United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
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.
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,  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.
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.
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.
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.
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
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.
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).
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)).
Law and Analysis
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)).
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.
brings identical theories of negligence against both EMG and
Velocity. See (Rec. Doc. 1-1, pp.
32-33). 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.