Lester et al v. Valero Refining-Meraux LLC

Filing 39

ORDER & REASONS: denying 21 Motion for Summary Judgment. Signed by Judge Carl Barbier on 2/19/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RUSSELL LESTER

CIVIL ACTION

VERSUS

NO: 14-80

VALERO REFINING-MERAUX, LLC

SECTION: J(2)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment

(Rec. Doc.

21) filed by Defendant, Valero Refining-Meraux, LLC ("Valero"), as
well as an Opposition (Rec. Doc. 29) by Plaintiffs, Russell Lester
("Lester") and Sharon Lester (collectively "Plaintiffs"), and
Valero's Reply (Rec. Doc. 34). Having considered the motion, the
parties’ submissions, the record, and the applicable law, the Court
finds, for the reasons expressed below, that the motion should be
DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
This matter arises from alleged injuries sustained by Lester
while employed as a truck driver by CW Transport, LLC. Lester
claims that on November 22, 2012 he was dispatched to pick up a
load of propane at Valero's facility in Meraux, Louisiana. Lester
spent approximately an hour in the loading area loading up his
truck, and once the truck was fully loaded, Lester turned around
and took several steps to disconnect the hose from the truck. While
Lester was walking, he alleges that he tripped over a valve
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connected to the end of a loading hose that was lying on the
ground. Lester claims that he sustained serious injuries to his
left wrist and right knee, both of which necessitated surgeries.
Plaintiffs filed this lawsuit against Valero in state court
under a theory of negligence, asserting, amongst other things, that
Valero was negligent in failing to provide a warning of a dangerous
condition, failing to provide a safe premises for its patrons and
business invitees, and negligently allowing an unsafe condition to
exist on its premises. (Rec. Doc. 1-1, p. 2). Lester seeks a number
of damages including damages for past and future medical expenses,
lost wages, and pain and suffering. Lester's wife, Sharon, also
seeks damages for loss of consortium, companionship, society, and
friendship, which she alleges to have suffered as a result of
Lester's physical injuries. Valero subsequently removed the matter
to this Court based on diversity jurisdiction.
Valero has filed the instant motion, requesting that the Court
grant summary judgment in its favor and dismiss Plaintiffs' claims
with prejudice.
PARTIES’ ARGUMENTS
Valero asserts that Plaintiffs' claims for negligence should
be dismissed because the hoses lying on the ground over which
Lester tripped constituted an "open and obvious" hazard. Under
Louisiana law, Valero notes that as a landowner, it may not be held
liable for any injury resulting from a hazard which was obvious and

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which Lester should have observed. Valero further submits that
Lester was fully aware of the danger posed by the hoses, as Lester
admits to noticing the hoses on several previous visits to the
facility, noticing the hoses when he first arrived at the facility
on the day of the incident, and even noticing the hoses as he was
in the process of stepping over them. As such, Valero asserts that
because Lester was fully aware of the obvious danger posed by the
hoses, Valero had no duty to guard against such danger.
In response, Plaintiffs first clarify Valero's argument,
noting that Lester tripped over a valve which was connected to the
hose as opposed to the hose itself. Because of this, Plaintiffs
dispute that the danger posed by the valve was "open and obvious"
as Valero contends, since the valve was much smaller and the same
color as the hose, and thus not easily seen. Plaintiffs also argue
that the issue of whether the danger posed by the valve was open
and obvious is a question that must be decided by the jury at
trial, as opposed to the Court on summary judgment.
In its Reply, Valero asserts that the distinction of whether
Lester tripped over a hose or a valve is immaterial, as the valve
was visibly connected to the hose, and thus obviously posed the
same danger as the hose. Additionally, Valero argues that summary
judgment is appropriate on the issue of whether the valve posed an
open

and

obvious

danger,

in

jurisprudence.

3

light

of

recent

Louisiana

LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no material issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”

Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P.
56(c); See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994).

When assessing whether a dispute as to any material

fact exists, the Court considers “all of the evidence in the record
but refrains from making credibility determinations or weighing the
evidence.”

Delta & Pine Land Co. v. Nationwide Agribusiness Ins.

Co., 530 F.3d 395, 398 (5th Cir. 2008).

All reasonable inferences

are drawn in favor of the nonmoving party, but a party cannot
defeat

summary

judgment

unsubstantiated assertions.

with

conclusory

allegations

or

Little, 37 F.3d at 1075. A court

ultimately must be satisfied that “a reasonable jury could not
return a verdict for the nonmoving party.”

Delta, 530 F.3d at 399.

If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party “must come
forward with evidence which would ‘entitle it to a directed verdict
if the evidence went uncontroverted at trial.’” Int’l Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991)
(citation omitted). The nonmoving party can then defeat the motion
by either countering with sufficient evidence of its own, or
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“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325.

The burden

then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
material issue exists. See id. at 324.

The nonmovant may not rest

upon the pleadings, but must identify specific facts that establish
a material issue for trial.

See, e.g., id. at 325; Little, 37 F.3d

at 1075.
DISCUSSION
In their complaint, Plaintiffs assert that the Court should
find Valero liable for negligence, because "as owner and custodian
of the premises, Valero knew or should have known of the dangerous
condition which caused the damages and injuries to Petitioners."
(Rec. Doc. 1-1, p. 4).

It is well-settled in Louisiana law that a

landowner owes a duty to all visitors and business invitees "to
discover

any

unreasonably

dangerous

conditions

and

to

either

correct the condition or warn of its existence." Socorro v. City of
New Orleans, 579 So.2d 931 (La. 1991) (citing Shelton v. Aetna
5

Casualty & Surety Co., 334 So.2d 406, 410 (La. 1976)). An owner of
a thing which causes damage or injury to another may be found
liable for that damage if the plaintiff is able to prove that: (1)
the property which caused the damage was in the custody of the
defendant; (2) the property had a condition that created an
unreasonable risk of harm to persons on the premises; (3) the
unreasonably

dangerous

condition

was

a

cause-in-fact

of

the

resulting injury; and (4) the defendant had actual or constructive
knowledge of the risk." Ardoin v. Lewisburg Water System, 07-180
(La. App. 3 Cir. 7/18/07); 963 So.2d 1049, 1051 (citing Bozeman v.
Scott Range Twelve Ltd. Partnership, 03-903, (La. App. 1 Cir.
4/2/04); 878 So.2d 615, 619); LA. CIV. CODE ANN. art. 2317.

Here,

Valero contends that the hose and valve over which Lester tripped
posed an open and obvious risk, and as such, were not unreasonably
dangerous.1

As

such,

Valero

asserts

that

it

should

be

found

relieved of liability, because it had no duty to warn Lester of any
potential risk posed by the hoses and valves or attempt to prevent
Lester's injury.
In determining whether the risk of harm posed by a defect is
"unreasonably dangerous," courts generally employ a risk-utility
balancing test in which they consider the following four factors:

1
Because Valero does not bear the burden of proof at trial, it is required
only to show that Plaintiffs are unable to prove an essential element of their
negligence claim. Thus, the remaining elements of custody, knowledge, and
causation are not at issue in this motion, and the Court will only address
Valero's argument that the hoses and valve did not pose an unreasonable risk.

6

"(1) the utility of the complained-of condition; (2) the likelihood
and magnitude of the harm, which includes the obviousness and
apparentness of the condition; (3) the cost of preventing the harm;
and (4) the nature of the plaintiff's activities in terms of its
social utility, or whether it is dangerous by nature." Dauzat v.
Curnest Guillot Logging, Inc., 08-0528 (La. 12/2/08); 995 So.2d
1184, 1186-87 (citing Hutchinson v. Knights of Columbus, Council
No. 5747, 03-1533 (La. 2/20/04); 866 So.2d 228, 235; Ardoin, 963
So.2d at 1051). Because the duty of a landowner is governed by a
reasonableness
universally

standard,

known

and

"where
easily

a

risk

of

avoidable,

harm
the

is
risk

obvious,
is

not

unreasonable. Hutchinson, 866 So.2d at 236. As such, when a risk is
obvious to all, a landowner has no duty to warn of or prevent any
injury which may arise from the defect and is not liable for
negligence. Henshaw v. Audubon Park Com'n, 605 So.2d 640, 641 (La.
App. 4 Cir. 1992) (citing Shelton, 334 So.2d at 410).
Here,

considering

the

first

factor

of

the

risk-utility

balancing test, the hoses appear to have a strong utility in that
they were "used to connect from the header to the tanker trucks
that were to be loaded in that area." (Rec. Doc. 21-1, p. 1). For
purposes of the third factor, the cost of preventing the harm
appears to be minimal. Valero could easily have avoided any injury
which may have been caused by the hoses simply by hanging them, as
opposed to leaving them lying on the ground. Lester has testified

7

that the majority of other refining facilities hang their loading
hoses on racks in the loading area, rather than leaving them on the
ground, so as to prevent against potential injury. (Rec. Doc. 29-1,
p. 63). With regards to the fourth factor, while the job of a
trucker is dangerous by nature, the act of walking in a refining
facility does not carry the same risk. See Dauzat, 995 So.2d at
1187. Additionally, it should be noted that in order to start and
stop the flow of product to his truck, Lester was required to
"traverse back and forth over the hoses on the ground" on several
occasions during the loading process. (Rec. Doc. 29, p. 5). Because
the only pathway Lester could have taken to complete the loading
process was through the area in which the hoses were located,
Lester was unable to avoid the danger posed by the hoses and their
valves.
Considering

the

second

factor,

the

Court

must

determine

whether the hose and attached valve posed a risk that was so
obvious and apparent as to render it not unreasonably dangerous. In
order for a defect to be considered open and obvious, "the hazard
should be one that is open and obvious to everyone who may
potentially encounter it." Bufkin v. Felipe's La., LLC, 14-0288
(La. 10/15/14); 2014 WL 5394087, at *4 (citing Broussard v. State
ex rel. Office of State Bldgs., 12-1238 (La. 4/5/13); 113 So.3d
175, 184; Hutchinson, 866 So.2d at 234). Here, the Court does not
agree with Valero that the valve over which Lester tripped was

8

clearly open and obvious. In support of its motion, Valero relies
heavily on Lester's admission that he viewed the hoses lying on the
ground on several occasions, including as he was stepping over
them. However, none of these admissions make any specific reference
to the valve over which Lester actually tripped. Instead, as noted
by Plaintiff, and as evidenced by photographs provided to the Court
(Rec. Doc. 29-4, p. 1-2), the valve was not readily noticeable.
Instead, the valve, which protruded from the hose at a ninety
degree angle, was "thin and gray not easily seen" and a mere few
inches in length. (Rec. Doc. 29, p. 5). As opposed to the hoses,
the Court finds that due to the valve's size and coloring, a
genuine question remains regarding whether the valve posed an open
and obvious danger.
In its Reply, Valero cites to the recent Louisiana Supreme
Court case of Bufkin v. Felipe's La., LLC, 14-0288 (La. 10/15/14);
2014 WL 5394087. In Bufkin, the plaintiff was injured when he was
struck by a bicyclist while attempting to cross the street next to
the defendant's large dumpster. Id. at *1. The plaintiff alleged
that the dumpster contributed to his injury by obstructing his view
and preventing him from crossing the street safely. Id. The Supreme
Court held that summary judgment in favor of the defendant was
appropriate, as the danger posed by the dumpster was obvious and
apparent.

Id. at *6.

However, unlike in Bufkin, the valve over

which Lester tripped was not a "pick-up truck-sized dumpster, a

9

large inanimate object visible to all," but instead was only a mere
two or three inches, and appears to blend into the coloring of the
hose. See id. The Court finds that the present circumstances are
more analogous to the case of Broussard v. State ex rel. Office of
State Bldgs., 12-1238 (La. 4/5/13); 113 So.3d 175, relied upon by
Plaintiffs.

In

Broussard,

the

plaintiff

was

injured

when

he

attempted to maneuver a dolly onto an elevator which stopped in a
position that was uneven with the floor. Id. at 179. The Supreme
Court found that the appellate court erred in granting summary
judgment in favor of the defendant owner of the elevator, because
despite the fact that the plaintiff admitted he was aware of the
elevator's offset, a reasonable jury could have determined that the
danger posed by the elevator was not open and obvious to all who
encountered it. Id. at 189-92. Here, even though Lester admits that
he was aware of the hoses located on the ground, he does not
specifically admit that he noticed the valve prior to his trip and
fall. Additionally, like in Broussard, due to the characteristics
of the valve, the Court finds that its risk may not have been
obvious to all who encountered it.
Because genuine issues remain regarding whether the valve over
which Lester tripped was open and obvious and thus not unreasonably
dangerous, at this stage in the proceedings, the Court finds that
summary judgment on Plaintiffs' claims is not warranted.
CONCLUSION

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Accordingly,
IT IS HEREBY ORDERED that the Motion for Summary Judgment
(Rec. Doc. 21) is DENIED.
New Orleans, Louisiana this 19th day of February, 2015.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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