Donahue et al v. Republic National Distributing Company, LLC et al

Filing 382

ORDER AND REASONS: For the reasons stated herein, Makar's Motion to Strike 352 is DENIED. Makar's Motion for Summary Judgment 279 is GRANTED, and it is hereby DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo on 01/27/2020. (am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JOSHUA DONAHUE ET AL.

CIVIL ACTION

VERSUS

NO: 16-13948

REPUBLIC NATIONAL DISTRIBUTING
COMPANY, LLC ET AL.

SECTION: “H”

ORDER AND REASONS
Before the Court are Defendant Makar Installations, Inc.’s (“Makar”)
Motion for Summary Judgment (Doc. 279) and Motion to Strike (Doc. 352). The
Court heard Oral Argument on Makar’s Motion for Summary Judgment on
January 16, 2020. On January 17, 2020, the Court issued an Order granting
Makar’s Motion for Summary Judgment with reasons to follow.
For the following reasons, Defendant Makar’s Motion for Summary
Judgment is GRANTED, and the Motion to Strike is DENIED.
BACKGROUND
This action arises out of injuries suffered by Plaintiff Joshua Donahue
(“Donahue”) while working in Defendant Republic National Distributing
Company, LLC’s (“Republic”) warehouse. In 2015, Republic contracted with
W&H Systems, Inc. (“W&H”) for the construction of a new conveyer system at
its liquor distribution warehouse. As part of this project, W&H contracted with
Steele Solutions, Inc. (“Steele”) to design and install a new mezzanine in the
warehouse. Steele, in turn, subcontracted with Makar for the installation of
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the Steele-designed mezzanine. W&H was responsible for installing the
conveyer system that would run through the new mezzanine. W&H
subcontracted with Defendant Darana Hybrid, Inc. (“Darana”) to perform
electrical work on the conveyer system. Darana had a contract with Defendant
American ManPower Services, Inc. (“AMPS”) whereby AMPS provided
laborers to Darana to complete the electrical installation. Donahue was
employed by AMPS for this project.
Makar began construction of the Steele-designed mezzanine on May 4,
2015 and completed the installation on May 15, 2015. The design called for the
new mezzanine to be constructed approximately three feet higher than an
older, pre-existing mezzanine and a few feet apart from it. The guardrails of
the older mezzanine extended several inches higher than the floor of the new
mezzanine. Above the mezzanines, however, was an unguarded and fixed
overhead ceiling fan. The distance between the floor of the new mezzanine and
the ceiling fan was less than seven feet. The exact location of the ceiling fan,
in terms of whether and to what extent it hung over the new mezzanine, is in
dispute.
Toward the end of Makar’s installation job, its project supervisor,
Antonio Torres (“Torres”), was struck in the head by the blades of the fan while
he was standing on the new mezzanine. Torres testified that he was on his
knees on the floor of the new mezzanine, picking up supplies and material,
when he stood straight up. He was struck by the edge of the fan blades,
knocking back his head and knocking off his hard hat. He was then struck
again, directly in the head right along his hairline on his forehead. He was
standing flat on the mezzanine’s floor, not near the mezzanine’s edges, when
it happened. He did not realize that he was under a fan when he stood up and
was struck. He was standing not under the fan’s motor, but along the sides of
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its blades. He recalls that the entirety of the fan was directly above the new
mezzanine—not necessarily in the middle of the mezzanine, but not along its
edges either. He also recalls that there was no fan over the old mezzanine.
Torres testified that, at the time of his injury, the new mezzanine’s perimeter
had a yellow railing around it. There were no gaps in the railing for the soonto-be-installed conveyer system to run through.
The fan was turned on every day that Makar was on the job site. Torres,
who is approximately 5’9” and who was wearing 1” thick steel-toed boots when
he was struck, had repeatedly asked Republic employees and representatives
to turn the fan off, but it was never turned off. Neither Torres, nor any other
Makar employee, knew where the fan switch was located. In fact, the first time
that the fan was turned off was the day after Torres’ injury, which was also the
last day that Makar was on the job site. Torres testified that on that day, he
told Republic representatives that “the damage had already been done,” but
that the fan should still be removed because it nevertheless posed a hazard.
On the day of his injury, Torres called Makar’s owner, Gilbert Makaryk,
and notified him of the incident. Makaryk spoke with W&H’s project manager,
David Sweitzer, about Torres’ injury the same day. 1 Sweitzer then spoke with
Steele about the injury within hours of it happening. He also spoke with
Torres.
After Makar completed construction of the Mezzanine and departed
Republic’s warehouse, Donahue and other AMPS laborers began to work on
the electrical installation for the conveyor system. Gaps had been made in the

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Doc. 330-2 at 73–76. Defendant Makar asserts in its brief that Makaryk also spoke directly
with Steele Solutions about the fan and Torres’ injury. Doc. 346 at 8. Makar cites to pages
35 and 36 of Makaryk’s deposition testimony, but it failed to provide these pages to the
Court. The Court was unable to locate the referenced deposition transcript pages anywhere
else in the record.

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yellow railing that encircled the new mezzanine’s perimeter to allow access for
the conveyer system. At the time of Donahue’s injury, all but one of the gaps
in the railing had been filled by the conveyor system. The remaining gap was
located along the edge of the new mezzanine that was adjacent to the old
mezzanine.
The new mezzanine had stairs at one end that led directly to the ground
floor, but Donahue and other workers customarily descended to the ground
floor by traversing from the new mezzanine to the old mezzanine. The old
mezzanine also had stairs to the ground floor, and Donahue testified that it
was more convenient to use the stairs of the old mezzanine because they were
closer. The location of the single remaining gap in the new mezzanine’s railing
was the access point for traversing between the two mezzanines. Donahue
testified that the two mezzanines were only six inches apart, but large enough
for someone to fall between them. 2 He would place one foot on the floor of the
new mezzanine, place his other foot on the top of the old mezzanine’s rail, and
then hop down about three to four feet to the ground of the old mezzanine.
From there, he would take the stairs to the ground floor.
On July 29, 2015, Donahue had been on his knees on the floor of the new
mezzanine installing a wire. He finished, stood up, and went toward the gap
in the railing so he could descend to the ground floor by way of the old
mezzanine. Donahue had one foot on the floor of the new mezzanine and began
to move forward to place his other foot on top of the handrail of the older
mezzanine when he was struck in the head by one of the fan blades. Donahue
had worked at the site for approximately two months before his injury, and he

2

Torres testified that the gap was three feet wide and that only a tall person would be able
to make that jump.

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testified that the fan was off the entire time he was there. This time, however,
the overhead fan was turned on.
Donahue suffered numerous injuries and brought suit against Republic,
W&H, Daranda, AMPS, Makar, and Steele, among others, for negligence. The
Parties have since settled many claims. Remaining are Donahue’s claims for
negligence against Makar, Steele’s crossclaim against Makar for contractual
indemnity, and Steele’s third-party demand against Cincinnati Insurance
Company for reimbursement of litigation expenses.
LEGAL STANDARD
“The court shall grant summary judgment if 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.” 3 “As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” 4 Nevertheless, a dispute
about a material fact is “genuine” such that summary judgment is
inappropriate “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 5
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 6 “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

3
4
5
6

FED. R. CIV. P. 56.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 248.
Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).

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showing the existence of a genuine issue for trial.” 7 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 8
“In response to a properly supported motion for summary judgment, the
nonmovant must identify specific evidence in the record and articulate the
manner in which that evidence supports that party’s claim, and such evidence
must be sufficient to sustain a finding in favor of the nonmovant on all issues
as to which the nonmovant would bear the burden of proof at trial.” 9 The Court
does “not . . . in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts.” 10 Additionally, “[t]he mere argued
existence of a factual dispute will not defeat an otherwise properly supported
motion.” 11
LAW AND ANALYSIS
I.

Makar’s Motion to Strike (Doc. 352)
At the outset, the Court notes that it previously granted Makar’s Motion

for Summary Judgment with reasons to follow. 12 At that time, the Court had
not yet ruled on Makar’s pending Motion to Strike. The Court has considered
the relevant documents at issue in Makar’s Motion to Strike 13 in rendering this
Order and Reasons. Accordingly, the Motion to Strike is DENIED.

Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
9 Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
10 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
11 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
12 Doc. 378.
13 See Docs. 328-7, 328-8, 329-5, 330-8, 349-3.
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8

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II.

Makar’s Motion for Summary Judgment (Doc. 279)
In its Motion for Summary Judgment, Makar argues that it is entitled

to dismissal of all claims against it by Plaintiffs because it was not negligent
and because it is relieved of any liability under LA. STAT. ANN. § 9:2771. In
opposition, Plaintiffs argue that Makar literally created the hazardous
condition that caused Donahue’s injuries by installing the new mezzanine in
close proximity to the unguarded overhead ceiling fan. Plaintiffs also argue
that Makar failed to take reasonable steps to warn third parties or to
physically guard against the hazardous condition despite having knowledge of
the hazardous condition.
A. Statutory Immunity Under LA. STAT. ANN. § 9:2771
At the outset, the Court notes that statutory immunity under LA. STAT.
ANN. § 9:2771 is unavailable to Makar. This statute exculpates a contractor
from liability
for destruction or deterioration of or defects in any work
constructed, or under construction, by him if he constructed, or is
constructing, the work according to plans or specifications
furnished to him which he did not make or cause to be made and
if the destruction, deterioration, or defect was due to any fault or
insufficiency of the plans or specifications. 14
However, this immunity does not extend to a contractor in third-party tort
actions who has reason to believe that compliance with the specifications or
plans would create a hazardous condition. 15 Here, there is no factual dispute
that Makar had knowledge of the hazardous condition created by the proximity
of the fan to the new mezzanine because, while installing the new mezzanine,
one of Makar’s employees was injured by the unguarded fan blades much in

14
15

LA. STAT. ANN. § 9:2771.
Harbor Const. Co., Inc. v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 69
So. 3d 498, 504 (La. App. 4 Cir. 2011) (citing Morgan v. Lafourche Recreation Dist. No. 5,
822 So. 2d 716, 721–22 (La. App. 1 Cir. 2002)).

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the same manner that Donahue would come to be injured. Because of this
knowledge, Makar is not immune from liability under LA. STAT. ANN. § 9:2771.
B. Negligence Analysis
Having disposed of Makar’s argument for statutory immunity, the Court
now turns to the negligence analysis. Louisiana courts employ a duty-risk
analysis for negligence. 16 This requires proof of five separate elements: (1)
duty, (2) breach of duty, (3) cause-in-fact, (4) legal cause, and (5) damages. 17
“The threshold issue in any negligence action is whether the defendant
owed the plaintiff a duty, and whether a duty is owed is a question of law.” 18
In general, a contractor owes third parties a duty to exercise ordinary care and
refrain from creating hazardous conditions in the fulfillment of its contractual
obligations. 19
Plaintiffs furnished the Court with three expert opinions and one
supplemental declaration to establish the particular duties owed by
contractors

and

subcontractors.

These

opinions

establish

that

“all

subcontractors who perform work must ensure that the work area is safe.” 20
Further, “[e]very contractor and subcontractor on the jobsite . . . share
responsibility for the safety of the work site and all those who enter it.” 21
Plaintiffs’ experts also opined that “[t]o the extent that the designers and other
related subcontractors should have reorganized the hazard, they had an
obligation to do so.” 22 Finally, “[a]ny time an employer has knowledge of a
similar prior accident, the employer has a duty to protect its employees from
Bufkin v. Felipe’s La., LLC, 171 So. 3d 851, 855 (La. 2014).
Id.
18 Id. (citing Milvert v. Answering Bureau, Inc., 120 So. 3d 678, 687–88 (La. 2013)).
19 Cormier v. Honiron Corp., 771 So. 2d 193, 197 (La. App. 3 Cir. 2000) (citing Oxley v. Sabine
River Auth., 663 So. 2d 497, 504 (La. App. 3 Cir. 1995)).
20 Doc. 279-6 at 1.
21 Id. (emphasis added).
22 Id. at 2.
16
17

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exposure to the same hazard.” 23 Even without a prior similar accident,
Plaintiffs’ experts noted, the “well-recognized” mechanical hazard of an
exposed, rotating fan “within reach of persons in the area” creates a duty to
“positively prevent[]” the fan from starting and operating. 24 “Ideally, such a
fan would be entirely disconnected from its power source.” 25 Notably, these
expert opinions fail to articulate specific duties owed by Makar.
The undisputed facts demonstrate that: the mezzanine was designed by
Steele; 26 Steele contracted with Makar solely for the purpose of erecting a
mezzanine as one phase of a multi-phase project; Makar repeatedly asked
Republic to turn off the fan while it was on the job site erecting the mezzanine;
Republic did not take any action to turn off or remove the fan while Makar was
on the job site despite repeated requests from Makar to do so; Makar’s
employees had no knowledge of where the control switch for the fan was, nor
did they have any custody or control over the fan more generally; Republic
turned the fan off the day after a Makar employee, Torres, was injured by it;
Republic, W&H, and Steele were made aware of Torres’ injury within hours of
it happening; on the last day of the job, Torres told Republic to remove the fan
entirely as it posed a hazard, even though the fan had been successfully turned
off by that point; the fan remained turned off from Makar’s last day until
months later, when Donahue was injured; and after completing the Steeledesigned mezzanine pursuant to the terms of its contract with Steele, Makar
permanently left the job site.

Doc. 279-8 at 2 (emphasis added).
Id.
25 Id.
26 Plaintiffs attempt to argue that Makar had influence over the design of the new mezzanine
by pointing to some email communications between representatives of Steele and Makar,
but those emails demonstrate, at most, only that Makar inquired into the weight of an “ibeam” to be used in the structure. Doc. 285-2 at 3.
23
24

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Plaintiffs assert that the generalized duties applicable to all contractors
and subcontractors—to refrain from creating hazardous conditions and to
ensure a safe workspace—required Makar to refuse to finish its work once it
became aware of the fan’s proximity to the mezzanine. Plaintiffs’ own experts,
however, fail to articulate such duty. Nor do Plaintiffs provide the Court with
any legal authority for charging Makar with such a heightened duty.
In briefing and at oral argument, Plaintiffs also assert that Makar
should have remained on the job site indefinitely, after its work was completed,
in order to monitor the employees of other businesses as part of its duty to
protect third parties. Again, Plaintiffs’ experts do not articulate such a duty.
In fact, one of Plaintiffs’ experts says the opposite: “[e]very contractor and
subcontractor on the jobsite . . . share responsibility for the safety of the work
site and all those who enter it.” 27 Thus, not only is the expert’s opinion silent
as to any purported duty to remain on a jobsite to ensure continued safe
conditions, but it limits responsibility for work site safety to contractors on the
jobsite. Taking Plaintiffs’ argument to its logical conclusion, it becomes readily
apparent that such a duty would be unworkable. Contractors would remain on
jobsites indefinitely, slowing down construction projects and driving up the
costs of construction.
Finally, Plaintiffs argue that Makar breached a duty in failing to
physically guard against the fan’s hazardous condition by putting up safety
tape or marking the area with cones. Plaintiffs fail to provide this Court with
any law or expert opinion that requires such actions for Makar to discharge its
duties to third persons. In terms of guarding against the fan, Plaintiffs’ experts
opine that the fan should have been disconnected from its power source 28 or

27
28

Doc. 279-6 at 1 (emphasis added).
Doc. 279-8 at 2.

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subject to a “Lock Out Tag Out” procedure. 29 The evidence presented to the
Court demonstrates that Makar had no control over the fan or any knowledge
of how to turn it off. Any duty to disconnect the fan from its power source or to
enact a “Lock Out Tag Out” procedure was outside the scope of Makar’s
authority or ability. That someone later turned the fan on months after Makar
had left the job site can hardly be attributed to Makar’s lack of putting up
caution tapes or cones.
This is not a case where the duty owed is so obvious that expert opinions
articulating duties are unnecessary. Plaintiffs’ experts fail to articulate any
actionable duty that Makar did not discharge, and the Court cannot find one
in the law. 30 If anything, the evidence speaks to how Makar effectively
discharged its duty: its warnings and repeated admonitions resulted in the fan
remaining off from the day after Torres’ injury to the day of Donahue’s injury.
Thus, the Court finds that Makar did not breach a duty owed to Donahue.
CONCLUSION
For the foregoing reasons, Makar’s Motion to Strike is DENIED.
Makar’s Motion for Summary Judgment is GRANTED, and it is hereby
DISMISSED WITH PREJUDICE.

29
30

Doc. 279-7 at 2.
In Lafont v. Chevron, a Louisiana court found that the duty owed by a contractor to another
contractor’s employee while each contractor was on the same site performing work was “at
most the duty to refrain from creating an unreasonable risk of harm or a hazardous
condition.” Lafont v. Chevron, U.S.A., Inc., 593 So. 2d 416, 420 (La. Ct. App. 1991). The
Lafont plaintiff was injured while performing volunteer work for another contractor when
he had some downtime. Despite performing work for the other contractor, the court refused
to impute additional duties to the non-employer contractor that would otherwise be owed
to an employee, such as a duty to train or supervise. Here, the relationship between
Donahue and Makar is even further removed; Makar was never on the site at the same
time as Donahue, nor did Donahue ever perform work of any kind for Makar.

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New Orleans, Louisiana this 27th day of January, 2020.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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