Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nogess v. Poydras Center, LLC

United States District Court, E.D. Louisiana

June 13, 2018

MICHELLE NOGESS
v.
POYDRAS CENTER, LLC et al.

         SECTION: A (5)

          ORDER AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion for Summary Judgment (Rec. Doc. 128) filed by Defendant Clampett Industries, LLC d/b/a EMG (“EMG”). Also before the Court is a Motion for Summary Judgment (Rec. Doc. 129) filed by Defendant Velocity Consulting, Inc. (“Velocity”). Plaintiff Michelle Nogess opposes both motions. (Rec. Doc. 142). EMG has replied (Rec. Doc. 157) and Velocity has replied. (Rec. Doc. 159). The motions, set for submission on March 7, 2018, are before the Court on the briefs without oral argument. Having considered the motions, memoranda of counsel, the record, and the applicable law, the Court finds that EMG's Motion for Summary Judgment (Rec. Doc. 128) is GRANTED for the reasons set forth below. The Court further finds that Velocity's Motion for Summary Judgment (Rec. Doc. 129) is GRANTED for the reasons set forth below.

         I. Background

         This matter arises out of an accident wherein Tyrone Nogess drove a vehicle through the barrier system of the Poydras Center parking garage, fell to the ground in his vehicle, and died. His widow, Plaintiff Michelle Nogess brought this lawsuit on behalf of her husband, herself, and her children against Defendants: Poydras Center LLC, Poydras Center Manager, Inc, Bobby Schloegel, [1] the Travelers Casualty Company, Clampett Industries LLC, and Velocity Consulting, Inc. Plaintiff Debra Yates also brought suit against Defendants claiming emotional distress and property damages as a result of sitting in her car next to the impact zone where Tyrone Nogess ultimately fell to his death in the vehicle.[2]

         The uncontested facts surrounding the incident are as follows: The accident at issue occurred on June 10, 2015 at approximately 7:05 a.m. in the parking garage of the Poydras Center, located at 650 Poydras Street, New Orleans, Louisiana. Tyronne Nogess was operating a truck that broke through the vehicle barrier restraint system on the fifth floor parking garage of the Poydras Center. The claims against Defendants at issue in this motion, EMG and Velocity, stem from the Property Condition Reports and Property Condition Assessments composed and rendered by EMG and Velocity. Plaintiff contends that both EMG and Velocity were negligent in making their assessments and in composing their respective reports, thus causing the alleged defects in the vehicle barrier restraint system to go unnoticed, and ultimately causing Mr. Nogess's death.

         Defendant EMG is in the business of providing professional commercial real estate due diligence services to its clients, and entered into a Master Servicing Agreement with Lehman Brothers Holdings, Inc. (“Lehman Brothers”) on November 24, 1998. On November 20, 2002, approximately thirteen years before the June 10, 2015 incident, EMG conducted an inspection of the Poydras Center building and, thereafter, rendered a Property Condition Report on or about November 25, 2002.

         On June 7, 2010, approximately five years before the June 10, 2015 incident, Velocity contracted with Hertz Investment Group (“Hertz”) to perform a Property Condition Assessment of the Poydras Center property. John Hetner, project manager for Velocity, performed a Property Condition Assessment consisting of a site visit and visual walk-through survey on June 7, 2010. In conjunction with the Property Condition Assessment, Velocity also prepared and rendered a Property Condition Report on June 30, 2010. (Rec. Doc. 129-5).

         In summary, Defendants EMG and Velocity performed visual inspections of the Poydras Center prior to the date of the accident. Plaintiff contends that EMG and Velocity should have noticed during their visual inspections of the property that the vehicle barrier restraint system at the Poydras Center's parking garage was defective, and further that EMG and Velocity should have alerted the property owners of the alleged defect. Plaintiff further maintains that had EMG or Velocity alerted the property owners of the alleged defect in the vehicle barrier restraint system, the defect would have been corrected and the vehicle being driven by Mr. Nogess would have been prevented from crashing through the glass windows of the Poydras Center garage. Plaintiff specifically alleges that both Velocity and EMG were negligent in:

a. Failing to properly inspect the parking garage;
b. Failing to note the dangerous conditions of the vehicle barrier system in their respective inspection reports, or alternatively, failing to note that the vehicle barrier system was not addressed in the inspection reports;
c. Failing to report serious defects and/or violations of applicable life and safety codes to the appropriate code enforcement officials and/or the building owners and/or managers; d. And all other acts of negligence, and violation of applicable codes as may be shown at trial.

(Rec. Doc. 1-1, pp. 32-33). EMG and Velocity now seek summary judgment seeking to have the claims brought against them dismissed. EMG and Velocity argue that as a matter of law, neither owed Mr. Nogess a duty of care in performing their assessments of the Poydras Center property.

         II. Legal Standard

         Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” when viewed in the light most favorable to the non-movant, “show that there is no genuine issue as to any material fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 249-50 (1986)). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 255). The court must draw all justifiable inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255).

         Once the moving party has initially shown “that there is an absence of evidence to support the non-moving party's cause, ” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with “specific facts” showing a genuine factual issue for trial. Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). 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. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (1993)).

         III. Law and Analysis

         The substantive law governing this negligence action is Louisiana state law. See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Under Erie, this Court must first look to the final decisions of the Louisiana Supreme Court in order to determine Louisiana law. Howe v. Scottsdale Ins. Co., 204 F.2d 624, 627 (5th Cir. 2000) (citing Labiche v. Legal Sec. Life Ins. Co., 31 F.3d 350, 351 (5th Cir. 1994)). If the Louisiana Supreme Court has not ruled on an issue, then a federal court must make an “Erie guess” to determine “as best it can” what the Louisiana Supreme Court would decide. Id. (quoting Krieser v. Hobbs, 166 F.3d 736, 738 (5th Cir. 1999)). In making an Erie guess in the absence of a ruling from the state's highest court, a federal court may look to the decisions of intermediate appellate state courts for guidance. Id. (citing Matheny v. Glen Falls Ins. Co., 152 F.3d 348, 354 (5th Cir. 1998)).

         Louisiana courts employ a duty-risk analysis to determine whether the defendant can be liable for the plaintiff's injuries. Under this analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff (“the duty element”), the defendant breached the duty, and the risk of harm was within the scope of protection afforded by the duty breached. Cuevas v. City of New Orleans, 769 So.2d 82, 85 (La.App. 4 Cir. 2000) (citing Hunter v. Dep't of Transp. & Dev., 620 So.2d 1149, 1150 (La. 1993)). Whether the defendant owed the plaintiff a duty is a “threshold issue in any negligence action.” Audler v. CBC Innovis Inc., 519 F.3d 239, 249 (5th Cir. 2008) (quoting Meany v. Meany, 639 So.2d 229, 233 (La. 1994)). The duty element is a question of law to be decided by the court, and the inquiry is whether the plaintiff has any law, including that arising from general principles of fault, to support his claim. Id. at 85-86. Under Louisiana law, fault is a broad concept: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. Civ. Code art. 2315.

         Plaintiff brings identical theories of negligence against both EMG and Velocity. See (Rec. Doc. 1-1, pp. 32-33).[3] At the crux of both motions is the duty element: whether Defendants EMG and Velocity owed Mr. Nogess a duty of care under Louisiana's duty-risk analysis for negligence. While EMG and Velocity have similar legal arguments seeking to have the claims against them dismissed, the facts surrounding these Defendants slightly differ, requiring the Court to analyze the motions separately. For instance, EMG issued its Report concerning the Poydras Center property in 2002, while Velocity issued its Report in 2010. Also, EMG and Velocity entered into separate contracts with different entities in relation to the work they performed on the Poydras Center. Therefore, the Court will analyze each motion separately, starting with EMG's Motion for Summary Judgment (Rec. Doc. 128) followed by Velocity's Motion for Summary Judgment. (Rec. Doc. 129).

         A. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.