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McKarry v. Dow Chemical Co.

United States District Court, E.D. Louisiana

December 18, 2019

DEJUAN MCKARRY
v.
DOW CHEMICAL COMPANY, ET AL.

         SECTION "L" (2)

          ORDER

         Before 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.

         I. BACKGROUND

         Plaintiff 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.

         II. PRESENT MOTION

         Defendant 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.

         III. LEGAL STANDARD

         Summary 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).

         Under 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. at 249-50.

         IV. DISCUSSION

         A. 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

         Pursuant 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.

         La. 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 ...


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