and the
individual acting as the general contractor during the
home's construction, is liable to plaintiff for his
injuries. On June 25, 2015, plaintiff filed a supplemental
and amending petition to name as additional defendants, Juan
Valladares, Sr., the framing subcontractor, and Rick Golemi,
who plaintiff identified as the "on-site manager"
for the construction project. In his supplemental petition,
plaintiff alleged that Valladares was responsible for the
construction of the staircase and should have constructed a
temporary railing for the safety of other workers. Plaintiff
further alleged that Golemi, in the exercise of reasonable
care, should have noticed that the stairs lacked a temporary
handrail during the construction and remedied the unsafe
condition. Plaintiff contended that all defendants violated
Occupational Safety and Health Administration (OSHA)
regulations, which requires an "alternative fall
protection" plan for residential construction projects.
the parties conducted sufficient discovery, defendants Dr.
Surcouf and State Farm moved for summary
judgment. Defendants argued that (1) the lack of a
handrail on the stairs at issue was an open and obvious
condition for which defendants are not responsible; (2) there
is no evidence to show that Dr. Surcouf knew or should have
known about the need for a handrail; (3) OSHA regulations
concerning handrails only apply between employers and
employees and, thus, do not apply in this case; (4) Dr.
Surcouf, as the homeowner, is not responsible for any
negligence or actions of subcontractor Valladares; (5) Dr.
Surcouf, as homeowner, is not responsible under
respondeat superior for Golemi's actions because
Golemi was not his employee; and (6) a homeowner constructing
his own private residence is not held to the same regulatory
standards as a licensed general contractor and Dr. Surcouf
owed no duty to plaintiff under the facts of this case.
support of their motion for summary judgment, defendants
attached Dr. Surcouf's deposition testimony. Dr. Surcouf
testified that he purchased a lot of land in Metairie to
construct a home and that he obtained a policy of
builder's risk insurance with defendant, State Farm. He
did not retain a general contractor for the construction. Dr.
Surcouf testified that he is a neonatologist and has never
acted as a general contractor prior to this project. He
testified that he visited the house very often, nearly every
day, to check on the progress of construction. He further
testified that his cousin, Rick Golemi, acted as a site
supervisor, and his mother, Sue Surcouf, handled
administrative work in connection with the project.
Surcouf contracted individually with multiple companies to
act as subcontractors for various work to be completed on the
home. He testified that he previously used Continental
Plumbing, plaintiff's company, years prior when he built
a home in Kenner and, further, that plaintiff performed
plumbing work for Dr. Surcouf's family construction
business for years. When Dr. Surcouf built his home in
Kenner, he used the family business, Golemi Homes, as the
general contractor, to build the home.
Surcouf testified that he also contracted with Valladares,
the framing contractor, to frame the entire exterior and
interior of the home. Dr. Surcouf did not have a formal
contract with Valladares. Rather, Valladares submitted a
proposal/bid for the work, which was addressed to
Golemi's attention.If Dr. Surcouf had any issue with the
framing, he would contact Valladares directly. He does not
recall a temporary railing present prior to the accident at
issue but testified a temporary railing was installed within
approximately one week after the accident. Dr. Surcouf
testified that he was unaware of any requirement to have a
temporary stair railing during construction and would have
relied on Valladares to construct any staircase required by
local rules. He testified that he is aware generally that a
stair railing must be installed prior to a final Parish
inspection to occupy the home.
deposition, Dr. Surcouf recalled an issue where plaintiff
wanted to begin the interior plumbing work before Valladares
finished the interior framing. Dr. Surcouf testified to his
belief that plaintiff discussed the issue with either Golemi
or his mother Sue Surcouf and that plaintiff was allowed to
enter the residence sooner than anticipated in light of
plaintiff's upcoming scheduled knee
further support of their motion for summary judgment,
defendants attached the deposition of Golemi, who testified
that he has a general contractor's license under his
company name Rick Golemi Construction, LLC. Golemi testified
that at some point Dr. Surcouf asked him if he would be the
general contractor on the home construction project. Golemi
told Dr. Surcouf that, as general contractor, he charges a
20% fee, which would have been significant given the size of
Dr. Surcouf's home. He explained to Dr. Surcouf that, if
he served as the general contractor for the project, he would
be responsible to warranty certain component parts of the
house, such as the foundation, for five to ten years by law.
Golemi testified that he felt obligated, essentially, to help
Dr. Surcouf build the home and stated, "you're my
cousin. Your dad and your grandpa and your uncle taught me
how to do this." He testified that he and Dr. Surcouf
agreed on a rate of $35.00 per hour for his time to supervise
the construction. Golemi testified that he attempted to stop
at the house every day, but was most certainly at the site
four days per week. Typically, he worked between six and
fifteen hours per week on the job, and would verbally relay
his hours to Sue Surcouf or Dr. Surcouf to get paid.
described Sue Surcouf as a "superintendent" of the
project, who had more decision making authority than he did.
He testified that Sue Surcouf visited the construction
project approximately three to four times per week to observe
the progress. Golemi testified that all subcontractors,
including plaintiff, had their own construction keys to the
house because the family's construction business, Golemi
Homes, had known most of the subcontractors for years and the
same construction key lock was used on many construction
testified to the order in which home construction typically
progresses. He stated that in all jobs on which he is the
general contractor, the framing contractor finishes first,
then places the temporary stair railing to the second floor,
and thereafter the other subcontractors begin work. Although
Golemi testified that Sue Surcouf was responsible for the
scheduling of subcontractors, he also indicated that he was
involved in the scheduling, stating "I had Ray
[plaintiff] scheduled" after Valladares. Golemi
explained that plaintiff began work eight days sooner than
scheduled and that "we were not ready for him."
Golemi recalled a phone call from Valladares asking why
plaintiff was at the house prior to the framing completion.
Golemi stated that he told Sue Surcouf that she could tell
plaintiff to enter the home to begin "roughing in"
the kitchen downstairs because the framing was complete in
his relationship with Dr. Surcouf, Golemi testified that Dr.
Surcouf did not provide him any tools for his job; he did not
control what hours Golemi worked or went to the house; he did
not hire any of the subs; he did not pay the sub; or material
suppliers; and the checks he received from Dr. Surcouf were
personal checks paid to him directly out of a personal
checking account tied to the construction account.
filed an opposition to defendants' motion for summary
judgment, arguing that genuine issues of material fact exist
as to whether Golemi was Dr. Surcouf's employee and
whether Dr. Surcouf would be responsible under a theory of
respondeat superior for Golemi's negligence in
failing to notice and remedy the lack of a temporary stair
railing when, from his experience as a general contractor, he
knew that a temporary stair railing should be present prior
to other subcontractors beginning work. Plaintiff further
argued that the question of whether the condition of the
staircase at issue is an open and obvious risk of harm is
fact-intensive and not proper on summary judgment.
support of his opposition to defendants' motion for
summary judgment, plaintiff attached Valladares'
deposition testimony, wherein he stated that he understood
that Golemi was the general contractor on the job at issue
because he primarily dealt with Golemi on the project.
Valladares testified that at the time of plaintiff's
fall, he had completed approximately 95% of the interior
framing work in the home and, further, that he had in fact
installed a temporary safety railing at some point prior to
the accident at issue. He testified that he typically
installs the temporary rail before any other subcontractors
begin work. He testified that, to his knowledge, there was
never a time where the temporary handrail was not present
during the construction.
also attached the deposition of Sue Surcouf, who testified
that she is Dr. Surcouf's mother and that she handled
mostly secretarial work during the home's construction,
such as answering phone calls and ordering materials. She
testified that a handrail was never placed on the stairs
between the first and second floor prior to plaintiff's
fall. She testified that, approximately one week before the
accident, she asked Valladares to construct a temporary
balcony railing on the second floor, which overlooked the
first floor, because her grandchildren planned to come visit
to see the progress of the home and she felt it was unsafe to
not have a balcony railing on the second floor. She testified
that she went up and down ...