Chad Wehrlin & Michele Wehrlin, Individually and on behalf of their minor children, Bailey Wehrlin & Korey Miller VS The Manitowoc Company, Inc. and H&E Equipment Services, Inc. and XYZ Corporation
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0893 tJ C CHAD WEHRLIN AND MICHELLE WEHRLIN INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN BAILEY WEHRLIN AND KOREY MILLER 19 VERSUS THE MANITOWOC COMPANY INC H EQUIPMENT E SERVICES INC AND XYZ CORPORATION On Appeal from the 19th 7udicial District Court Parish of East Baton Rouge Louisiana Docket No 590 Section 22 976 Honorable Timothy E Kelley udge Presiding Joseph G Glass Attorneys for Appellants Plaintiffs Andrew D Weinstock Duplass 2wain Bourgeois Pflster Weinstock Metairie LA Erick Y Chad Wehrlin and Michelle Wehrlin Individually and on behalf of their minor children Bailey Wehrlin and Korey Miller Miyagi Attorneys for Appellee Defendant E H Equipment Services Inc Leslie Ayres Daniel L Adam Thames Taylor Porter Brooks Phillips L P Baton Rouge LA BEFORE PARRO HUGHES AND WELCH JJ A G ent 7udg0 rendere MAY 0 7 2Q13 e 1 7ustice efferson D Hughes III is serving as judge ad hoc by special appointment of the Louisiana Supreme Court PARRO J A heavy equipment operator was injured when disassembling part of a crane at the direction of his employer the lessee of the crane The operator along with his family members filed suit for damages against the manufacturer of the crane and against the owner of the crane The trial court signed a judgment that granted lessor summary judgment in favor of the owner of the crane and dismissed all of the lessor plaintiffs claims against the owner lessor The plaintiffs appeal from this adverse judgment For the following reasons we affirm FACTUAL AND PROCEDURAL BACKGROUND In 2006 Grove U L Grove manufactured sold and delivered a Grove S C RT890E 90 rough terrain crane Grove crane to H Equipment Services Inc ton E E H one of its authorized distributors E H is located in Gonzales Louisiana In turn in late October 2006 H leased the newly Grove crane to Dow E purchased Chemical Company Dow for use at Dow facility in Taft Louisiana The Grove crane s remained on lease to Dow at its Taft facility for approximately four years On April 11 2008 Grove issued a notice identified as Product Improvement Program G08 PIP advising its distributors of an issue regarding the weld quality 103 on the boom swingaway extension of several models of its cranes including the Grove crane identified above Specifically Grove PIP stated in pertinent part that it had s been determined that some of the welds on the lacings of the boom swingaway extension may not be to specifications or may be missing The PIP required that the welds on the acings be inspected and repaired as necessary in accordance with attached instructions As an authorized Grove distributor H was authorized to E perform the PIP repair to the Grove crane it leased to Dow And under the terms of its distributor agreement with Grove H employed personnel who were qualified and E factory trained in the assembly disassembly maintenance and service of Grove cranes boom A swingaway e as referenced in Grove PIP is also referred to ension s in the industry as a boom extension a boom extension or a and folding bifold jib 2 is a structure that can be affixed to the end of a crane main boom to provide s additional reach When in use the folding boom extension is in an erect position when not in use the folding boom e is stowed in a folded position on the side ension of the crane main boom On the Grove crane at issue in this appeal the folding boom s ension e was comprised of two components a base section constructed of inetal lacing sometimes singly referred to as the jib and a section constructed of solid fly metal sometimes referred to as the stinger In this opinion we use the term folding boom eto refer to the two structure iincluding the base xtension component e jib and the fly attached to the Grove crane stinger In approximately September 2009 over a year after having received the PIP E H sent Brian Gremillion one of its field technicians to Dow to inspect the Grove crane to ascertain whether the PIP repair was required Mr Gremillion determined there was one missing weld on the Grove crane folding boom extension and he told s Craig Hitt a Dow work coordinator not to use the folding boom e According ension to Mr Gremiliion he did not remove and take the folding boom extension with him that day because Dow was using the Grove crane On December 22 2009 Kelly Brown an H service manager called Mr Hitt at E Dow to inform him that he was sending two H field technicians to remove the jib E from the Grove crane and to return it to H faciliry so that the PIP repair could be s E performed According to Mr Brown his use of the term jib meant the entire folding boom extension including both the base section and the fly section jib stinger In response Mr Hitt told Mr Brown to simply send out an H truck and he would have E his Dow employees remove the jib and load it onto the truck for return to H s E facility4 Mr Hitt considered the jib removal a task for pow employees and routine Z When it is unclear whether the term jib is being used to refer to the entire folding boom extension or to the jib alone we use the term jib in quotation marks base 3 Kelly Brown H service manager explained that most of the time H will not remove a until s E E jib there is a means of transportation readily available to return it to H facility s E According to Mr Brown Mr Hitt told him D worry about sending your guys the crane is in use t on and when they finished with this crane I have them bring it back to the yard and remove the jib re ll 3 had no concerns about their ability to safely perform the task Mr Brown readily agreed to the arrangement based on his knowledge that Dow was a conscious safety company with highly qualified crane operators and based on H frequent s E interaction with Dow and its employees as it related to the operation of the Grove crane Mr Hitt and Mr Brown did not discuss how the jib was going to be removed Mr Hitt directed Chad Wehrlin a heavy equipment operator to remove the jib from the Grove crane and Mr Wehrlin proceeded to do so with the assistance of three other operators Dwayne Folse Max Rankin and Donald Spahr Mr Hitt understood that H was only going to pick up the base section of the folding boom e E ension what he referenced as the jib so he told the operators to remove the jib but not the stinger Mr Hitt did not discuss how to remove the jib with the operators base leaving the decision as to the method of removal to them With Mr Wehrlin taking the lead the operators assumed their respective roles in removing the jib from the Grove crane base Mr Wehrlin was to rig the jib for base lifting and after the rigging was complete he was to remove a pin from one end of the base jib to detach it from the Grove crane main boom s To accomplish his task Mr Wehrlin was standing on the deck of the crane which was approximately six feet off of the ground Mr Rankin and Mr Spahr were standing on the ground and Mr Wehrlin asked Mr Spahr to release the pin on the other end of the jib at the nose end base of the Grove crane folding boom extension s Mr Folse operated a second crane the assist crane which was to lift the jib from the Grove crane main boom once it base s was detached and set it on the ground In deciding how to rig and remove the jib from the Grove crane Mr base Wehrlin relied on a label affixed to the jib titied BOOM EXTENSION DATA boom base data label and also relied on the placement of four metal eyelets welded to the top of the jib during the manufacturing process The boom data label showed both the base 5 Mr Wehrlin Max Rankin and Dwayne Folse began the job and Donald Spahr joined them shortly thereafter Mr Wehrlin was a direct employee of Union Carbide Corporation and Mssrs Rankin Folse and Spahr were direct employees of Jacobs Field Services Inc All four men reported to work at Dow s Taft facility and worked under Mr Hitt supervision s 4 base jib and stinger sections of the folding boom extension and provided data for fly determining the center of gravity for both sections of the folding boom e ension Further according to a Grove corporate representative the position of the metal eyelets welded to the top of the jib encompassed the center of gravity for both sections of base the folding boom e and allowed for the level lifting of both sections of the ension folding boom extension in a stable fashion However Mr Wehrlin interpreted the boom data label as providing center of gravity data for the jib alone and not for both base sections and determined his rigging method accordingly And as for the four metal eyelets Mr Wehrlin considered these to be lifting lugs and assumed they were positioned on the top of the jib so as to provide the correct center of gravity for base stably lifting the jib alone Based on his two incorrect assumptions regarding the base boom data label and the metal eyelet placement on the jib Mr Wehrlin rigged the base load for lifting with an incorrect center of gravity Mr Wehrlin completed the rigging of the jib and remained standing on the base Grove crane deck to help guide the jib out of its stowed position base After he released the pin on his end of the jib Mr Wehrlin end shot up in the air base s approximately 15 feet while he was holding on to it Mr Wehrlin let go of the jib base dropped back to the deck of the Grove crane and then either fell or jumped from the deck to the ground to avoid being hit by the jib as it came down As a result of base the accident Mr Wehrlin sustained a severe left elbow dislocation a fractured left wrist and injuries to his left forearm He underwent three surgeries and e xtensive physical therapy and did not work for several months He returned to light duty as a heavy equipment operator at Dow in July 2010 and then to full duty in September 2010 In May 2010 Mr Wehrlin and his wife Michelle Werhlin filed suit individually 6 It is unclear whether Mr Wehrlin or Mr Spahr released his pin first Although Mr Folse testified in his deposition that he saw Mr Wehrlin remove his pin first the other three operators were not sure in which orderthe pin release occurred 5 and on behalf of their minor children Bailey Wehrlin and Korey Miller against Grove and H In their petition the plaintiffs alleged Grove was liable as the manufacturer E of the Grove crane and asserted causes of action for defective design defective construction failure to warn failure to conform to an express warranty and any and all negligence and fault under the Louisiana Products Liability Law LPLA LSA or S R 51 2800 9et seq The plaintiffs also alleged that H was liable for failure to maintain E the Grove crane in a safe condition failure to warn of the Grove crane dangerous s condition of which H was aware negligently offering the unreasonably dangerous E Grove crane for lease and any and all other negligence and fault allowed under or Louisiana law Both defendants answered the plaintiffs affirmative defenses petition and asserted The parties then spent over a year conducting discovery and addressing other pretrial matters In March 2011 Dow and Union Carbide Corporation Mr Wehrlin direct employer and a wholly owned subsidiary of Dow intervened in the s action to recover medical and indemnity benefits paid to Mr Wehrlin after his accident In October 2011 H filed a motion for summary judgment seeking dismissal of E all of the plaintifFs claims against it The plaintiffs responded by filing a motion for partial summary judgment regarding H liability under LSA art 2317 as the s E C 1 owner of the allegedly defective Grove crane and a separate motion for partial summary judgment regarding Grove liability under the LPLA as the manufacturer of s the allegedly defective Grove crane Grove filed its own motion for partial summary judgment seeking dismissal of several of the plaintiffs claims against it In January 2012 the trial court held a hearing on the cross motions for summary judgment At the hearing the trial court concluded in oral reasons that H had not E Korey Miller is Mrs Wehrlin son from a previous marriage and Mr Wehrlin stepson s s e In their original petition the plaintiffs named The Manitowoc Company Inc as a defendant identifying that entity as the manufacturer of the Grove crane Grove answered the petition stating that it had been incorrectly named in the etition p as The Manitowoc Company Inc The plaintiffs subsequently amended their petition to name Grove as the manufacturer of the Grove crane Plaintiffs also originally named XYZ Corporation as a defendant the identity of this defendant is unknown 9 The trial court addressed several other matters at the January 2012 hearing these matters are not at issue in this appeal 6 breached any duty to Dow that resulted in Mr Wehrlin injuries s On February 24 20i2 the trial court signed a judgment granting H motion for summary judgment s E and dismissing all of the plaintiffs claims against H with prejudice The plaintiffs E filed a petition for appeal of the trial court judgment and the trial court signed an s order granting a devolutive appeal to this court On appeal in three assignments of error the plaintiffs contend the trial court manifestly erred in concluding that H breached no duty to Dow E First they argue that the trial court erred in finding H had no specialized knowledge regarding the E use of the metal eyelets for lifting beyond Dow knowledge of such when LSA s C art 2317 only requires actual or constructive knowledge of the defect Second they 1 argue that the missing weld on the Grove crane jib was another defect and that s base the evidence established that H failed to exercise reasonable care by failing to E perform the PIP repair at the time the weld defect was discovered approximately three months prior to Mr Wehrlin accident s Third they contend the trial court erred in granting summary judgment in favor of H because there are genuine issues of E material fact regarding H alleged negligence in allowing Dow to remove the jib s E without first confirming that Dow could safely do so SUMMARY JUDGMENT AS TO THE PLAINTIFFS CUSTODIAL LIABILITY CLAIM A motion for summary judgment shall be granted if the pleadings depositions answers to interrogatories and admissions on file together with any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law LSA art 966 Henry v NOHSC Houma No 1 P C B On February 27 2012 the trial court signed a judgment denying the plaintiffs motion for summary judgment as to H liability Further on January 27 2012 the trial court signed a judgment granting s E in part and denying in part Grove motion for partial summary judgment as to certain of the plaintiffs s claims against Grove The plaintiffs have not challenged the denial of their motion for partial summary judgment as to H liability further the January 27 2012 judgment is not before this court in this s E appeal 17 After the appeal was lodged this court issued a rule to show cause order seeking clarification as to whether the February 24 2012 judgment was actually the judgment from which the plaintiffs sought an appeal Later this court issued an order maintaining the appeal from the February 24 2012 judgment Chad Wehrlin et al v The Manitowoc Company Inc et al 12 La App lst Cir 8 0893 12 24 unpublished action 7 C 0738 L 11 La App lst Cir 6 97 So 470 473 writ denied 12 12 28 3d 1761 La 11 99 So 677 The burden of proof on summary judgment remains with 12 2 3d the mover However if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover s burden on the motion does not require him to negate all essential elements of the adverse party claim action or defense but rather to point out to the court that there s is an absence of factual support for one or more elements essential to the adverse s party claim action or defense Thereafter if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact P C LSA art 2 C 966 Once the motion for summary judgment has been properly supported by the moving party the failure of the non party to produce evidence of a material moving factual dispute mandates the granting of the motion Pugh v St Tammany Parish School Bd 07 La App lst Cir 8 994 So 95 97 writ denied 08 1856 08 21 2d 2316 La il So 1113 see also LSA art 967 08 21 996 2d P C B Summary judgment is seldom appropriate for determinations based on subjective facts such as motive intent good faith knowledge or malice See Monterrey Center LLC v Ed Partners Inc 08 La App 1st Cir 12 5 So 225 ucation 0734 08 23 3d 232 Nonetheless Louisiana courts have recognized that while rare summary judgment may be granted on subjective issues when no issue of material fact exists concerning that issue or when the plaintiff fails to prove a factual dispute concerning the subjective issue See Cote v City of Shreveport 46 La App 2nd Cir 571 11 21 9 73 So 435 440 summary judgment was proper when plaintiff failed to 3d show employer had knowledge of employee violent propensities and Keppard v AFC s Enterprises Inc 00 La App 4th Cir 11 802 So 959 966 summary 2474 Ol 8 2 2d judgment was appropriate when plaintiff presented nothing more than unsupported allegations regarding defendanYs malice 8 In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial court s determination of whether summary judgment is appropriate Greater Lafourche Port n Com v James Const Group L 11 La App lst Cir 9 104 So C 1548 12 21 3d 84 88 Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Henrv 97 So at 473 3d Louisiana Civil Code articles 2317 and 2317 define the 1 basis for delictual liability for defective things generally known as custodial liability Granda v State Farm Mut Ins Co 04 La App ist Cir 2 935 So 703 7Q7 writ 1722 06 10 2d Q8 denied 06 La 5 927 So 326 To establish liability under these codal 0589 06 2d articles based on ownership or custody of a thing the plaintiff must show that 1 the defendant was the owner or custodian of a thing which caused the damage 2 the thing had a ruin vice or defect that created an unreasonable risk of harm 3 the ruin vice or defect of the thing caused the damage 4 the defendant knew or in the exercise of reasonable care should have known of the ruin vice or defect 5 the damage could have been prevented by the exercise of reasonable care and 6 the defendant failed to exercise such reasonable care Id at 708 E H would not bear the burden of proof at trial therefore its burden on the motion for summary judgment did not require that it negate all essential elements of the plaintiffs custodial liability claim Rather H burden on the motion for summary s E judgment was to point out to the court that there was an absence of support for one or more elements essential to the plaintiffs claim La C art 966 see Babin v P 2 C Dixie Winn Louisiana Inc 00 La 6 764 So 37 39 At that point 0078 00 30 2d 40 the burden would shift to the plaintiffs to present evidence that genuine issues of The legislation enacting LSA art 2317 C 1effective April 16 1996 abolished the concept of strid liability governed by prior interpretations of LSA art 2317 Since that date a more appropriate term C for liability under Articles 2317 and 2317 is seemingly custodial liability which now requires a finding 1 of actual or constructive knowledge on behalf of the defendant See Morgan v Citv of Baton Rouqe 06 0158 La App lst Cir 4960 So 1013 1016 n writ denied 07 La 9 964 So 07 2d i 1239 07 21 2d 342 9 material fact existed as to one or more elements essential to their custodial liability claim Id also see Daniels v USAgencies Cas Ins Co 11 La App ist Cir 1357 12 3 5 92 So 1049 1054 3d 55 To establish H custodial liabiliry under LSA art 2317 plaintiffs would s E C 1 be required to prove among other things that H as the owner of the Grove crane E knew or reasonably should have known that the Grove crane had a defect that created an unreasonable risk of harm The plaintiffs identify one alieged defect in this case as the improperly placed metal eyelets welded to the top of the Grove crane jib s base The plaintiffs also describe these metal eyelets as lifting lugs The plaintiffs argue in their first assignment of error that the trial court erred in finding H had no E specialized knowledge that the metal eyelets could not be used to lift a folding boom extension or jib alone in a level manner We agree that custodial liability under base C LSA art 2317 requires only actual or constructive knowledge of a thing 1 s defect however we find the plaintiffs have not presented su evidence to cient create a genuine issue of material fact that H had such knowledge i that the E e metal eyelets could not be used to lift a folding boom e or a jib alone in a ension base level manner The concept of constructive knowledge under LSA art 2317 imposes a C 1 duty to exercise reasonable care to discover apparent defects in a thing in the s defendant garde or legal custody See Broussard v Voorhies 06 La App lst 2306 Cir 9 970 So 1038 1045 writ denied 07 La 12 970 So 07 19 2d 2052 07 14 2d 13 In this appeal the plaintiffs focus on H knowledge of the alleged metal eyelet defect and do not s E argue that H is liable for damages due to Grove allegedly misleading boom data label E s Louisiana Civil Code article 2317 states 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 The use of the phrase knew or in the exercise of reasonable care should have known in LSA art C 1 2317 is otherwise referred to as actual or constructive knowledge 3rd Cir 6 801 So 1097 1108 Ol 22 2d 10 See Mvers v Dronet Ol La App 5 535 Eric Fidler Grove corporate representative testified in his deposition that the s four metal eyelets welded to the top of the Grove crane jib were appropriately s base located so that the folding boom extension could be lifted in a stable fashion And when deposed experts from both Grove and H testified that generally rigging crews E often use manufacturer metal eyelets for lifting placed However neither the Grove ss crane operator manual which was located in the Grove crane cab on the day of the s accident and which had a specific section with directions for removing the folding boom extension nor any labeling on the folding boom extension itself indicated that the metal eyelets on the Grove crane jib were intended for this purpose Further s base although E H personnel were factory trained in the assembly disassembly maintenance and service of Grove cranes there is no evidence that H had ever used E the metal eyelets for lifting the Grove crane folding boom extension or the jib s base alone In fact Mr Brown H service manager and Mr Raymond Hardison H vice E E president both testified as H corporate representatives that they did not know the E purpose of the metal eyelets and had never been told that they were for lifting And Mr Gremillion H field technician testified that his personal opinion was that the E metal eyelets were to keep the hoist cable on top of the folding boom e ension when rigging but he had not been taughY that by Grove In opposition to H motion for summary judgment the plaintiffs argue that s E the deposition testimony of Richard Simoneaux H service manager in April 2008 E shows that H knew not to use the metal eyelets for lifting E In his deposition Mr Simoneaux admitted that movement was a hazard of jib removal known However he explained that H general practice was to use four slings spread out s E along a to remove it and that this removal method minimized the risk that the jib jib would move when detached He explained that he had never seen H personnet E use the metal eyelets when removing the folding boom extension or the jib from a base Grove crane or any other crane When asked if this method was avoided because using Louisiana Code of Civil Procedure article 1442 seks forth the allowance and procedure for depositions of corporations associations or governmental agencies See Yokum v 615 Bourbon Street L 07 0 1785 La 2977 So 859 866 n 08 26 2d 16 11 metal eyelets woufd not allow a level lift Mr Simoneaux stated I really don know t We just didn do it that way t We find that this case presents one of those rare instances where summary judgment was warranted on the subjective issue of knowledge See Cote v City of Shreveport 73 So at 440 and Keoqard v AFC Enterprises Inc 802 So at 966 3d 2d The fact that H did not or would not use the metal eyeleEs to remove jibs does not E equate to actual or constructive knowledge that doing so created an unreasonable risk of harm Rather Mr Simoneaux stestimony simply demonstrates that H used a E different method to remove jibs than lifting with metal eyelets And contrary to the plaintiffs argument Mr Simoneaux sadmission that movemenY was a known hazard of jib removal is insu evidence to create a genuine issue of material fact as to cient whether H had knowledge that the metal eyelets could not be used to perform a E level lift of a folding boom extension or a jib alone See Strickland v Tangi base Lanes Bowling Inc 08 La App lst Cir 8 unpublished 2009 WL 2413672 1803 09 6 The plaintiffs have failed to produce factual support sufficient to establish that they can satisfy their evidentiary burden of proof at trial on this essential element of their custodial liability claim under LSA art 2317 See LSA art 967 This C 1 P C B assignment of error is without merit In their second assignment of error the plaintiffs identify the missing weld on the Grove crane jib as another defect that created an unreasonable risk of harm s base in this case According to the plaintiffs once H discovered the missing weld on the E Grove crane base H had a duty as custodian of the Grove crane to promptly sjib E repair the defect They argue that H failure to remove the folding boom e s E ension from the Grove crane when discovered and to then repair the missing weld constituted a failure to exercise reasonable care that could have prevented Mr Wehrlin saccident 16 In concluding that the plaintiffs failed to present sufficient evidence of the knowledge component of a custodial liability claim under LSA art 2317 we make no determinations regarding the remaining C 1 components existence of a defect prevention of the damage by the exercise of reasonable care and failure to exercise reasonable care of the plaintiffs custodial liability claim 12 To establish H custodial liability based on the defective weld the plaintiffs s E would be required to prove among other things that the defective weld created an unreasonable risk of harm and that this defect caused the plaintiffs damages See Granda 935 So at 708 Without addressing whether the defective weld presented 2d an unreasonable risk of harm we find no merit to plaintiffs argument because it is clear that the defective weld was not the defect that caused Mr Wehriin accident or s the plaintiffs damages When Mr Gremillion ascertained that the Grove crane folding s boom extension was missing one weld it is undisputed that he told Mr Hitt not to use the folding boom e Further it is also undisputed that Dow was not using the ension folding boom extension when Mr Wehrlin accident occurred thus there was no s failure of the folding boom ension e because of the missing weld Simply put although Mr Wehrlin may have been removing the folding boom extension because of the defective weld he was not injured because of the defective weld This assignment of error is also without merit In summary we find H has pointed out to the court that there is an absence E of factual support for one or more elements essential to the plaintiffs custodiai liability claim under LSA art 2317 C 1 First there is insufficient proof to create a genuine issue of material fact as to whether H had knowledge that the metal eyelets could E not be used to levelly lift a folding boom eor a jib alone Second there is ension base no proof that the defective weld on the Grove crane folding boom extension caused s Mr Wehrlin accident For these reasons we conciude there are no genuine issues as s to material fact on the plaintiffs custodial liability claim and the trial court properly granted summary judgment on that claim in favor of H E SUMMARY JUDGMENT AS TO THE PLAINTIFFS NEGLIGENCE CLAIM In their third assignment of error the plaintiffs contend the trial court erred in granting summary judgment in favor of H because there are genuine issues of E material fact regarding H alleged negligence in allowing Dow to remove the jib s E without first confirming that Dow could safely do so In opposition H argues that it E 13 was not negligent in allowing a and experienced owner and user of sophisticated cranes like Dow to remove the jib We first note that similar to the rarity of summary judgment on subjective issues such as knowledge summary judgment is likewise not ordinarily appropriate for questions of negligence or for determinations regarding the reasonableness of a party s acts and conduct under all facts La 0187 Cancienne 12 p 3 App and circumstances lst Cir Lafourche Port Com 104 So at 88 n 3d 12 21 9 of the 3d So case See Biaas v and Greater Louisiana Civil Code articles 2315 and 2316 provide the basic codal foundation for delictual liability for intentional torts and negligence in our state See Granda 935 So at 707 2d 08 Louisiana courts have adopted a duty analysis in determining whether to impose liability under the risk general negligence principles of these articles For liability for damages to attach under a dury analysis a plaintiff must prove five separate elements 1 the defendant risk had a duty to conform his or her conduct to a specific standard of care the duty element 2 the defendant failed to conform his or her conduct to the appropriate standard of care the breach of duty element 3 the defendant substandard conduct s was a cause in fact of the plaintiffs injuries the cause in fact element 4 the ssubstandard conduct was a legal cause of the plaintiffs injuries the scope defendant of protection element and 5 actual damages the damage element Rideau v State Farm Mut Auto Ins Co 06 La App lst Cir 8 970 So 564 573 writ 0894 07 29 2d denied 07 La 1972 So 1168 When no factual dispute exists and no 2228 08 11 2d credibility determinations are required the legal question of the existence of a duty is appropriately addressed by summary judgment Boland v West Feliciana Parish Police JUry 03 La App lst Cir 6 878 So 808 816 writ denied 04 1297 04 25 2d 2286 La 11 888 So 231 04 24 2d damages are 06 29 3 934 all factual 2d So issues 112 However breach of duty cause in fact and actual Manno v Gutierrez 05 La App ist Cir 0476 17 116 As with the plaintiffs custodial liability claim discussed above H would not bear the burden of proof at trial on the plaintiffs E 14 negligence claim therefore H burden on the motion for summary judgment was to s E point out to the court that there was an absence of factual support for one or more elements essential to the plaintiffs negligence claim LSA art 966 At that P C 2 C point the burden would shift to the plaintiffs to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial Id In support of its argument that it breached no duty H points to the testimony E of several witnesses as establishing that its decision to accept Dow offer to remove s the jib was reasonable First H points to the conversation that occurred between E Mr Brown and Mr Hitt on the day the arrangement was made On December 22 2009 Mr Brown called Mr Hitt to inform him that two H field technicians were being E sent to Dow to remove the jib from the Grove crane so that it could be returned to s E H facility for performance of the PIP repair In response Mr Hitt told Mr Brown to simply send out an H truck and he would have his Dow employees remove the jib E and load it onto the truck for return to H facility The deposition testimony of both s E Mr Brown and Mr Hitt clearly indicates that neither man questioned the competence of s Dow employees to perform the task Mr Brown testified that he readily agreed to the arrangement based on his knowledge that Dow was aconscious company with safety highly qualified crane operators In explaining why he accepted Mr Hitt offer Mr s Brown stated in his deposition hen W I accepted that offer I did it for a couple of reasons Number one is because I had I know that Dow is not a fly company night by I know that not only is it a safety conscious company but the operators are highly qualified I also know that my mechanics I don tvisit the site m I in the shop and I pulled at from every angle ali day long But my people visit m the site They know these guys first name basis one on one Immediately after Craig Mr Hitt made this offer I had already told Brian Gremillion and Jared saddle up you going to Dow to re remove this I told him I said Craig Mr Hitt offered to have them take it off At that time even my people never hesitated to say great They t didn say oh I don know about that Nobody had a question as to t what was being done how it was being done or who was going to perform it or if it could be done safely It was just a sewing machine We talk to these people daily and when I say daily please don thold me to that Frequently 15 Further Mr Hitt deposition testimony also demonstrates that he had no s reservations about having his Dow employees remove the jib because he considered the jib removal to be a task for them The deposition testimony of Mssrs routine Wehrlin Folse and Spahr the three operators actually involved in the removal of the base jib also demonstrates that they considered jib removal to be a routine procedure and part of their regular job duties Finally H points to the testimony of E the plaintiffs expert Patrick Fisher as supporting the reasonableness of H decision s E When questioned by H counsel Mr Fisher agreed that an experienced crane s E operator would be expected to be able to safely remove a from a crane Based on jib his past dealings with Dow he also agreed that Dow was a safety very conscious company and it was reasonable for H to assume that Dow personnel could safely E remove a jib Once H presented the above evidence which indicates that its decision to E allow Dow to remove the jib was reasonable the burden shifted to the plaintiffs to produce factual support sufficient to establish that they would be able to prove H s E decision was unreasonable and hence the breach of a duty The plaintiffs argue that E H breached its duty because it knew the metal eyelets attached to the folding boom extension could not be used to lift a in a level manner and H failed to inform jib E Dow of this alleged defect We have previously rejected the plaintifFs argument that E H had such knowledge In disposing of the plaintiffs custodial liability claim we determined the plaintiffs had produced insufficient evidence that H had knowledge E that the metal eyelets could not be used to lift a folding boom e or a jib ension base alone in a level manner Thus the plaintiffs cannot again rely on this alieged knowledge to establish H acted unreasonably in aliowing Dow to remove the jib E because they have presented insufficient evidence to show that H even had this E knowledge of the alleged defect If H had no knowledge that the metal eyelets could E not be used to lift the jib in a level manner it breached no duty by failing to inform 16 Dow not to use the metal eyelets The plaintiffs argument to the contrary is without merit Summary judgment on a negligence claim may be granted when a plaintiff fails to submit suff evidence to create a genuine issue of material fact that the icient defendant breached a duty See Daniels v USA Casualty Insurance Company encies 1357 11 La App lst Cir 5 92 So 1049 1058 summary judgment 12 3 3d appropriate where plaintiff failed to submit proof that motorist conduct constituted a s breach of any duty owed by a rescuer who was confronted with an emergency situation Ber v Argonaut Great Central Insurance Company 10 La App eron 0842 lst Cir 3J21 64 So 255 259 summary judgment appropriate where restaurant 11 3d failed to submit sufficient proof that state agency breached its duty to enforce sanitary code Gunter v Jefferson Davis Parish i1 La App 3rd Cir 2 84 So 1018 12 1 3d 705 709 summary judgment properly granted where wrongful death plaintiff failed 10 to produce sufficient evidence to establish that police officers acted unreasonably in responding to alleged domestic dispute Based on our de novo review of the record we find the plaintiffs have failed to produce sufficient proof to create a genuine issue of material fact that H breached E the alleged duty in this case H has pointed out to the court that there is insufficient E proof to show that H was unreasonable in accepting Dow offer to remove the jib E s We agree that the summary judgment evidence consisting of testimony that H and E Dow both considered jib removal to be a task that Dow employees were routine clearly qualified to perform demonstrates that H decision to accept Dow offer to s E s remove the jib was indeed reasonable Because the plaintiffs have failed to produce sufficient evidence to show they will be able to carry their burden of proving a breach of this duty by H at trial which is an essential element of their negligence claim we E conclude the trial court properly granted summary judgment in H favor on their s E negligence claim 17 CONCLUSION For the foregoing reasons we affirm the trial court summary judgment in favor s of H Equipment Services Inc which dismissed all claims asserted by Chad Wehrlin E and Michelle Wehrlin individually and on behalf of their minor chiidren Bailey Wehrlin and Korey Miller against E H Equipment Services assessed to the plaintiffs AFFIRMED 18 Inc Costs of this appeal are CHAD WEHRLIN FIRST CIRCUIT ET AL COURT OF APPEAL VERSUS STATE OF LOUISIANA THE MANTTOWOC NO 2012 CA 0893 COMPANY INC ET AL WELCH J dissenting A motion for summary judgment is rarely appropriate to dispose of a case requiring determination of subjective facts such as knowledge Mareover issues requiring the determination of reasonableness of acts and conduct of the parties under all of the facts and circumstances of the case cannot ordinarily be disposed of by summary judgment Greater Lafourche Port Commission v James Construction Group L 2011 La App l Cir 9 104 So C 1548 12 21 3d 84 88 I do not find this case to present one of those rare instances where summary judgment is warranted on the subjective issue of knowledge or on the issue of the reasonableness of a defendant conduct Instead I find that there are s genuine issues of material fact with respect to H liability under both theories s E advanced by plaintiffs that preclude the granting of summary judgment in favor of E H Therefore I respectfully dissent One theory of liability advanced by plaintiffs is that H breached its duty E to exercise reasonable care by failing to timely implement the PIP repair Plaintiffs contend that H conduct in allowing the crane to remain in service after it s E discovered the missing weld violated OSHA regulations requiring that a defective crane be taken out of service for repair They submit that had H timely E performed the PIP repair when it discovered the missing weld in September 2009 by using its own jib removal procedures Mr Wehrlin accident would not have s occurred in December 2009 duty to exercise reasonable Plaintiffs further contend that H breach of its s E care was not absolved by s Dow subsequent offer to remove the jib and that the trial court erred in concluding that Dow offer to s remove the jib absolved E H of s E liability for H own negligence In opposition H contends that there is no evidence to support a factual finding E that its delay in implementing the PIP repair was the cause of Mr Wehrlin s accident The evidence on the motion for summary judgment reflects that Patrick Fisher an expert civil engineer who has experience in rigging cranes safety and related OSHA matters initially stated in his deposirion that given the same set of circumstances Mr Wehrlin accident would still have occurred even if the jib s had been removed in September 2009 when the defective weld was discovered However Mr Fisher had previously prepared an Accident Evaluation Industrial in which he concluded that the failure by Grove and H to timely and properly E implement the PIP contributed to the events of this incident Mr Fisher report s also found that the duty and obligation of H as an authorized distributor and E owner of the Grove crane was to comply with the directive in a timely manner however the PIP was neglected for 17 months and neglected during annual mandatory OSHA inspections His report further stated that OSHA regulations require that any conditions noted through inspections shall be corrected befare operation of the crane is resumed He concluded t documentary evidence he indicated that multiple inspections by H representatives of the Grove crane E occurred and that the labels and weld defects in the bi boom extension fold assembly should have caused the inspections to be unsatisfactory and caused the crane to be taken out of service until the deficiencies were corrected and re inspected Later when questioned by plaintiffs attorney Mr Fisher opined that had H acted earlier employing the procedures H utilized itself using two E E cranes and then taking off the jib the accident would not have happened Lastly Mr Fisher agreed with plaintiffs attomey position that s a reasonably prudent operator would have taken the crane out of service long before the date of Mr s Wehrlin accident Additionally H service manager at the time of the accident Mr s E Brown admitted in his deposition that the lapse of time between H receipt of s E the PIP in April 2008 and its inspection of the crane in September 2009 was excessive He also admitted that the inspection should have been performed sooner than September 2009 to determine if the PIP repair was required I conclude that this evidence is sufficient to create a genuine issue of material fact as to whether H delay in performing the PIP repair was s E unreasonable and whether that conduct was a substantial factor in causing the accident The reasonableness of H conduct regarding implementation of the s E PIP repair is a factual question that can only be answered after examining all of the facts and circumstances of the case Thus I find that the trial court erred in granting summary judgment in favor of H on plaintiffs negligence claim E Furthermore I believe that there are genuine issues of material fact on the knowledge portion of plaintiffs custodial liability claim that likewise preclude the granting of summary judgment on that theory of liability To succeed at trial plaintiffs must prove that H had constructive knowledge of the alleged defect E the improperly placed metal eyelets lifting lugs welded to the top of the crane s base jib I find that the testimony ofMr Simoneaux H service manager and s E evidence of the custom and practices in the industry create a genuine issue of fact as to whether H knew or should have known that it was improper to use the E lifting lugs because the equipment would not lift level For the above reasons I would reverse the summary judgment entered in favor of H and remand to the trial E court for further proceedings
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