GREMILLION, Judge.
In this tort action, Basil Fisher appeals the summary judgment granted to the Catahoula Parish Police Jury (the police jury) that dismissed his action. For the reasons that follow, we affirm.
Mr. Fisher's Petition for Damages alleges that he was injured on February 1, 2011. He was incarcerated at the Catahoula Parish jail, located in the Catahoula Parish Courthouse. The courthouse was heated by a gas-fired furnace, which Mr. Fisher alleged was old and had been poorly maintained. As a trusty, Mr. Fisher was charged with keeping the furnace lit and operating. He and another trusty, Mr. Marcus McCarthy, were attempting to relight the pilot light, which kept blowing out due to "faulty equipment and drafts in the building." On the date of the incident, Mr. Fisher was lighting the pilot on the furnace as he had many times before, when a jet of flame shot up from an area above the pilot. The gas exploded, allegedly causing Mr. Fisher injury. He sued the Catahoula Parish Police Jury, owner and custodian of the courthouse; the Catahoula Parish Sheriff, James Kelly, which he incorrectly named as the "Catahoula Parish Sheriff's Office"; the State of Louisiana, through the Department of Public Safety and Corrections; and Peerless Heater Company.
The police jury answered denying the allegations. It thereafter filed a Motion for Summary Judgment in which it maintained that it had no notice of any defect in the furnace in question; accordingly, by virtue of La.R.S. 9:2800, it was not liable, and that, pursuant to the terms of La.R.S. 15:708(H), inmates participating in an inmate labor program are denied a cause of action for injuries received in the course of participation in such programs absent a showing of intentional or grossly negligent conduct on the part of the sheriff or parish. The police jury supported its motion with the depositions of Mr. Fisher and Mr. McCarthy, and the affidavit of Ms. Patti Mizzel, the police jury's Secretary-Treasurer.
Mr. Fisher opposed the motion with his own affidavit; the affidavit of Mr. McCarthy; a report from the Catahoula Parish Sheriff; a service report from a technician from ACA; the report of the Harrisonburg Volunteer Fire Department; the deposition of Ms. Mizzel; the deposition of Ms.
The trial court granted summary judgment in favor of the police jury and the sheriff. Mr. Fisher only appealed the judgment in favor of the police jury.
Mr. Fisher's assignments of error read as follows:
Berard v. Home State County Mut. Ins. Co., 2011-1372, p. 2 (La.App. 3 Cir. 5/9/12), 89 So.3d 470, 471-72.
As a general rule, a public entity is liable for damages caused by the conditions of buildings within its custody and control, but proof of actual or constructive notice of the particular vice or defect that caused injury is required to maintain a cause of action. La.R.S. 9:2800. Louisiana Revised Statutes 9:2800(A) provides, "A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody." Louisiana Civil Code article 2317, in turn, provides, "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications." Among those modifications is La. Civ.Code art 2317.1, which governs liability for ruin, vice, and defect of things within one's custody, and which requires proof of actual or constructive notice. This interpretation of La.R.S. 9:2800(A) is bolstered by another "modification" of La.Civ.Code art. 2317, found in La.Civ.Code art. 2322, which reads (emphasis added):
A public entity is deemed to have constructive notice if the defect existed for such a period of time that it should reasonably have discovered it. Jagneaux v. Lafayette City-Parish Consol. Gov't Parks and Recreation, 13-768 (La.App. 3 Cir. 12/11/13), 128 So.3d 681.
Mr. Fisher testified that he had no knowledge of any complaints about the heater before the February 1, 2011 incident, and he has no reason to believe that the police jury had knowledge that the furnace would malfunction. He had performed the same procedure for lighting the furnace several times before and experienced no problem.
Mr. McCarthy had no previous experience lighting the pilot. He has no knowledge of any previous problems with the furnace, other than a statement by Ms. Mizzel that the pilot blows out when a set of double doors in the area are opened. He attempted to light the pilot first, by igniting a piece of newspaper and holding it near the pilot. When that did not work, Mr. Fisher told Mr. McCarthy that he would try. The explosion followed Mr. Fisher's attempt to light the pilot.
Ms. Mizzel's affidavit indicates that as the secretary-treasurer of the police jury, she was not aware of any problems with the furnace. She had never received any complaints about the furnace. The furnace was regularly inspected before this incident, with no problems noted.
These exhibits to the police jury's motion establish an absence of material fact regarding two elements of Mr. Fisher's case: proof of a vice or defect and actual or constructive notice. By the terms of La.Code Civ.P. art. 966(C)(2), the burden of producing evidence sufficient to establish that he would be able to satisfy his burden of proof at trial shifted to Mr. Fisher.
The trial court found that Mr. Fisher failed to prove the existence of a vice or defect that posed an unreasonable risk of harm, that Mr. Fisher failed to demonstrate that the police jury had actual or constructive notice of any defect, and that the police jury was immune to liability pursuant to La.R.S. 15:708.
All that is necessary to affirm the trial court's judgment is the absence of factual support for one essential element of Mr. Fisher's claim. Actual or constructive notice of a defect is conspicuously absent from this case. Mr. Fisher has utterly failed to point out any factual support for the proposition that any defect in the furnace existed for any length of time. All Mr. Fisher has argued is that he was instructed to engage in lighting the boiler, which he claims is an ultra-hazardous activity. Thus, he argues, the police jury should not be immune under La.R.S. 15:708, because instructing him to light the furnace amounted to gross negligence.
The problem with this argument is that it ignores the most fundamental issue in the case, the police jury's liability for the alleged defect. Without liability, there is no need to invoke immunity from that liability. And Mr. Fisher has failed to cross that threshold. In an attempt to cross the threshold, Mr. Fisher has argued that we should apply the doctrine of res ipsa loquitur. We decline to apply the doctrine.
The doctrine of res ipsa loquitur, though, only addresses the issue of standard of conduct by a defendant. It fails to address the issue of actual or constructive notice. This cannot be presumed, except as La.R.S. 9:2800 allows; that is, knowledge or notice is presumed if the defect has existed for such a period of time that the police jury should reasonably have discovered it.
Mr. Fisher further argues that his submissions, particularly his affidavit, that of Mr. McCarthy, the report of ACA and that of the Harrisonburg Volunteer Fire Department. The ACA report states, under a section entitled "Notes about the Fire," "Someone attempting to re-ignite the furnace. Gas must have built up in the furnace and ignited causing an explosion and damage to the furnace."
The ACA report, in describing the "Repair Procedure," states:
These two reports, Mr. Fisher argues, created a genuine issue of material fact regarding the existence of a defect in the boiler. These two exhibits pose a difficulty for the court.
Louisiana Code of Civil Procedure article 966(B)(2) provides, in pertinent part (Emphasis added):
It has long been recognized that unsworn and unverified documents do not warrant consideration in determining a motion for summary judgment, because they do not constitute admissible evidence. Swido v. Lafayette Ins. Co., 04-1674, (La.App. 3 Cir. 11/2/15), 916 So.2d 399, writ denied, 05-2509 (La. 3/31/06), 925 So.2d 1261.
However, 2013 La. Acts No. 391 amended La.Code Civ. P. art. 966(F)(2) and (3) to provide that evidence attached to a motion for summary judgment or memorandum in support or opposing such a motion "is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection[.]" Such objections must be raised in a memorandum or motion to strike. That act did not amend Subsection (B)(2). This conflict within article 966 raises the question of whether these two exhibits should be considered at all; clearly, before Act 391, they would not have been.
The affidavits of Mr. Fisher and Mr. McCarthy pose a similar issue. In their affidavits, the two men stated, "Two weeks after the explosion an insurance company adjuster came to the courthouse and I did
While these questions create an interesting intellectual exercise for the civilian scholar, they are of no moment in the present case. It was incumbent upon Mr. Fisher to produce evidence that the police jury knew of a defect or that the defect existed for such a period of time that the police jury should have known of it. No such evidence was submitted.
There is no proof that the Catahoula Police Jury knew or should have known of any alleged defect in the furnace prior to the incident of February 1, 2011. Accordingly, the judgment of the trial court dismissing the demand of Basil Fisher against the Catahoula Parish Police Jury is affirmed. All costs of this appeal are taxed to Plaintiff/Appellant, Basil Fisher.
COOKS, Judge, dissents and assigns written reasons.
COOKS, J., dissents.
Fisher alleges he was seriously injured when the boiler, also referred to as a gas-fired furnace, in the Catahoula Parish Courthouse exploded while he was attempting to light the pilot. The boiler was over thirty years old. Fisher worked for the Police Jury as a Trustee provided by Catahoula Parish Sheriff James Kelly (Sheriff Kelly). He performed daily maintenance at the Catahoula Parish Courthouse under the direction of the Police Jury's representative, Ms. Patti Mizzel (Mizzel). Fisher was incarcerated in the Catahoula Parish Jail located in the basement level of the Courthouse just outside the boiler room. He is serving time in the custody of the Department of Corrections for drug offenses and is scheduled to be released in 2017, at which time he plans to return to New Orleans to care for his aging parents. Fisher suffered severe and disabling injuries, including loss of hearing and eyesight, as well as burns, resulting from the explosion.
The Catahoula Parish Police Jury is charged by statute with the custody, care and control of the Courthouse building and is statutorily responsible for maintaining the building and its component parts in a "sufficient" state. La. R.S. 33:4713 provides in pertinent part: "Each Parish
Both the Sheriff and Ms. Mizzel admitted the Police Jury could not afford to hire a regular custodian/janitor for the building. The Police Jury chose to release the maintenance workers it had on staff for many years. Ms. Ford, the Jury's President, approached the Sheriff and requested
Fisher and McCarthy, by sworn testimony, both stated their duties included lighting the boiler which exploded causing Fisher serious injuries. According to Fisher, Ms. Mizzel called him in the office and asked him to watch "Billy," the AC/Heating service technician, to learn how to relight the pilot because the Parish could not afford to pay every time the boiler "went out." From that day to the time of the accident in question, Fisher stated he continued to relight the boiler when called to do so by Ms. Mizzel.
Fisher alleged: (1) The boiler explosion occurred because it was old and not properly maintained; (2) the Police Jury failed to provide proper maintenance for the boiler and gas piping in the building; (3) the Police Jury allowed him to engage in an ultra-hazardous activity without proper equipment, training or supervision; and (4) he was
The Police Jury filed a Motion for Summary Judgment asserting it had no notice of any defect in the boiler/furnace; and thus, under the provisions of La.R.S. 9:2800(C), it is not liable for any injuries to Fisher. Additionally, the Police Jury alleged under La.R.S. 15:708(H), inmates, such as Fisher participating in an inmate labor program, are denied a cause of action for injuries unless the inmate can show intentional or gross negligence on the part of the Sheriff or the Police Jury. The Police Jury affirmatively raised this statutory immunity as a bar to recovery by Fisher for
In its written reasons for judgment, the trial court found:
The majority affirms the trial court ruling, finding Fisher cannot prove that actual or constructive notice was given to the Police Jury of the vice or defect which caused his injuries. The majority explains that "[a]ll that is necessary to affirm the trial court's judgment is the absence of factual support for one essential element of Mr. Fisher's claim." It finds "actual or constructive notice is conspicuously absent from this case," and rejects Fisher's attempt to apply the doctrine of res ipsa loquitur.
The trial court made no mention of Fisher's status as an employee of the Police Jury. The sworn statements of Fisher, McCarthy, the Sheriff, the Warden, the Police Jury's President, Ms. Mizzel, and Frankie Tolar clearly set forth sufficient facts to establish Fisher was working as a trustee laborer for the Police Jury at the time of the accident. Fisher alleged in his petition that he was working as an inmate trustee for the Police Jury at the time of the mishap. The Police Jury contends since the men allegedly were not authorized to light the pilot, they became trespassers. At all other times, even on the date in question and just minutes prior to the explosion, it is undisputed Fisher worked at the Courthouse as a janitor and maintenance laborer under the direct supervision of the Police Jury's employees. The immunity defense upon which the Police Jury relies in this case does not extend to
Louisiana's Workers' Compensation Act provides in La.R.S. 23:1034:
The provisions of this Chapter shall apply to every person in the service of
La.R.S. 23:1044 also provides a person rendering service for another is presumed to be an employee. DOC inmate Trustees, who are performing services for a political subdivision, are not statutorily exempted from the application of this presumption. Further, the immunity from liability granted to governmental entities established in La.R.S. 15:708(H) is not all encompassing. First, the immunity applies only to tort actions and not to claims which may be raised pursuant to Louisiana's Workers' Compensation Act. And even as applied to tort claims, the immunity is not absolute. These government agencies are still liable for gross negligence and intentional acts.
Unlike La. R.S.15:708, which applies to inmates sentenced to serve their time in parish jails or awaiting transfer to state facilities, DOC trustee inmates released to local authorities for employment in work release programs are regulated exclusively by La. R.S. 15:711. This statute does not contain any immunity section. It also does not contain any language excepting these trustees from coverage under the Louisiana Workers' Compensation Act. This is so because these inmates have voluntarily consented to work outside the jails or prisons. Oftentimes, they are employed by private businesses, but in this case they were working for the Police Jury which actively sought their services.
The only exceptions to the payment of workers compensation benefits to persons who are incarcerated is found in La.R.S. 23:1201.4:
Additionally, the Louisiana Workers' Compensation Act specifically provides in La. R.S. 23:13:
The courts have long recognized that work release inmates are employees of their private employers and are entitled to workers' compensation benefits. In Gobert v. S.W.D.I., L.L.C., 08-1598 (La.App. 1 Cir. 5/5/09), 13 So.3d 608, Mr. Gobert was a Louisiana Department of Public Safety and Corrections inmate working in a work release program when he was injured while riding on the back of a garbage truck. Gobert was employed by a private enterprise. Reversing the trial court's grant of an exception of no cause of
The trial court erred in dismissing the Police Jury with prejudice from all claims presented by Fisher which have not yet prescribed. When a tort suit is filed prior to a workers' compensation claim it interrupts prescription of the workers' compensation claim. Gatlin v. Cox Communications, Inc., 02-32, p. 2 (La.App. 5 Cir. 4/30/01), 818 So.2d 801, citing Williams v. Sewerage & Water Board of New Orleans, 92-1688 (La. 11/19/93), 611 So.2d 1383. The trial court made no ruling on the issue of Fisher's status. In this case, Fisher consented to participate in the work release program and consented to the special courthouse assignment. The Police Jury accepted Fisher's services and they directed and controlled his daily activities.
There are no reported cases that hold parishes or municipalities are exempted from the reach of Louisiana's Workers' Compensation Act or that inmate workers, like Fisher, do not acquire the status of employees while in the service of these governmental bodies. The courts have recognized only one exception to coverage of inmate trustee workers under the Workers' Compensation Act. The courts have held inmates who perform work in jails, at prison facilities, or on certain special road cleanup detail crews are not free to consent. These inmates are stripped of the right to consent—a necessary component to any valid contract of employment.
It has long been declared that they possess the right to consent and enter employment relationships with private employers. See White v. BHB Oil, 45,173 p. 6 (La.App. 2 Cir. 4/14/10), 34 So.3d 1115, 1119; Clinton v. Reigel By-Products, supra; Becnel v. Charlet, 446 So.2d 466 (La. App. 4 Cir.1984); Parker v. State, 353 So.2d 333 (La.App. 1 Cir.1977), writ denied, 354 So.2d 1375 (La.1978); La. Atty. Gen. Op. Nos. 00-501, 94-456, 79-1502. See also Ardoin v. SWDI, 05-334 (La.App. 3 Cir. 11/2/05), 915 So.2d 1012.
White v. BHB Oil, 45,173 p. 6 (La.App. 2 Cir. 4/14/10), 34 So.3d 1115, 1119.
Furthermore,
Rogers v. Louisiana Dept. of Corrections, 43,000 p. 6 (La. 2 Cir. 4/30/08), 982 So.2d 252, 257 (emphasis added).
Fisher's petition clearly states material facts sufficient to set forth a claim under Louisiana's special Workers' Compensation Act. As indicated by the Louisiana Supreme Court in Brewton v. Underwriters Insurance Co., 2002-2852 (La. 6/27/03), 848 So.2d 586, the underlying issue of whether Fisher was injured in a work related accident covered by the Louisiana Workers' Compensation Act is a jurisdictional issue which the trial court should entertain before proceeding on the tort claim. See Rogers v. Louisiana Dept. of Corrections, 43,000 (La.App. 2d Cir. 04/30/08), 982 So.2d 252, writ denied, 2008-1178 (La.09/19/08), 992 So.2d 931. Defendant's failure to raise the exclusive remedy defense in its motion for summary judgment or to file the appropriate exception does not confer jurisdiction on the trial court to dismiss Fisher's potential work injury claim by broadly applying the immunity found in La. 15:708(H).
As far back as 1966, this court has held that "
Id., 725-26.
The Police Jury offered no proof that the "explosion resulted from causes beyond
Ms. Mizzel testified in deposition she never told Warden Montpelier or the inmate trustees that they were not to be in the boiler room, and she admitted she would ask both the Warden and the trustees to do certain services in the courthouse. Fisher asserts, and Sheriff Kelly supports his assertion, that Ms. Mizzel directed his daily activities relating to maintaining the courthouse inside and outside the building. Fisher stated he would freely go in and out of the boiler room and Mizzel directed him to light the pilot on many occasions. Additionally, in his affidavit, Fisher states that two weeks after the explosion the insurance company's adjuster came to the courthouse and did a walk-through with Fisher and McCarthy, a fellow Trustee, in the boiler room. Fisher states the adjuster concluded, after his inspection of the boiler,
Summary judgment in favor of the Police Jury is not appropriate in this case. Trial on the merit by summary judgment process is not permitted. The Police Jury presented "no evidence" of sufficient weight to require even a response from Plaintiff. All it did was to file a Motion for Summary Judgment full of self-serving conclusions, which are not supported by "undisputed facts." Although the excerpts from the depositions of the prisoners contain numerous pages, the Police Jury directs this court's attention to the prisoner's acknowledgment that they did not know of any defect in the boiler when they tried to light it, and they did not give prior notice to the Police Jury that a defect existed. Ipso, the Police Jury did not have prior notice of the defect and therefore it cannot be held liable for the explosion. End of story, Plaintiff loses. That's absurd!
The trial court applied the wrong statutory section of La.R.S. 9:2800. In Demery v. Housing Authority of New Orleans, 96-1024, p. (La. 4 Cir. 2/12/97), 689 So.2d 659, 665 (emphasis added), the Fourth Circuit held "[T]hat actual or constructive notice [of a defect in a public building is] not required. La.Rev.Stat. 9:2800(A) excludes the requirement of notice for defects of buildings" owned and controlled by a public entity. Likewise, in Jackson v. Beasley, 30,359, p. 6 (La.App. 2 Cir. 4/8/98), 712 So.2d 162, 166 (emphasis added) the court held:
The requirement of actual or constructive notice applies only to "things" other than a building in the care and custody of a public entity. The Police Jury had a duty to keep its premises safe from unreasonable risk of harm and to warn of any dangers it knew of or should have known of with the exercise of reasonable care. La.R.S. 9:2800, and, see Davis v. Burke's Outlet Stores, 14-686 (La.App. 3 Cir. 12/10/14), 155 So.3d 664. In Davis, a panel of this court, which included Judge Pickett, explained the basis for determining what constitutes an unreasonable risk of harm:
Davis, page 4 (emphasis added). There are numerous facts and circumstances in this case genuinely in dispute bearing on the determination of whether Fisher was exposed to a dangerous condition which presented an unreasonable risk of harm.
The boiler or furnace in this case and the natural gas line supplying gas to it are component parts of the courthouse building by legal definition provided in La.Civ. Code art. 466 (emphasis added):
Not only is the boiler or furnace which exploded a component part of the building,
In its written reasons for judgment, the trial court set forth the provisions of La. R.S. 9:2800 and emphasized the language in the statute upon which it relied in granting summary judgment as follows:
It is apparent from the underscored language the trial court committed legal error by relying on the prior notice requirement of La. R.S. 9:2800 in summarily dismissing Plaintiff's case. It is Section (A) which applies in this case. The cases relied upon by the trial court are not applicable. Further, none of the cases relied upon by the trial court involve a building owned by a public entity. Boland v. West Feliciana Parish Police Jury, 03-1297 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, concerns the condition of a bridge; Bessard v. State, D.O.T.D., 645 So.2d 1134 (La. 11/30/94) concerns a hole in concrete curbing; Henderson v. Nissan Motor Corp., 03-606 (La.2/6/04), 869 So.2d 62, is an auto accident case involving the condition of a roadway maintained by DOTD; Hardenstein v. Cook Constr., Inc., 96-0829 (La.App. 1 Cir. 2/14/97), 691 So.2d 177, is an auto accident case involving highway repairs; and Toston v. Pardon, 03-1747 (La. 4/23/04), 874 So.2d 791, is also an auto accident case concerning signage at an intersection. The trial court clearly erred as a matter of law. Likewise, the only case cited by the present Majority in affirming the trial court, Jagneaux v. Lafayette City-Parish Consol. Gov't Parks and Recreation, 13-768 (La.App. 3 Cir. 12/11/13), 128 So.3d 681, is likewise inapplicable to this case. Jagneaux involves the determination of liability concerning the condition of bleachers on the baseball field, a "thing," in the custody and control of the public entity subject to the requirements of notice, not, as here, a "building" specifically exempted from the notice requirement.
Here, Plaintiff's burden is not so onerous. He was not required to "prove" the Police Jury had prior or constructive notice of the alleged defect or the unreasonably dangerous condition. When the author
To grant summary judgment in this case both the trial judge and this Court had to weigh the facts and credibility of the witnesses or ignore the record evidence altogether. In the end they had to ascribe 100% credibility to Ms. Mizzel and ascribe absolutely no credibility to Sheriff Kelly, Warden Montpelier, Mr. Fisher or Mr. Marcus McCarthy.
Sheriff Kelly and Warden Montpelier both testified that inmate Trustees have free and open access to the boiler room as well as to all offices in the courthouse including judges' offices, and the Sheriff's private office, even when no one else is in those offices. This is so, says the Sheriff, because Trustees such as Fisher have proved their trustworthiness before being sent to him by DOC. Additionally, the Sheriff testified Trustees do only what they are told to do on pain of being returned to a state penal facility for doing something they have not been told to do. Fisher testified Ms. Mizzel, as the Police Jury representative, gave him his daily instructions and controlled his work duties. This testimony supports Fisher's assertion that he was instructed by the Police Jury's representative at the courthouse, Ms. Mizzel, to light the pilot on the boiler when cold weather was approaching and to re-light the pilot whenever he would discover it had been extinguished. Ms. Mizzel, and Police Jury President, Ms. Libby Ford, contend that no one on the Police Jury ever directed Fisher to light the pilot light on the boiler, and Ms. Mizzel says she had no knowledge of the pilot light ever going out for any reason for a period of nine years. There is substantial testimony that the pilot on this boiler did not burn continuously through all seasons; and it often required relighting after being extinguished by the draft created from opening the entry door to the boiler room. But even Ms. Mizzel's credibility cannot be judged on a motion for summary judgment. These alleged facts are genuinely disputed and material in determining whether Fisher was exposed to an unreasonable risk of harm which the Police Jury knew or should have known existed.
Neither can this Court ignore other evidence in the record pointing to the existence of a defect in the boiler. The ACA Air Condition Tech's service report notes the "possible reason" for the explosion "is [that the] pilot was out and valve was stuck open. This caused boiler chamber to fill with gas, causing it to explode." A leaking valve and stuck emergency switch which allows gas to build up inside the chamber and cause an explosion when anyone attempts to light the pilot is evidence of a "defect" in the boiler. Fisher stated the Insurance Adjuster, after inspecting the boiler following the explosion, concluded "a big valve on the furnace was leaking and the emergency switch was not working." The Fire Department report states "gas must have been built up inside the furnace and ignited causing explosion."
The majority cites Swido v. Lafayette Ins. Co., 04-1674 (La.App. 3 Cir. 11/2/05), 916 So.2d 399, writ denied, 05-2509 (La. 3/31/06), 925 So.2d 1261, for the proposition that "unsworn and unverified documents do not warrant consideration in determining a motion for summary judgment, because they do not constitute admissible evidence." Thus, the two judges on appeal proceeded to ignore all the direct evidence of the defect Fisher presented in connection with the Motion for Summary Judgment. The "report from ACA Commercial Services, LLC," attached as Exhibit "C" in filed in the record, was provided by the Police Jury to the Plaintiff in response to discovery pleadings. In further response the Police Jury stated that its insurance agent conducted an investigation of this incident. In its response to production of documents, the Police Jury provided photographs of the boiler, the Harrisonburg Volunteer Fire Department report, the Catahoula Parish Sheriff's Office report, and the ACA Commercial Services, LLC service report. Though mentioned, it did not produce a copy of the Insurance Adjuster's report. It promised to provide any other documents as such became available. Fisher attached to his affidavit the documents provided to him by the Police Jury in response to discovery and entered into evidence at the motion for summary judgment all of the Police Jury's responses to interrogatories and requests for production.
Louisiana Code of Civil Procedure Article 966 (effective August 1, 2013 to July 1, 2014) provides that a motion for summary judgment is supported, or opposed by "pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment" Under La.Code Civ. P. art. 966(F), (effective August 1, 2013 to July 31, 2014), these items are deemed admissible and are appropriate for consideration on summary judgment:
The Majority acknowledges that La.Code of Civil Procedure article 966(F)(2) and (3) as amended "deems" the reports submitted as attachments to Fisher's response to the Motion for Summary Judgment admitted in evidence. But the Majority complains: "This conflict within article 966 raises the question of whether these two exhibits should be considered at all; clearly, before Act 391, they would not have been." What conflict? While the Majority may question the wisdom of the Legislature; the two members do not have authority to ignore laws passed by it.
In Rhodes v. Executive Risk Consultants, Inc., 26,021, p. (La.App. 2 Cir. 8/17/94), 642 So.2d 269, (emphasis added) the Second Circuit said:
When viewed in a light most favorable to Fisher, the reasonable inferences from the exhibits attached to Fisher's affidavit which were provided to him by Defendant as part of its business records in response to discovery are telling and suggest a reasonable basis for finding Defendant liable. As in Rhodes, "real doubt as to the existence of material fact cannot be excluded." At minimum these submissions create a genuine issue regarding the existence of a defect and whether the Police Jury "should have known" of this defect by virtue of its obligation to maintain, and have trained technicians regularly service, the aging boiler. There is nothing in this record establishing or remotely suggesting that a leaking valve and a stuck emergency switch are common occurrences or expected events in the life of properly maintained boilers.
No one had to tell the Police Jury anything! Louisiana Civil Code Article 2317.1 (emphasis added) provides:
The law prescribes criminal penalties for the operation of such boilers without the required inspection certificates. The statutes regulating the installation, inspection, and maintenance of boilers are indicative of their inherently dangerous nature and the absolute necessity that they be regularly maintained only by certified, licensed and trained individuals, not by unskilled, unschooled prisoner-Trustees.
The Majority's decision to disregard all of the direct evidence of a defect presented by Plaintiff makes this case one which must as a consequence rest on circumstantial evidence on appeal. The doctrine of res ipsa loquitur is applicable in circumstantial evidence cases. Louisiana Civil Code Article 2317.1 specifically provides "[n]othing in this article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case." This case on summary judgment is "peculiarly" suited to applying the doctrine of res ipsa loquitur. Drago, 126 So. at 726. A boiler should not explode when the pilot is relit in the absence of negligence or action of the plaintiff or a third party. There is no evidence that Plaintiff or a third party caused the boiler to explode. Defendant had the duty to guard against the defect by securing the service of certified and trained technicians to properly maintain and repair the boiler. Plaintiff may rely on the doctrine of res ipsa loquitur to supply an inference that a defect existed which was occasioned by defendant's lack of care—negligence. See Linnear v. Centerpoint, 06-3030 (La.2007), 966 So.2d 36. There is no dispute plaintiff was injured during the explosion.
The trial court also erred in finding the Police Jury was immune from suit under the provisions of La.R.S. 15:708. (The majority deems it unnecessary to discuss this immunity provision under its holding.) According to Sheriff Kelly, Fisher is a Louisiana Department of Corrections inmate classified as a "Class `A'" Trustee on loan to the Parish as a Trustee from DOC. Plaintiff was sentenced to ten years imprisonment for three felony offenses. He is not an inmate "sentenced to a parish prison." Louisiana Revised Statute 15:708, by its express terms, applies only to "a prisoner sentenced to a parish prison of any parish of the state, by any court of competent jurisdiction, or a prisoner in a parish prison awaiting transfer to a state correctional facility." La.R.S. 15:708(A)(1), (2)(a), (3)(a), and (4). The provisions also apply to "a person convicted of a misdemeanor for violation of any state law or any parish or municipal ordinance and is sentenced to imprisonment" and ordered by the court "to participate in a court-approved workday release program." La.R.S. 15:708(D)(1)(a). These provisions are inapplicable to Plaintiff because he is not a person covered by this statute.
Additionally, the statute by its express terms is not applicable when injury is "caused by the intentional or grossly negligent act or omission" of a public body, and
All of the admitted facts create a genuine and material issue regarding whether the Police Jury was grossly negligent in exposing Fisher to an unreasonable risk of harm. Further, it is an undisputed fact that the doors leading to the room housing the boiler are not locked and are accessible to anyone, including Plaintiff and members of the public. Sheriff Kelly and Warden Montpelier testified, as did Fisher, that Trustees do in fact go in and out of the boiler room at-will to retrieve supplies for maintenance of the courthouse. Ms. Mizzel admits she never told the Warden or the Trustees not to go in the boiler room. There are no signs warning that anyone but a licensed and qualified person should not attempt to light the boiler or service it in any manner. And, there is testimony that Ms. Mizzel was aware the pilot light on the boiler had to be repeatedly lit because the opening and closing of the unlocked doors to the boiler room cause the pilot light to be extinguished. The trier of fact might well conclude the Police jury was grossly negligence (1) in failing to take measures to prevent the boiler pilot flame from extinguishing when the door opened; (2) in failing to lock the door to the boiler room and allowing only qualified service men to enter it; (3) in instructing an inmate trustee to relight the pilot; and (4) in failing to alert the untrained trustees not to light the pilot but to call for a certified technician.
As noted we have repeatedly held that the court may not engage in credibility determinations or weighing of evidence on summary judgment. As this court stated in Fusilier v. Dauterive, 99-692 (La.App. 3 Cir. 12/22/99), 759 So.2d 821, 831, reversed on other grounds by 2000-151 (La. 7/14/00), 764 So.2d 74 (emphasis added):
As we have also often stated: "Issues of credibility have no place in summary judgment procedure. Hinds v. Clean Land Air Water Corp., 96-1058 (La.App. 3 Cir. 4/30/97), 693 So.2d 321. Any of the State's conclusions, which are contained within the records, cannot be substituted for the fact-finding process provided by a trial." Carriere v. State, 708 So.2d 822, 824 (La.App. 3 Cir.1998) (emphasis added).
Mouton v. Sears Roebuck, 99-669 (La.App. 3 Cir. 11/31/99), 748 So.2d 61, 67, writ denied, 99-3386 (La.2/4/00), 754 So.2d 232 (emphasis added). Fisher has submitted substantial evidence which creates many genuine issues of material fact which should be resolved by the trier of fact in this matter after full trial on the merits.
The facts alleged within the four corners of Plaintiff's petition must be accepted as true. Plaintiff is not required to respond to arguments in memorandum or briefs filed by defense counsel supporting the Motion for Summary Judgment. Plaintiff is only required to counter testimony, documents, and/or answers to interrogatories that, if left unrefuted, affirmatively disposes of material issues in the case or overwhelmingly establishes the true and controlling facts in the case. All we have here is the testimony of Ms. Mizzel and Ms. Ford who essentially said they don't know what happened, cannot recall almost everything relevant, and otherwise provide self-serving denials of giving the inmate Trustees permission or instruction to do what they did. This simply is not enough to even have deserved a hearing below. This case is in no way ripe for summary judgment in favor of the Police Jury.
