Jolliff v. Internal Revenue Service, et al
Filing
31
ORDER & REASONS that Defendants East Skelly, LLC and Jones Lang LaSalle Americas, Inc.'s 25 Motion for Summary Judgment and the United States of America's 27 Motion to Dismiss, or, in the Alternative, 27 for Summary Judgment are GRANTED. Signed by Judge Eldon E. Fallon on 6/26/12. (dno, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIE B. JOLLIFF, JR.
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VERSUS
UNITED STATES OF AMERICA
CIVIL ACTION
NO. 11-1150
SECTION "L"(3)
ORDER & REASONS
Before the Court are two motions: (1) defendants East Skelly, LLC and Jones Lang
LaSalle Americas, Inc.'s (collectively "East Skelly") Motion for Summary Judgment (R. Doc.
25); and (2) the United States of America's Motion to Dismiss, or, in the Alternative, for
Summary Judgment (R. Doc. 27). For the following reasons, IT IS ORDERED that these
motions are both GRANTED.
I.
BACKGROUND
The present matter arises from alleged personal injuries sustained in a government office.
On or about May 15, 2012, Plaintiff, Willie B. Jolliff, Jr., alleges that while seated in the Internal
Revenue Service (“IRS”) office within 1555 Poydras St., New Orleans, Louisiana, he was struck
by a falling portable office wall. As a result of this incident, Plaintiff claims he "suffered bodily
injury, specifically injury to his head resulting in headaches and injury to his neck."
On May 16, 2011, Plaintiff filed suit against the IRS, who maintained the public office
where he sustained his injuries, defendant East Skelly LLC, the owner of the office building, and
defendant Jones Lang LaSalle Americas, Inc., the manager and leasing agent of the office
building. Plaintiff alleges his injuries were caused by the negligence of the Defendants. The
Defendants each filed answers, denying liability and raising a number of affirmative defenses.
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On January 12, 2012, the Unites States of America was substituted for the IRS.
II.
PRESENT MOTIONS
A.
East Skelly's Motion
East Skelly filed a Motion for Summary Judgment, arguing that summary judgment is
appropriate because: it did not have custody or control over the modular office furniture used by
the IRS in its office, Plaintiff is unable to identify what allegedly injured him, and Plaintiff failed
to submit any experts, witnesses, or exhibits by the Court's deadline. East Skelly alleges that it
cannot be held liable under Louisiana law for custodial liability, damage caused by ruin, or
general negligence.
B.
United States' Motion
The United States also filed a dispositive motion-a Motion to Dismiss, or, in the
alternative, a Motion for Summary Judgment-seeking dismissal of Plaintiff's claims. The United
States argues that Plaintiff has not provided any evidence to establish any federal employee
negligently caused his injuries, a jurisdictional requirement for the Federal Tort Claims Act
(“FTCA”). Additionally, the United States argues that the FTCA does not allow premises
liability claims to proceed against the United States. The United States faults Plaintiff for failing
to conduct any discovery and failing to submit expert, witness, and exhibit lists by the Court's
deadline.
C.
Plaintiff's Response in Opposition
Plaintiff filed a Response in opposition to the United States' Motion. Plaintiff first argues
there is subject matter jurisdiction in the case pursuant to the FTCA. Second, Plaintiff argues he
has sufficiently stated a claim upon which relief can be granted, because he alleges in the
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Complaint four specific negligent acts on the part of the IRS. Third, Plaintiff argues that
summary judgment is inappropriate because he will present his own testimony, as well as the
evidence submitted by East Skelly, in support of his claims.
III.
LAW & ANALYSIS
A.
East Skelly's Motion
1.
Standard of Review
A district court can grant a motion for summary judgment only when the "the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56 (a). When considering a motion for summary
judgment, the district court "will review the facts drawing all inferences most favorable to the
party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.
1986). The court must find "[a] factual dispute . . . [to be] 'genuine' if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be]
'material' if it might affect the outcome of the suit under the governing substantive law." Beck v.
Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989)(citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of
material fact, the burden shifts to the non-moving party to produce evidence or designate specific
facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle
Lake, 47 F.3d 1459, 1462 (5th Cir. 1995). The mere argued existence of a factual dispute will
not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the
evidence is merely colorable, or is not significantly probative," summary judgment is
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appropriate. Id. at 249-50 (citations omitted).
2.
Law & Analysis
Plaintiff brings claims against East Skelly for negligence-jointly, severally and in solido
with the United States-in failing to maintain a safe place of business, failing to provide safe
office equipment to its tenants, failing to warn of a potentially dangerous condition, and any
other acts of negligence. See (R. Doc. 1). East Skelly was joined to the action against the
United States as an indispensable party and joint tortfeasor. See id. Because the FTCA would
not apply to East Skelly as a non-governmental party, the Court looks to Louisiana law on
negligence to determine whether summary judgment on the claims against East Skelly is
appropriate.
As noted by East Skelly in its brief, there are three possible legal claims under Louisiana
law which are invoked by the Complaint: (1) custodial liability pursuant to Louisiana Civil Code
articles 2317 and 2317.1; (2) damage caused by ruin of a building pursuant to Louisiana Civil
Code article 2322; and (3) general negligence pursuant to Louisiana Civil Code article 2315.
Custodial liability under Louisiana law is set-out in Louisiana Civil Code articles 2317 and
2317.1, which provide as follows:
We are responsible, not only for the damage occasioned by out 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.
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.
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Liability for damage caused by ruin of a building is set out in Louisiana Civil Code article 2322,
which provides,
The owner of a building is answerable for the damage occasioned by its ruin, when this is
caused by neglect to repair it, or when it is the result of a vice or defect in its original
construction. However, he is answerable for damages only upon a showing that he knew,
or in the exercise of reasonable care, should have known of the 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.
Finally, Louisiana Civil Code article 2315 provides that "[e]very act whatever of man that causes
damage to another obliges him by whose fault it happened to repair it." This article codifies
claims for general negligence which the jurisprudence considers under a duty-risk analysis. See
Rando v. Anco Insulations, Inc., 08-1163, 08-169, pp. 26-27 (La. 5/22/09); 16 So. 3d 1065,
1085-86. The duty-risk analysis requires the plaintiff to demonstrate five separate elements: (1)
that the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the
defendant failed to conform his or her conduct to the appropriate standard; (3) the defendant's
substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard
conduct was a legal cause of the plaintiff's injuries; and (5) actual damages. See id.
Here, Plaintiff alleges he was injured at the IRS office when a portable office wall fell
and struck him. See (R. Doc. 1 (Complaint)). During Plaintiff's deposition it was revealed that
while he was waiting in the IRS office waiting room, an unidentified object struck him on the
top, right-side of his head, possibly a "piece of the building or a piece of the wall or something."
See (R. Doc. 25-5 (Pl.'s Dep.)). East Skelly puts forth evidence demonstrating that, as the lessor
of the office rented by the IRS, the furniture, fixtures, and equipment in the office, including the
walls and doors, were not part of the building, but rather were the responsibility of the IRS itself.
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See (R. Doc. 25-4 (Ex. A)). Further, East Skelly notes that it did not purchase, supply, maintain,
repair, monitor or inspect the modular office furniture at the IRS office. See id.
Plaintiff has not submitted a timely response in opposition to East Skelly's Motion, and
he does not dispute that East Skelly was not responsible for the modular office furniture alleged
to have caused his injuries. See (R. Doc. 30). Plaintiff does not put forth any evidence
demonstrating that East Skelly was in custody of or responsible for the modular office equipment
at issue or that it had a duty to Plaintiff to maintain this equipment, as would be required to
survive summary judgment on the tort claims under Louisiana law discussed above.
Accordingly, the Court finds that summary judgment on the claims against East Skelly is
appropriate.
B.
United States' Motion
1.
Standard of Review
The United States brings its Motion pursuant to Federal Rule of Civil Procedure 12(b)(1)
for lack of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a claim. The standard
of review for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is the same
as that for a Rule 12(b)(6) motion. United States v. City of New Orleans, 2003 WL 22208578
(E.D. La. Sept. 19, 2003); Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). In general,
when considering a motion to dismiss, the court must take the well-pleaded factual allegations of
the complaint as true. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
The plaintiff must plead sufficient facts to state a claim for relief that is “plausible on its face,”
and the plaintiff’s right to relief must be raised “above the speculative level” by the factual
allegations. Id. Conclusory allegations or legal conclusions serving as factual conclusions will
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not prevent dismissal. United States v. Ga. Gulf Corp., 386 F.3d 648, 654 (5th Cir. 2004). The
Supreme Court has ruled that a district court cannot dismiss a complaint under Rule 12(b)(6)
unless it appears beyond a reasonable doubt that the plaintiff cannot prove a plausible set of facts
in support of his claim which would entitle him to relief. Bell Atl. Corp. v. Twombly, 127 S.Ct.
1955 (2007). Conclusory allegations or legal conclusions, however, will not suffice to defeat a
motion to dismiss. See Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.
1993). A court’s ultimate conclusion that a case should be dismissed may rest “on any one of
three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Barrera-Montenegro v. United States, 74 F.3d 657, 659
(5th Cir. 1996).
Alternatively, the United States seeks summary judgment in its favor pursuant to Rule 56.
The standard of review for a motion for summary judgment is discussed above, see supra pp. 34, and is adopted and incorporated herein.
2.
Law & Analysis
"It is elementary that 'the United States, as sovereign, is immune from suit save as it
consents to be sued..., and the terms of its consent to be sued in any court define that court's
jurisdiction to entertain the suit.'" United States v. Mitchell, 445 U.S. 535, 538 (1980)(quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941)). "Courts must strictly construe all waivers
of the federal government's sovereign immunity, and must resolve all ambiguities in favor of the
sovereign." Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998)(citing United States v.
Nordic Vill., Inc., 503 U.S. 30, 34 (1992)). The Federal Tort Claims Act ("FTCA") constitutes a
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"limited waiver of sovereign immunity, making the Federal Government liable to the same
extent as a private party for certain torts of federal employees acting within the scope of their
employment." United Sates v. Orleans, 425 U.S. 807, 813 (1976).
The FTCA provides in relevant part,
[T]he district courts...shall have exclusive jurisdiction of civil actions on claims against
the United States, for money damages...for...personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1).
Plaintiff alleges that the United States is liable in negligence for failing to maintain a safe
environment for office visitors, failing to properly maintain the portable office wall, failing to
properly secure the portable office wall, failing to warn of a potentially dangerous condition, and
any other negligent behavior. See (R. Doc. 1).
The United States notes that even though this case has been pending for over a year,
Plaintiff has not taken any discovery in this case, and Plaintiff has not provided any expert
reports or witness and exhibit lists. The United States argues that the deadlines for doing so
have since passed, precluding Plaintiff, pursuant to the Court's Scheduling Order, from offering
any experts, witnesses, or exhibits in support of his claims. The United States is correct that
Plaintiff has not timely submitted any expert, witness, or exhibit designations or reports, in
violation of the Court's Scheduling Order. See (R. Doc. 18). Plaintiff does not dispute his
failure to do so, but argues: (1) he has sufficiently stated claims in his Complaint against the
United States for four negligent acts; (2) he will testify at the trial and will use the evidence
submitted by East Skelly in support of its Motion discussed above; and (3) there exists a factual
issue regarding the negligence of the United States.
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The United States is also correct that Plaintiff exceeded the Court's deadline by over a
month to submit his witness and exhibit list. See (R. Doc. 29), compare (R. Doc. 18). The
Court's Scheduling Order provides that "[t]he Court will not permit any witness, expert or fact, to
testify or any exhibits to be used unless there has been compliance with this Order as it pertains
to the witness and/or exhibits, without an order to do so issued on motion for good cause
shown." (R. Doc. 18). Plaintiff did not seek leave of Court to file his witness and exhibit lists
past the deadline; nor has he argued that his untimeliness is attributed to good cause. Thus,
Plaintiff is barred from submitting any witnesses or exhibits in support of his claims. This leaves
Plaintiff with only the allegations in the Complaint to prove his claims, which for the following
reasons are insufficient to survive the United States' Motion.
The United States argues that claims for negligence in general premises liability under
Louisiana law are not routinely permitted under the FTCA. The Court finds that whether general
premises liability claims are permitted under the FTCA in the Fifth Circuit is an undecided issue.
The Fifth Circuit has apparently not resolved the split among the district courts as to
whether or not a claim for premises liability that fails to name a particular individual
states a claim under the FTCA. Several district courts have held that the FTCA does not
waive immunity for claims of general premises liability. Other district courts have
permitted the FTCA claims for general premises liability under negligence theories.
Wiggins v. United States, 2009 WL 2176043, at *2 (E.D. La. July 22, 2009)(internal
citations omitted).
Thus, the Court will consider Plaintiff's claims against the United States under Louisiana law as
the law of the place where the incident occurred and which discussed above, see 28 U.S.C. §
1346(b)(1); supra pp. 4-5, and the Court incorporates and adopts these legal findings.
In considering premises liability and negligence against the United States, this Court has
noted,
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‘The mere fact that an accident occurs, absent a res ipsa loquitur situation, does not give
rise to even a presumption of negligence. Fault is determined by asking the question:
How would a reasonably prudent individual have acted or what precautions would he
have taken under the same or similar circumstances? Negligent conduct is determined in
the light of the facts and environmental circumstances of each case.’ Wiggins v. United
States, 2009 WL 2176043, at *3 (E.D. La. July 22, 2009)(quoting Barrow v. Brownell,
938 So. 2d 118, 122 (La. App. 1 Cir. 2006)).
Plaintiff has not plead res ipsa loquitur; thus, the Court will consider his claims under premises
liability and negligence.
A critical element for establishing a premises liability and negligence claim is a showing
that the defendant had actual or constructive knowledge of the condition. See Wiggins, 2009 WL
2176043 at *5-6; La. Civ. Code arts. 2317, 2317.1, 2322. Plaintiff does not claim or demonstrate
that any IRS employees knew or should have known of the condition posed by the modular
office furniture and equipment. “To ignore the constructive knowledge element of [plaintiff’s]
negligence claim would be to impose strict liability on the defendant.” Wiggins, 2009 WL
2176043, at *6 (citing Oster v. Dep’t of Transp. & Dev., 582 So. 2d 1285, 1288 (La. 1991)).
Thus, Plaintiff has failed to provide evidence in support of his case so as to establish a genuine
issue of material fact for trial. “Although the defendant has the burden to establish that summary
judgment is appropriate, its entitlement to relief can be accomplished by showing a complete
absence of record evidence to support an essential, indeed a mandatory, element of the plaintiff’s
claim.” Id. at *6 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
IV.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that East Skelly's Motion for Summary
Judgment (R. Doc. 25) and the United States' Motion to Dismiss, or, in the Alternative, for
Summary Judgment (R. Doc. 27) are GRANTED.
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New Orleans, Louisiana this 26th day of June 2012.
________________________________
U.S. District Judge
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