Willie Butler VS Winner's Choice Truck Stop, Inc. d/b/a Forest Gold Truck Stop and Scottsdale Insurance Company
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0470 WILLIE BUTLER VERSUS S WINNER CHOICE TRUCK STOP INC DB A FOREST GOLD TRUCK STOP AND SCOTTSDALE INSURANCE COMPANY DATE OF JUDGMENT OCT 2 9 2010 ON APPEAL FROM THE TWENTY FIRST JUDICIAL DISTRICT COURT NUMBER 19961 DIV E PARISH OF ST HELENA STATE OF LOUISIANA HONORABLE BRENDA BEDSOLE RICKS JUDGE Brian G Birdsall Counsel for PlaintiffAppellant New Orleans Louisiana Willie Butler Gracella Simmons Counsel for Defendants Appellees s Winner Choice Truck Stop Inc dba Forest Gold Truck Stop and Baton Rouge Louisiana Scottsdale Insurance Company BEFORE KUHN PETTIGREW AND KLINE JJ Disposition AFFIRMED The Honorable William F Kline Jr is serving pro tempore by special appointment of the Louisiana Supreme Court KUHN J Plaintiff appellant Willie Butler appeals the trial court judgment granting s summary judgment in favor of defendants Winner Choice Truck Stop Inc s b da Forest Gold Truck Stop Forest Gold and its insurer Scottsdale Insurance Company and dismissing his claims for damages arising from injuries he sustained while pumping gasoline We affirm FACTUAL AND PROCEDURAL BACKGROUND Butler filed this lawsuit averring that Forest Gold was liable to him as the custodian of a gasoline pump which leaked gasoline while he was pumping it into his truck tank causing him to sustain personal injuries most notably to his eyes s 2 The defendants answered the lawsuit and subsequently moved for summary judgment seeking dismissal from the lawsuit For purposes of summary judgment the defendants conceded that the accident occurred as Butler described in his deposition testimony According to Butler on January 15 2007 he held the nozzle and was leaning on his truck facing the pump using his right hand to pump the gasoline into his truck The pump was not preset to automatically shut off so Butler was required to stop it when it reached the amount he wanted All of a sudden at a point at the top of the pump where a clamp is located the hose popped loose and became unattached Fuel came out and splashed Butler in his face He reported to the cashier at the truck stop what had happened The defendants also do not dispute for summary Butler additionally sued Husky Corporation the manufacturer of the gasoline pump who remains in the lawsuit The trial court correctly concluded that appellant was entitled to an immediate appeal of the appellees dismissal from this litigation See La C art 1915A P 1 see also Motorola Inc v Associated Indem Corp 02 1351 La App 1st Cir 10 867 03 22 2d So 723 732 33 2 judgment purposes that the hose was not attached to the pump at the breakaway valve shortly after Butler reported having sustained injuries 3 In asserting entitlement to summary judgment the defendants contended that Butler could not establish that Forest Gold had the requisite knowledge necessary to support his claim The trial court agreed and in a judgment signed on September 14 2009 granted summary judgment and dismissed Butler claims s against these defendants A motion for rehearingnew trial was denied This appeal followed DISCUSSION Summary judgments are reviewed on appeal de novo with the appellate court using the same criteria that govern the trial court determination of whether s summary judgment is appropriate Smith v Our Lady of the Lake Hosp Inc 93 2512 La 7 639 So 730 750 The motion should be granted only if 94 5 2d the pleadings depositions answers to interrogatories and admissions on file together with any affidavits show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law La C art 966 P B On issues for which the moving party will not bear the burden of proof at trial the moving party burden of proof on the motion is satisfied by pointing out s to the court that there is an absence of factual support for one or more elements essential to the adverse parry claim action or defense s Thereafter the nonmoving party must produce factual support sufficient to establish that it will be 3 According to the undisputed evidence the breakaway technology allows the hose to separate from the pump It is designed for instances when a customer forgets to remove the nozzle from the vehicle tank and drives off Product material for the breakaway valve indicates that when s 200 pounds of pressure or more are exerted to the hose the butterfly valves immediately close the gasoline line allowing no more than a teaspoon of gasoline to be released 3 able to satisfy its evidentiary burden of proof at trial failure to do so shows that there is no genuine issue of material fact La C art 966 Clark v P 2 C Favalora 98 1802 La App 1st Cir 9 745 So 666 673 Because it is 99 24 2d the applicable substantive law that determines materiality whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to the case Guardia v Lakeview Regional Medical Ctr 2008 1369 La App 1st Cir 5 13 So 625 628 09 8 3d The owner 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 La C art 2317 1 On appeal the issue before us as posited by the parties is whether Forest Gold had notice of the alleged defect in the pump Nothing in the record establishes that Forest Gold had actual knowledge that the pump and its breakaway valve were defective in the manner described by Butler Thus the issue before us is whether Forest Gold should have known in the exercise of reasonable care that the pump would malfunction in the manner described by Butler 4 We find no merit in Butler contention that a previous instance of the hose becoming s disconnected from the same type of pump at the breakaway valve was sufficient evidence to establish actual knowledge of a defect in the pump According to the only evidence supporting such a finding once with one of the old pumps like that involved in Butler incident and once s with one of the newer pumps that were subsequently installed at the truck stop customers had driven away with the gasoline nozzle in their respective vehicles tanks Each time the breakaway valve allowed the detachment of the hose as designed and the customer came into the store to advise that the pump needed to be fixed These inapposite facts do not impute knowledge of an accident like that Butler alleges to have sustained 4 The record contains the affidavits and deposition testimony of two Forest Gold employees Store manager Frankie Williams testified that at the time of the accident she was not working having finished her shift earlier in the day She said that upon her arrival around 7 a on January 15 2007 she had conducted a m visual inspection of the premises which included a walk through the pumps to verify they were working She believed that had any hoses been disconnected from any of the pumps she would have seen it during her inspection Williams stated that on the day of Butler incident the truck stop did not keep inspection s logs or other documentation showing that she had inspected the pumps According to Williams when she arrived for work the day after the incident the hose was attached She explained the cashier on duty had left a handwritten note on Williams desk In the note the cashier stated that on January 15 2007 Butler had reported that gasoline had spewed in his face he wanted someone at the location to know he smelled like gasoline and was wiping his eyes The cashier also advised that she inspected the pump and that while there was no visible gas on the ground the hose was disconnected Williams stated that during the early morning hours area maintenance employee Michael Doucet had come by the 24 hour facility and reinstalled the hose Doucet testified that on the date of the Butler incident he repaired and serviced pumps for Forest Gold truck stops in Louisiana He outlined how he was a oneman operation who tended to all problems that arose with the pumps hoses and other apparatuses related to the pumps in the several truck stop stores including the one at which Butler was injured The evidence established that Doucet had been servicing pumps with various employers for over seventeen 5 years On the day of Butler incident Doucet had been working for Forest Gold s for three years essentially doing the same work he had done for previous employers Doucet explained how the State annually calibrates all the fuel pumps and if there are any problems he makes the required adjustments to ensure compliance In addition to repairing fuel pumps Doucet conducted monthly inspections He described how during his inspections he ascertained whether there were any leaks or broken nozzles and conducted preventive maintenance On January 15 2007 Forest Gold did not keep a log of his monthly inspections Doucet kept extra parts in his truck that he would charge to the store on an asneeded basis from the parts supplier Doucet attested that he inspected the pump at which Butler was injured before January 15 2007 and that it had no problems He noted that his monthly pump inspection always included a detailed assessment of all gasoline hoses connection points and connected apparatuses Doucet was highly skeptical that the incident could have occurred in the manner described by Butler explaining that he had seen instances where the hose was disconnected and a customer had stuck it together but that an automatic shut off mechanism prevented the pump from pumping any gasoline He had never heard of a breakaway valve having become disconnected while someone was using the pump Butler urges that the evidence fails to establish that Forest Gold exercised the requisite reasonable care necessary to avoid liability under Article 2317 He 1 suggests that the undocumented daily visual inspection that Williams testified she G undertook and the undocumented monthly detailed inspection that Doucet stated he conducted were insufficient to defeat summary judgment urging that a trier of fact should determine whether the inspections were reasonable The concept of constructive knowledge under Article 2317 imposes a 1 reasonable duty to discover apparent defects in a thing in the defendants garde or legal custody Broussard v Voorhies 06 2306 La App 1 st Cir 9 970 07 19 2d So 1038 1045 writ denied 07 2052 La 12 970 So 535 07 14 2d In the context of summary judgment Butler cannot merely point out to the court that the issue of whether a custodian has exercised reasonable care in maintaining a thing is factual one The evidence established that Forest Gold had an inspection protocol in place While Butler suggests that it was a deficient one he has offered no evidence to support that suggestion As movant Forest Gold had to point out an absence of factual support for the element of constructive knowledge in the exercise of reasonable care in maintaining the gasoline pump Williams and Doucet supplied that evidence by explaining Forest Gold s inspection protocols The burden shifted to Butler to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial Butler did not The record is devoid of any evidence establishing that a reasonable gasoline pump custodian would have acted any differently in its attempts to discover apparent defects in its gasoline pumps In light of the evidence of the inspection protocols actually undertaken and mindful of the lack of evidence of a gasoline pump having previously malfunctioned in the manner 5 At oral argument Butler urged that when Forest Gold acquired the pumps from the previous owner it never inspected the pumps but the record contains no evidence to support this assertion 7 described by Butler Forest Gold fulfilled its duty to discover apparent defects in the gasoline pumps Accordingly the trial court correctly granted summary judgment DECREE For these reasons the trial court judgment is affirmed Appeal costs are s assessed against plaintiff appellant Willie Butler AFFIRMED M
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
