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Falcon v. Surcouf

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017





          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson


         Plaintiff, 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.


         This is 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 personal injuries.

         In his 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.[1] 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.

         After the parties conducted sufficient discovery, defendants Dr. Surcouf and State Farm moved for summary judgment.[2] 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.

         In 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.

         Dr. 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.[3]

         Dr. 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.[4]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.[5] 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.

         In his 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 surgery.[6]

         In 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.

         Golemi 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 projects.[7]

         Golemi 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 that area.

         Concerning 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.

         Plaintiff 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.

         In 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.

         Plaintiff 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 ...

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