ROSEMARY LEDET, Judge.
This is a personal injury suit. The sole issue presented is whether the trial court erred in granting the motion for summary judgment filed by the defendant, Apollo Marine Specialties, Inc. Finding genuine issues of material fact exist precluding the grant of summary judgment, we reverse.
On March 27, 2003, William Teter allegedly injured his back while unloading a heavy spool (or coil) of rope being delivered by Apollo Marine to the job site where he was working. Mr. Teter was working as an ironworker foreman for American Bridge Company on the Florida Avenue Bridge project. Apollo Marine was one of American Bridge's material suppliers.
On March 26, 2004, Mr. Teter filed this suit against, among others, Apollo Marine. In his petition, he alleged that on the day of the accident an Apollo Marine delivery truck driver arrived at the job site to deliver a giant spool of heavy marine rope; Apollo Marine had only one employee delivering the rope. Since the spool of rope was too heavy for Apollo Marine's driver to remove from the truck by himself, Mr. Teter was asked to assist the driver in unloading it. While unloading the spool of rope, Apollo Marine's driver negligently pushed the heavy spool of rope too hard causing it to fall off the truck. In attempting to turn away to avoid being hit by the heavy spool of rope, Mr. Teter slipped and fell in oil.
Mr. Teter averred that Apollo Marine, through its driver, was negligent in the following four non-exclusive respects: (i) failure to have adequate employees to unload material, (ii) failure of its employees to properly unload the heavy spool of rope, (iii) failure to see that Mr. Teter was in the path of the spool of rope, and (iv) failure to warn Mr. Teter that the driver was shoving the spool of rope. Apollo Marine answered denying liability and asserting that, if in fact the accident occurred, the accident was the result of Mr. Teter's own
On March 15, 2005, Mr. Teter died. On April 30, 2006, Mr. Teter's surviving spouse, Yvette Walters Teter, both individually on behalf of her deceased husband and on behalf of their two minor children, filed a supplemental and amending petition substituting herself as proper party plaintiff. Alleging that Apollo Marine's negligent actions caused Mr. Teter's death, Mrs. Teter asserted a wrongful death claim and a survival action. See La. C.C. arts. 2315.1 and 2315.2. Apollo Marine answered admitting Mrs. Teter's status as surviving spouse and as representative of Mr. Teter's minor children, but denying liability. Apollo Marine reaffirmed and reiterated its averments and affirmative defenses set forth in its prior answer.
On April 25, 2012, Apollo Marine filed a motion for summary judgment. Apollo Marine supported its motion with the deposition testimony of the following five witnesses: Mr. Teter, Richard Foster, Ron Williams, Dimitrios Fronistas, and Roosevelt Batiste. To provide a factual background for deciding this case, we briefly summarize the deposition testimony.
On the day of the accident, Mr. Teter was working for American Bridge as an ironworker foreman. At about 10:30 a.m. that morning, he received a call from a supervisor (either Macy Terrell, his direct supervisor, or Dick Foster, another supervisor) ordering him to help an Apollo Marine truck driver unload a spool of rope, which was to go on a certain boat. According to Mr. Teter, his supervisor gave him no unloading instructions "because the truck driver usually takes care of that." He stated that "this was not a routine thing" that he did as part of his job.
Although Mr. Teter did not know the Apollo Marine driver's name, he described the driver as an African American (black) male in his mid-thirties. Mr. Teter testified that the driver told him that he could not move the spool by himself and asked him for assistance in moving it. He explained that the driver was on the flatbed of the truck trying to push the spool, which was located near the cab of the truck. The driver was using both his arms and legs and was grunting. At the driver's request, Mr. Teter climbed onto the flatbed of the truck to help the driver. The driver managed on his own to push the spool two or three feet towards the rear of the truck. However, the flatbed of the truck had dents or bolts in it, and the spool became hung up. In order to determine what the spool was hung up on, Mr. Teter
Mr. Teter acknowledged that the spool of rope was five to six feet in diameter and weighed at least four or five hundred pounds. Nonetheless, he testified that it was possible for him to lift the spool because it was not "dead weight;" he explained:
According to Mr. Teter, the next thing that occurred was the spool came down on top of him; he explained:
Mr. Teter testified that the blow twisted him around and that he fell back and landed on his hands.
After lunch Mr. Teter reported the accident to one of his supervisors but continued to work. Over night his pain increased. Early the next morning, he reported the accident to American Bridge's office manager, Richard Foster, and a first report of injury form was completed. On that same day, he sought medical treatment for his back injury. As noted elsewhere, Mr. Teter died after this suit was filed.
Mr. Foster testified that Mr. Teter first reported the accident to him between 6:00 and 6:30 a.m. on the day after it occurred. On that morning, Mr. Foster completed the first report of injury form with Mr. Teter. In the written report, Mr. Teter described the accident as occurring when he was "unloading a spool of 2" manila rope from a truck. Injured's feet slipped on muddy ground surface and as the injured took the weight of the spool of manila rope he felt pain in his lower back." In his handwritten statement that was attached to the report, Mr. Teter further described the accident as follows:
On the report, it is indicated that there were no witnesses to the accident. The report does not mention Apollo Marine or its driver.
Ron Williams, American Bridge's superintendent, testified that Mr. Teter reported the accident to him either on the day of the accident or the next day. Mr. Teter told him that "he was trying to move this spool of line [rope] on the truck and that he pulled something in his back."
Mr. Williams described American Bridge's standard procedure for receiving
Mr. Williams testified that the materials that were delivered to American Bridge's job site were heavy and could only be unloaded by using either a crane or other equipment. He identified the equipment that American Bridge had available at its job site for unloading as including a nineteen-ton boom truck, a five-thousand pound capacity loader with forks on it, and three crawler cranes. He testified that crane operators were always available; indeed, there were six operators on American Bridge's job site at the time of the incident. He explained that because the contractors delivering materials did not have the necessary equipment, the contractors were not responsible for unloading materials. Mr. Williams testified that Mr. Teter had equipment available to him to unload the spool of rope and that he did not recall Mr. Teter explaining why he did not use such equipment to unload the rope.
Mr. Fronistas, one of Apollo Marine's owners, testified that when Apollo Marine hires drivers it provides them with the following safety instructions: never unload the truck; only the buyer should unload the truck; and if the buyer is unable to unload the truck, return with the unloaded material to Apollo Marine. Mr. Fronistas acknowledged that these safety instructions verbally are given to drivers when they are hired, that Apollo Marine has no written safety manual, and that it does not hold regular safety meetings with its drivers.
Mr. Fronistas identified the shipping (or dray) receipt dated March 26, 2003, for American Bridge's order of one "2″ × 600′ SPOOL OF POLY. PRO ROPE." Although the receipt refers to a spool of rope, he indicated that this was a mistake. He explained that this type of rope was not shipped on a spool (or reel); rather, it was wound up in a coil. The coil of rope that Apollo Marine delivered to American Bridge on March 27, 2003, weighed 414 pounds.
Mr. Fronistas indicated that the shipping receipt was signed by Mr. Teter, acknowledging American Bridge's receipt of the materials. Although the shipping receipt did not identify the Apollo Marine delivery driver, Mr. Fronistas testified that he was certain the driver who made the delivery was Roosevelt Batiste. He explained that he was certain because during the pertinent time Mr. Baptiste was the driver who made 99% of Apollo Marine's deliveries. He described Mr. Batiste as an African American man of medium built, not overweight, and about 5'9" or 5'10" tall. He further testified that subsequent to this incident Mr. Batiste was terminated for unrelated reasons.
Mr. Batiste testified that he formerly worked for Apollo Marine as a delivery driver. In 2003, he regularly (about three times a week) made deliveries to the American Bridge work site. The primary product that he delivered to that work site was heavy cable wire, which was wound on a spool for shipping and weighed between 1400 to 1500 pounds. Mr. Batiste testified that it was physically impossible to manually load or unload a spool of wire because it was too heavy.
Mr. Batiste confirmed Mr. Fronistas testimony that the rope delivered to American
Mr. Batiste testified that American Bridge's employees were solely responsible for unloading materials from Apollo Marine's delivery trucks. Apollo Marine did not provide any equipment to unload materials at American Bridge or any other site. According to Mr. Batiste, Apollo Marine's procedure was that if equipment was unavailable to unload the truck, he was to bring the materials back to Apollo Marine. He stated that this was the procedure he always followed. In response to the hypothetical question of what he would do if he arrived at American Bridge and no one was available to unload his truck, Mr. Batiste answered that he would "[b]ring it all the way back" to Apollo Marine's shop and go back another time.
Mr. Batiste did not remember making the delivery to American Bridge on March 27, 2003. When shown the shipping receipt for the delivery, Mr. Batiste testified that "somebody else came there with that. That was not me." He stated that they must have identified the wrong driver. Mr. Batiste pointed out that if a pallet had fallen off his truck he would remember it, and an accident report would have been prepared.
Mr. Batiste denied ever meeting Mr. Teter. He explained that every time he made a delivery at American Bridge, he dealt with the same person — a black male with a Jamaican accent — who always unloaded his truck. When confronted with Mr. Teter's allegations regarding what occurred on the date of the accident, Mr. Batiste replied that it "[n]ever happened" and that it was not possible. He testified that he never saw anyone at any time try to catch a spool of cable wire or a pallet of rope that was being taken off of the back of an Apollo Marine delivery truck. He denied ever letting anyone onto the flatbed of his truck. He further denied ever pushing a spool of wire or a pallet of rope off the back of his truck while making a delivery at American Bridge. He explained that he would never do so because he did not want to hurt himself. He still further denied that he had the physical strength to push, pull, or slide either a spool of cable wire or a pallet of rope. Whether it was a coil of yellow and black rope or a spool of heavy cable wire, he explained that the material had to be unloaded by using a crane or heavy equipment to lift it off the truck; the material could not be rolled off the truck. He testified that a pallet was never unloaded by hand at American Bridge's work site; American Bridge always used one of its forklifts or other equipment to unload them. Because he could not remember the incident with Mr. Teter, Mr. Batiste speculated that either it never happened or another Apollo Marine driver made the delivery.
In its motion, Apollo Marine, citing the deposition testimony, enumerated the following undisputed material facts:
Apollo Marine contended that it was entitled to summary judgment on two grounds. First, it owned no duty to protect Mr. Teter from his alleged injuries. Second, neither it nor its employee created, caused, or contributed to Mr. Teter's alleged fall and injury, if any, on March 27, 2003, or his subsequent death.
Opposing the summary judgment, Mrs. Teter introduced, among other things, Mr. Teter's deposition, her own affidavit, and an affidavit from the coroner, Dr. Karen F. Ross, regarding the cause of Mr. Teter's death.
Following a hearing, the trial court found there were no genuine issues of material fact and thus granted Apollo Marine's motion for summary judgment. The trial court did not provide written reasons for judgment. This appeal followed.
The standard of review of a trial court's ruling granting a motion for summary judgment, pursuant to La. C.C.P. arts. 966 and 967 and the jurisprudence, can be summarized as follows:
Johnson v. Loyola University of New Orleans, 11-1785, pp. 7-8 (La.App. 4 Cir. 8/8/12), 98 So.3d 918, 923-24; see also McGowan v. Housing Authority of New Orleans, 12-1418, p. 12 (La.App. 4 Cir. 3/27/13), 113 So.3d 1143, 1148, 2013 WL 1247814. Despite the legislative mandate favoring summary judgment, factual inferences reasonably drawn from the evidence
As noted in Johnson, whether a particular disputed fact is material for purposes of summary judgment must be determined in light of the substantive law applicable to the case. See Warren v. Kenny, 10-1580, p. 6 (La.App. 4 Cir. 4/27/11), 64 So.3d 841, 846 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751) (noting that "[a] `material' fact is `one that would matter on the trial on the merits,'" and that "[t]he applicable substantive law determines materiality.").
It is undisputed that all of Mrs. Teter's claims against Apollo Marine are negligence claims. To prevail on a negligence claim, a plaintiff is required to prove the following five elements:
Fowler v. Roberts, 556 So.2d 1, 4 (La.1989). The cause-in-fact and breach elements present questions of facts; the duty and scope of liability or scope of protection elements present questions of law. See Gammill v. Invacare Corp., 08-0833, p. 3 (La.App. 4 Cir. 12/17/08), 2 So.3d 557, 559 (citing Meany v. Meany, 94-0251 (La.7/5/94), 639 So.2d 229) (noting that "[t]he question of whether a duty is owed, as well as the scope of that duty, is a question of law. Breach of duty and causation are to be determined by the trier of fact.")
In this case, Apollo Marine contends, and the trial court apparently agreed, that no duty exists as a matter of law. In support of this position, Apollo Marine cites the deposition testimony of Mr. Williams, Mr. Fronistas, and Mr. Batiste that American Bridge, through its employees, was responsible for unloading the rope and that American Bridge provided the equipment to do so. Apollo Marine thus contends that it owned no duty to provide for Mr. Teter's safety in unloading the rope. Mrs. Teter counters that when Mr. Baptiste, on Apollo Marine's behalf, decided to violate Apollo Marine's safety rule by manually removing the rope, he had a duty to remove it in a safe manner.
Although duty is a question of law, summary judgment on the issue of duty is proper "only where no duty exists as a matter of law and no factual or credibility disputes exist." Parish v. L.M. Daigle Oil Co., 98-1716 (La.App. 3 Cir. 6/23/99), 742 So.2d 18, 25. Such is not the case here. The record reflects that the trial court was presented with two different versions of the underlying facts pertinent to the duty issue. On the one hand, Mr. Teter testified that Apollo Marine's driver (apparently Mr. Batiste) was not only responsible for unloading the truck, but also took an active role in the process of unloading the truck. Mr. Teter testified that Apollo Marine's driver asked him to help unload the truck. Mr. Teter further testified that the driver negligently pushed the spool too
For purposes of deciding a summary judgment motion, a court cannot make credibility determinations. Monterrey Center, LLC v. Education Partners, Inc., 08-0734, p. 10 (La.App. 1 Cir. 12/23/08), 5 So.3d 225, 232. In deciding a motion for summary judgment, the trial court must assume that the testimony of all the witnesses is credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236. Assuming that Mr. Teter's testimony is credible, we find that Apollo Marine, through its employee's actions, assumed a duty to do so safely. See Crane v. Exxon Corp., 613 So.2d 214, 221 (La.App. 1st Cir.1992), writs denied in part, granted in part on other grounds, and remanded, 620 So.2d 858 (La.1993) (holding that "[i]f a person undertakes a task which he had no duty to perform, he must perform the task in a reasonable and prudent manner"). "A duty of protection which has been voluntarily assumed must be performed with due care." Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1369 (La.1984). Assuming Mr. Teter's testimony to be true for purposes of this motion for summary judgment, we find that Apollo Marine assumed a duty to exercise due care in unloading the rope. Whether that duty was breached is a question of fact not before us on appeal.
Apollo Marine alternatively argues that its conduct cannot be determined to be a cause-in-fact of Mr. Teter's alleged injuries and subsequent death because it was physically impossible for the accident to happen as Mr. Teter alleged. Apollo Marine, however, cites no support for this argument. Contrary to Apollo Marine's contention, we find the trial court was presented with two contradicting versions of whether the accident was physically possible. As discussed earlier, Mr. Teter testified that the spool of rope was not "dead weight" and that it was possible for him to lift the spool of rope. He further testified that Apollo Marine's driver was able to push the spool and move it himself and that its driver pushed it too hard causing it to roll off the truck. Mr. Batiste, on the other hand, testified that it was impossible for either Mr. Batiste or Mr. Teter alone, or both of them together, to manually move or lift the spool (coil) of rope that weighed over 400 pounds. As noted earlier, a trial court in deciding a motion for summary judgment cannot make credibility calls and must assume the testimony of all of the witnesses is credible. Monterrey, 08-0734 at p. 10, 5 So.3d at 232. The trier of fact must make the credibility determination between the two versions of whether the accident was physically possible. Stated otherwise, there is a genuine issue of material fact regarding whether the accident was possible.
Summarizing, given the existence of multiple genuine issues of material fact, the trial court legally erred in granting Apollo Marine's motion for summary judgment.
For the foregoing reasons, the judgment of the trial court is reversed.
As to American Bridge, Apollo Marine asserted it was negligent in the following three non-exclusive respects: (i) failing to follow established procedures in unloading the spool of rope from the truck; (ii) failing to provide Mr. Teter with the appropriate equipment to unload the spool of rope from the truck; and (iii) failing to provide Mr. Teter with assistance in unloading the spool of rope from the truck.
