Humphrey v. Higbee Lancoms, LP, et al, No. 2:2018cv06298 - Document 95 (E.D. La. 2019)

Court Description: ORDER AND REASONS - IT IS ORDERED that Seiberts 48 motion for summary judgment is GRANTED with respect to Dillard's third party demand against Seibert for indemnity from Seibert based on Plaintiff's claims against Dillard's and Oakwood's crossclaims against Dillard's. Signed by Judge Susie Morgan. (bwn)
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Humphrey v. Higbee Lancoms, LP, et al Doc. 95 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A VEN ESSA H U MPH REY, Plain tiff CIVIL ACTION VERSU S N O. 18 -6 2 9 8 H IGBEE LAN COMS, LP, ET AL., D e fe n d an ts SECTION : “E”( 5) ORD ER AN D REAS ON S Before the Court is a motion for sum m ary judgm ent filed by Third Party Defendant R. Seibert Construction, LLC (“Seibert”). 1 Third Party Plaintiff Higbee Lancom s, L.P. (“Dillard’s”) opposes the m otion. 2 Seibert filed a reply. 3 For the reasons that follow, the m otion for sum m ary judgm ent is GRAN TED . BACKGROU N D Plaintiff Venessa Hum phrey alleges that on or about J une 20 , 20 17, she slipped and fell on a newly painted handicap ram p after exiting a departm ent store known as Dillard’s, located on the prem ises of the Oakwood Center Mall in Gretna, LA. 4 It is undisputed that it was raining as Plaintiff exited the store. 5 According to Plaintiff, “the newly painted handicap ram p being covered with rain water created a slick surface an d thereby a hazardous condition.”6 Plaintiff brings causes of actions based on Louisiana Civil Code articles 2315 and 2317, as well as Louisiana Revised Statutes, against Dillard’s 1 R. Doc. 48. Seibert seeks sum m ary judgm ent on all claim s asserted by the Plaintiff, but the Plaintiff does not bring claim s against Seibert. Plaintiff filed an opposition to the m otion, R. Doc. 73, apparently out of an abundance of caution. The Court will analyze the m otion as one for sum m ary judgm ent on Dillard’s third party dem and against Seibert. To the extent Seibert seeks sum m ary judgm ent on a claim not m ade by the Plaintiff against it, the m otion is den ied as m oot. 2 R. Doc. 70 . 3 R. Doc. 89. 4 R. Doc. 1-2 at ¶ III. 5 R. Doc. 48-2 at ¶ 2; R. Doc. 70 -1. 6 R. Doc. 1-2 at ¶ VI. 1 and Oakwood Shoppin g Center, LLC a/ k/ a General Growth Services, Inc. (“Oakwood”), the owner of the shopping m all where Dillard’s is located. 7 Dillard’s and Oakwood filed crossclaim s against each other. 8 Oakwood contends Dillard’s is contractually obligated to defend and indem nify Oakwood in the present lawsuit. 9 Dillard’s contends Oakwood is contractually obligated to defend it. 10 Dillard’s filed a third party com plaint against Seibert, the party with which Dillard’s contracted to paint the handicap ram p at issue. 11 Dillard’s alleges, “if plaintiff has sustained dam ages, which is denied, then her dam age is a result, in part, of the negligence and/ or fault of Siebert.”12 In its prayer, Dillard’s requests “in the event an award of dam ages is granted in Plaintiff’s favor against [it], or in Oakwood Shopping Center’s favor against [it], there be a judgm ent entered in [its] favor against [Siebert] for any and all sum s to which it has becom e indebted to plaintiff or Oakwood, including the costs of defending this m atter.”13 Dillard’s third party dem and contains no factual allegations to support its prayer for recovery from Seibert for any am ounts Dillard’s is found to owe Oakwood. On Novem ber 21, 20 18, Seibert filed a m otion to dism iss Dillard’s third party dem an d, arguing Dillard’s failed to state a claim for contribution or indem nity. 14 On May 20 , 20 19, the Court granted this m otion to the extent Dillard’s sought contribution from 7 Id. at ¶ VIII. Although Plaintiff references article 2315, 2317, and 2317.1, and Louisiana Revised Statutes, she describes her causes of action as bein g negligence and strict liability . As explained herein , La. Civ. Code articles 2317 and 2317.1 are now negligence causes of action. 8 R. Docs. 8 and 11. 9 R. Doc. 8 at pp. 7-8 , ¶¶ 3-5. 10 R. Doc. 11 at pp. 3-4, ¶¶ 4-6. 11 R. Doc. 12. 12 Id. at ¶ 8 . 13 Id. at ¶ 11. 14 R. Doc. 20 . 2 Seibert based on Seibert’s negligence. 15,16 The Court denied Seibert’s m otion to dism iss on the claim against it for legal indem nification. 17 In the instant m otion, Seibert seeks dism issal of Dillard’s’ claim s for legal indem n ification because “Dillard’s cannot be held liable in this m atter U N LESS Dillard’s is indepen dently at fault for its own actions or inactions, which would prevent any claim for legal indem nification.”18 SU MMARY J U D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”19 “An issue is m aterial if its resolution could affect the outcom e of the action.”20 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.”21 All reasonable inferences are drawn in favor of the non-m oving party. 22 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 23 15 R. Doc. 33 at 4. The Court’s ruling granting Seibert’s m otion to dism iss “to the extent [Dillard’s] seeks contribution from Seibert” applies to Dillard’s’ claim s for contribution with respect to both Plaintiff’s claim s against Dillard’s and Oakwood’s crossclaim s against Dillard’s. 17 R. Doc. 33 at 6. 18 Id. (em phasis in original). 19 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 20 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 21 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 22 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 23 Hibernia N at. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citin g Am oco Prod. Co. v . Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 16 3 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion, and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.” To satisfy Rule 56’s burden of production, the m oving party m ust do one of two things: “the m oving party m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “the m oving party m ay dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .” If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 24 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to establish an essential elem ent of the non-m ovant’s claim . 25 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 26 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”27 “[U]nsubstantiated 24 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Bren nan, J ., dissentin g). 26 See id. at 332. 27 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving 25 4 assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”28 LAW AN D AN ALYSIS Plaintiff alleges her claim s are based on: negligence, under Louisiana Civil Code article 2315; strict liability, under Louisiana Code article 2317 and 2317.1; and Louisiana Revised Statutes. 29 For “m erchants” like Dillard’s, Louisiana Revised Statutes 9:28 0 0 .6(B) subsum es a plaintiff’s negligence claim s. 30 As a result, Plaintiff’s negligence claim s against Dillard’s are based solely on Section 9:280 0 (B). 31 Dillard’s seeks legal indem nity from Seibert. 32 Dillard’s cannot recover legal indem n ity from Seibert if Dillard’s is held liable to Plaintiff under Section 9:280 0 .6(B). The Court already has held “a party who is actually negligent or actually at fault cannot recover legal indem nity.”33,34 The key issue is thus whether Dillard’s can recover legal indem n ity from Seibert under a theory of strict liability. party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 28 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 29 The Court assum es Plaintiff is referrin g to La. R.S. 9:280 0 .6. 30 La. R.S. 9:280 0 .6(B). 31 Jackson v. DG Louisiana, LLC, Civil Action No. 17-690 , 20 18 WL 40 42519, at *2 (W.D. La. J uly 31, 20 18 ). 32 Dillard’s does not allege its contract with Seibert included an indem n ity provision . As a result, Dillard’s only seeks legal indem n ity, not contractual indem nity, from Seibert. 33 R. Doc. 33 at 5 (citing Ham w ay v. Braud, 20 0 1-2364 (La. App. 1 Cir. 11/ 8 / 0 2), 838 So. 2d 80 3, 80 6). 34 The sam e is true if Dillard’s seeks legal indem nity from Seibert for the am ount of any contractual indem n ity Dillard’s m ay owe to Oakwood. Put differently, if Oakwood is found liable under a theory of negligence to Plaintiff, and Dillard’s is in turn found liable in contract to indem nify Oakwood, Dillard’s cannot recover legal indem nity from Seibert because neither Oakwood’s nor Dillard’s’ liability would be based on strict liability. 5 “In the absence of an express contractual provision, a claim for legal indem nity arises only when the fault of the person seeking indem nification is solely constructive or derivative, from failure or om ission to perform som e legal duty, and m ay only be had against one who, because of his act, has caused such con structive liability to be im posed.”35 Seibert contends the 1996 tort am endm ents adding article 2317.1 injected a “negligence standard into custodial fault.”36 Seibert argues that, as a result, “with its adoption of La. Civ. Code art. 2317.1 to require knowledge or constructive knowledge [of a defect], the Legislature effectively elim inated strict liability under Article 2317, turning it into a negligence claim .”37 Based on the 1996 am endm ents, Seibert concludes: [I]t is no longer possible [for] Dillard’s to be found m erely constructively or derivatively at fault and still be held responsible for the actual fault of Seibert under 2317. For Hum phrey to succeed, she would have to establish that Dillard’s knew, should have known, or created the unreasonably dangerous condition or defect in its ram p. A finding of any of these would constitute a finding of actual fault on the behalf of Dillard’s and prevent it from obtaining legal indem nification from Seibert. 38 Seibert is correct. After the 1996 am endm ents, if Dillard’s is found liable under articles 2317 and 2317.1, Dillard’s’ liability is not solely constructive or derivative. As the Louisiana courts have explain ed: [S]trict liability under La. C.C. art. 2317 was effectively elim inated and converted to a negligence standard by the enactm ent in 1996 of La. C.C. art. 2317.1, which im poses liability only if the owner or custodian knew or should have known of the defect an d failed to use reasonable care to prevent the dam age. 39 35 425 N otre Dam e, LLC v. Kolbe & Kolbe Mill W ork Co., 151 F. Supp. 3d 715, 721 (E.D. La. 20 15) (quoting Ham w ay , 838 So. 2d at 80 6) (internal quotation om itted). 36 Id. at 17 (quoting Boy d Racing, L.L.C. v . W .G. Yates & Sons Const. Co., No. 2:10 CV416, 20 11 WL 1113574, at *2 (W.D. La. Mar. 24, 20 11)) (internal quotation m arks om itted). 37 Id. at 17-18 (quoting Burm aster v. Plaquem ines Par. Gov't, 20 0 7-2432 (La. 5/ 21/ 0 8 ), 98 2 So. 2d 795, 799) (internal quotation m arks om itted). 38 Id. at 18 . 39 Ponder v. SDT W aste & Debris Services, L.L.C., 20 15-1656 (La. App. 1 Cir. 8/ 16/ 17), 20 17 WL 3498159, at *5 (citing Burm aster, 98 2 So. 2d at 799 n.1; Maraist & Galligan , Louisiana Tort Law § 14– 2, at 330 – 332 (1996)). 6 As a result, Dillard’s m ay be held liable to Plaintiff only for its own negligent conduct under Section 9:280 0 .6 and articles 2317 and 2317.1. If Dillard’s is found liable to Plaintiff under this statute or these articles, Dillard’s liability is direct, not constructive or derivative. 40 Accordingly, even m aking all reasonable assum ptions in favor of Dillard’s, which a court m ust do on a m otion for sum m ary judgm ent, 41 the Court finds Seibert is entitled to sum m ary judgm ent in its favor on Dillard’s third party dem and. CON CLU SION IT IS ORD ERED that Seibert’s m otion for sum m ary judgm ent is GRAN TED with respect to Dillard’s third party dem and against Seibert for indem nity from Seibert based on Plaintiff’s claim s against Dillard’s and Oakwood’s crossclaim s against Dillard’s. N e w Orle a n s , Lo u is ian a, th is 3 1s t d ay o f Octo be r, 2 0 19 . ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 40 Dillard’s’ claim for indem n ity for any dam ages it m ight be contractually obligated to pay Oakwood fails for the sam e reasons. Any dam ages awarded against Oakwood would be based on n egligence, whether under article 2315 or article 2317, and would not entitle Oakwood to contribution or indem nity from Dillard’s. The contractual agreem ent between Dillard’s and Oakwood m ay entitle Oakwood to con tractual indem nity from Dillard’s, but that agreem ent would not entitle Dillard’s to indem n ity from Seibert. 41 W arren v. Geller, 924 F.Supp.2d 713, 728 (E.D. La. 20 13). 7