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Lincoln v. Acadian Plumbing & Drain, LLC

Court of Appeals of Louisiana, Fifth Circuit

May 16, 2018

MARILYN LINCOLN AND DONALD LINCOLN, JR.
v.
ACADIAN PLUMBING & DRAIN, LLC, ET AL

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 741-586, DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, MARILYN LINCOLN AND DONALD LINCOLN, JR. Leo J. Palazzo Jason J. Markey

          COUNSEL FOR DEFENDANT/APPELLEE, ACADIAN PLUMBING & DRAIN, LLC, ET AL James J. Kokemor

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

          MARC E. JOHNSON JUDGE.

         Plaintiffs appeal the granting of summary judgment in favor of Defendants, dismissing their lawsuit with prejudice. For the following reasons, we reverse.

         FACTS & PROCEDURAL HISTORY

         In 2013, homeowners, Donald and Marilyn Lincoln, hired Defendant, Acadian Plumbing & Drain, LLC ("Acadian"), to perform plumbing work under the slab of their home at 1701 Disney Drive in Metairie. Specifically, Acadian was hired to tunnel beneath the house and replace the drain lines. Midday on September 3, 2013, approximately one to two weeks after Acadian began work, Mrs. Lincoln walked outside her home and fell into the hole that had been dug by Acadian to access the pipes under the house. Mr. Lincoln and his son, Donald Lincoln, Jr. ("Donald"), were inside the home when they heard screaming and rushed outside to find Mrs. Lincoln in the hole. They lifted her out of the hole, and she was taken by ambulance to the hospital with an injury to her left hip or leg, which required surgery.

         In August 2014, Mrs. Lincoln and her son, Donald, filed suit for damages against Acadian and its insurer, Liberty Mutual Insurance Company, alleging Acadian was negligent in failing to sufficiently secure or barricade the hole and in failing to warn of the danger. The petition alleged that Mrs. Lincoln fell into a hole that "bordered the walkway leading to the front porch area" and that Acadian "placed a temporary border and/or barricade consisting of tape that did not border the hole in its entirety, specifically the area that bordered the walkway leading to the front porch area." The petition further alleged that Acadian covered the subject hole with "temporary plywood" that was "thin, worn, and/or rotten and did not cover its hole in its entirety" and that, as Mrs. Lincoln walked to the front porch of her residence, "suddenly and without warning, the plywood shifted, gave way, and broke into several pieces, thereby causing Mrs. Lincoln to fall into the hole."

         Thereafter, on March 10, 2016, Mrs. Lincoln passed away, and Donald filed a motion to substitute parties-plaintiff seeking to substitute the Estate of Marilyn Lincoln, Mr. Lincoln and Becki Lincoln Zschiedrich (Mr. and Mrs. Lincoln's daughter) in place of decedent. Additionally, Donald filed an amended and supplemental petition alleging that Mrs. Lincoln's death was the result of a stroke, caused by a blood clot that formed as a result of her leg injury sustained from her fall into the hole and the related subsequent surgery. The amended petition further asserted wrongful death claims on behalf of Mrs. Lincoln's surviving spouse and adult children.

         On May 2, 2017, Acadian and its insurer filed a motion for summary judgment asserting that Plaintiffs could not prove Acadian breached any duty because the alleged defect was open and obvious to all and, thus, Acadian owed no duty. In support of the motion, Defendants attached the depositions of Mr. Lincoln and Donald in which they both testified that they all, including Mrs. Lincoln, [1]knew the hole was there, that the hole had a piece of plywood over it, and the hole was surrounded, to some extent, by caution tape. In his deposition, Donald testified that Acadian started digging the hole/tunnel at issue about one to two weeks prior to the accident. He stated that Acadian put a "rotten board" over the hole that touched, but did not overlap, the concrete. Donald stated that, after he helped his mother out of the hole, he observed a flimsy and rotten piece of plywood that had fallen into the hole after Mrs. Lincoln's fall. Donald testified that he believes Mrs. Lincoln stepped on the edge of the board, which shifted, causing her and the board to fall into the hole. Donald stated that he kept the piece of plywood and provided it to his attorney in connection with this litigation.

         In further support of their motion, Defendants also attached a photograph of the hole showing a piece of plywood partially covering the hole, caution tape around the area, and a safety cone. The record does not establish who took the photograph or when it was taken.

         Plaintiffs filed an opposition to the motion for summary judgment, arguing that Acadian placed an unsecured thin, weathered, and rotten piece of plywood over the hole, concealing the danger presented. Plaintiffs further asserted that Acadian's barricade, consisting of cones and caution tape, did not border the hole in its entirety and allowed access to the "rotten" plywood, which overlapped the sidewalk, thereby creating a "booby trap." Plaintiffs maintained that Acadian's failure to use proper materials and barricades created an unreasonable risk of harm that was not open and obvious. In support of its opposition, Plaintiffs attached portions of the depositions of Russell Tapie, the owner of Acadian, and Eric Syrdal, who is presumably an employee of Acadian; an affidavit from Ladd Ehlinger, a licensed architect, in which he states Acadian failed to provide a safe walking surface over the excavation as required by the International Residential Code in effect in Jefferson Parish; and photographs of the area at issue relied upon by Mr. Ehlinger.

         After a hearing on the motion for summary judgment, which consisted of argument of counsel and the introduction of the exhibits attached to the memoranda in support of and opposition to the motion, the trial court granted summary judgment in favor of Defendants and dismissed Plaintiffs' petition with prejudice. In its ruling, the trial court stated that the alleged defect was open and obvious to all and that Acadian ...


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