United States District Court, E.D. Louisiana
the Court is Defendant The Dow Chemical Company's Motion
for Summary Judgment. R. Doc. 84. The motion is opposed. R.
Doc. 91. The Court now rules as follows.
Dejuan McKarry alleges he was working as a
“switchman/operator/helper” at the Dow Chemical
Plant in Taft, Louisiana, when a ladder broke on a hopper
railcar and caused him to fall approximately 12 feet.
Plaintiff, who was an employee of Railserve, Inc.
(“Railserve”) brought suit against the following
Defendants: The Dow Chemical Company (“Dow”);
Union Carbide Corporation, a wholly owned subsidiary of The
Dow Chemical Company; Central City and Blackhawk Railroad, a
wholly owned subsidiary of Union Carbide Corporation; Union
Tank Car Company (“UTC”); UTLX Manufacturing,
LLC, a wholly owned subsidiary of Union Tank Car Company; and
Jeremy DeLacerda and Randy McDougal, Jr., in their capacity
as individual employees of UTLX Manufacturing. R. Doc. 1-4.
McKarry generally alleges that these Defendants owned or
operated the hopper railcar, and that his injuries were
caused by their negligent failure to inspect, repair, and
maintain it. Defendants Union Carbide Company, UTLX
Manufacturing, Inc., Jeremy DeLacerda, and Randy McDougal,
Jr. were subsequently dismissed from this lawsuit, leaving
Defendants Dow and UTC as the sole remaining defendants.
Dow moves for summary judgment dismissing Plaintiff's
claims against it for two reasons: (1) an essential element
of a claim under Louisiana Civil Code Article 2317.1 is that
the owner or custodian must have actual or constructive
knowledge of an alleged defect and there is no evidence that
Dow knew or should have known that the railcar at issue was
defective; and (2) Plaintiff does not have sufficient
evidence to invoke one of the exceptions to the independent
contractor defense. R. Doc. 84 at 1. Dow argues it is not
liable under Louisiana Civil Code Article 2317.1 because it
did not have actual or constructive knowledge of any alleged
defect in the railcar, R. Doc. 84-1 at 12, and it is not
liable for the negligence of its independent contractors,
UTCC or Railserve, R. Doc. 84-1 at 14. First, Dow contends
that it is not liable for the negligence of its independent
contractors because railroad work is not an
“ultrahazardous activity” under Louisiana law, R.
Doc. 84-1 at 15, and second, Dow avers that it did not
exercise operational control over either one of its
independent contractors, R. Doc. 84-1 at 16.
judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing
Fed.R.Civ.P. 56(c)). When ruling on a motion for summary
judgment, a court may not resolve credibility issues or weigh
evidence. See Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.
2008); Int'l Shortstop, Inc. v. Rally's
Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
Federal Rule of Civil Procedure 56(c), the moving party bears
the initial burden of “informing the district court of
the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477
U.S. at 322. “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which the party will bear the burden
of proof at trial.” Id. The court must find
“[a] factual dispute [to be] ‘genuine' if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party [and a] fact [to be]
‘material' if it might affect the outcome of the
suit under the governing substantive law.” Beck v.
Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). Moreover, the court must assess the
evidence and “review the facts drawing all inferences
most favorable to the party opposing the motion.”
Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d
577, 578 (5th Cir. 1986). But “unsubstantiated
assertions, ” “conclusory allegations, ”
and merely colorable factual bases are insufficient to defeat
a motion for summary judgment. See Hopper v. Frank,
16 F.3d 92, 97 (5th Cir. 1994); Anderson, 477 U.S.
Whether Dow had actual or constructive knowledge of an
alleged defect so as to be liable under Louisiana Code of
Civil Procedure Article 2317.1
to Louisiana law, an owner's liability for a defective
item is governed by Louisiana Civil Code Article 2317.1:
The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing
that he knew or, in the exercise of reasonable care, should
have known of the ruin, vice, or defect which caused the
damage, that the damage could have been prevented by the
exercise of reasonable care, and that he failed to exercise
such reasonable care. Nothing in this Article shall preclude
the court from the application of the doctrine of res ipsa
loquitur in an appropriate case.
Civ. Code art. 2317.1. An essential element of a claim under
Article 2317.1 is that the “owner or custodian of the
defective thing [had] actual or constructive knowledge of the
defect.” Johnsonv. Entergy Corp.,
36, 323 (La.App. 2 Cir. 9/20/02), 827 So.2d 1234, 1237-38.
“The concept of constructive knowledge imposes a
reasonable duty to discovery apparent defects in things under
the defendant's garde.” Id. (citing
Hagood v. Brakefield, 35, 570 (La.App. 2 Cir.
1/23/02), 805 So.2d 1230). For a plaintiff to recover under
Louisiana Civil Code article 2317.7, “the [plaintiff]
has the burden of ...