Donahue et al v. Republic National Distributing Company, LLC et al
Filing
412
ORDER AND REASONS denying 400 Motion for Reconsideration of this Court's January 17, 2020 Order granting Makar's Motion for Summary Judgment (Doc. 279). Signed by Judge Jane Triche Milazzo. (ecm)
Case 2:16-cv-13948-JTM-JVM Document 412 Filed 09/09/20 Page 1 of 7
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”(1)
ORDER AND REASONS
Before the Court is Plaintiffs’ Motion for Reconsideration (Doc. 400) of
this Court’s January 17, 2020 Order granting Makar’s Motion for Summary
Judgment (Doc. 279). For the following reasons, Plaintiffs’ Motion is DENIED.
BACKGROUND
This action arises out of injuries suffered by Plaintiff Joshua Donahue
while working on a project to renovate Defendant Republic National
Distributing Company, LLC’s (“Republic”) warehouse. Makar Installations,
Inc. (“Makar”) was a subcontractor on the project, tasked with installing a new
mezzanine designed by Steele Solutions, Inc. (“Steele”).
Makar began
construction of the Steele-designed mezzanine on May 4, 2015 and completed
the installation on May 15, 2015.
Toward the end of Makar’s installation job, its project supervisor,
Antonio Torres (“Torres”), was struck in the head by the blades of a fan that
hung above the new and old mezzanines. Torres testified that, prior to the
accident, he had repeatedly asked Republic employees and representatives to
turn off the fan, but it was never turned off. Neither Torres, nor any other
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Makar employee, knew where the fan switch was located. 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 notified Makar’s owner, Gilbert Makaryk, who in turn
notified the other subcontractors.
After Makar completed construction of the Mezzanine and departed
Republic’s warehouse, Donahue, an employee of American ManPower Services,
Inc. (“AMPS”), began working on the electrical installation for the conveyor
system. On July 29, 2015, Donahue 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 testified that the fan was off the entire time he was there.
At the time of his accident, however, the overhead fan was turned on. Donahue
suffered numerous injuries and brought suit against Republic and the many
contractors and subcontractors on the project.
On January 17, 2020, after hearing oral argument on the motion, this
Court issued an order granting Makar’s Motion for Summary Judgment and
dismissing Makar from this suit.1 On January 27, 2020, this Court issued its
Order and Reasons in support of its January 17, 2020 Order.2 Plaintiffs now
seek reconsideration of the Court’s decision to grant Makar’s Motion for
Summary Judgment and dismiss Makar with prejudice.
1
2
Doc. 378.
Doc. 382.
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LEGAL STANDARD
A Motion for Reconsideration of an interlocutory order is governed by
Federal Rule of Civil Procedure 54(b), which states that: “[A]ny order or other
decision, however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end the action as to
any of the claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’ rights and
liabilities.” “Under Rule 54(b), ‘the trial court is free to reconsider and reverse
its decision for any reason it deems sufficient, even in the absence of new
evidence or an intervening change in or clarification of the substantive law.’” 3
“‘[T]he power to reconsider or modify interlocutory rulings is committed to the
discretion of the district court, and that discretion is not cabined by the
heightened standards for reconsideration’ governing final orders.’”4
LAW AND ANALYSIS
This Court previously held that Defendant Makar was entitled to
summary judgment on Plaintiffs’ negligence claim because Plaintiffs failed to
prove that Makar owed a legal duty to prevent Donahue’s injury.5 Plaintiffs
now argue that this Court’s decision was erroneous because the Court misapplied Louisiana’s duty-risk negligence analysis. Specifically, Plaintiffs argue
that this Court purported to rule on the existence of a duty but instead
acknowledged that a duty existed and ruled on the issue of breach. Plaintiffs
Austin v. Kroger Texas, L.P., No. 16-10502, 2017 WL 1379453, at *9 (5th Cir. 2017) (quoting
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).
4 Id. (quoting Saint Annes Dev. Co. v. Trabich, 443 Fed. Appx. 829, 831–32 (4th Cir. 2011)).
5 See Doc. 382 at 11.
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thus contend that reconsideration is warranted as the Court should have
preserved the issue of breach for trial and genuine issues of fact remain.
A. Findings of Duty and Breach
In its Order and Reasons, this Court found that the law did not provide
any heightened duty for Makar to prevent against Donahue’s specific injury.
Plaintiffs, however, argue that this Court acknowledged the existence of such
a duty and then made a factual determination as to whether that duty was
breached. As support for this contention, Plaintiffs look to the following excerpt
from the Order and Reasons:
Plaintiffs’ experts fail to articulate any actionable duty that Makar
did not discharge, and the Court cannot find one in the law. 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.6
Plaintiffs misconstrue this Court’s holding.
Plaintiffs argued in their briefing and at oral argument that Makar’s
duties included altering the design of the mezzanine, removing the fan, placing
physical markers around the fan, refusing to work after becoming aware of the
fan, and remaining on the job site after finishing its work. Plaintiffs, however,
did not put forth any legal support for a finding that Makar had an additional
legal duty to take such actions or that the scope of Makar’s duty as a
subcontractor encompassed such obligations. This Court, therefore, disputes
any contention that its Order and Reasons demonstrates a finding that Makar
had a duty to prevent against Donahue’s injury.
Further, Plaintiffs argue that this Court’s use of the phrase “did not
discharge” and “breach” demonstrate that this Court committed legal error.
6
Doc. 382 at 11.
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Again, this Court disagrees. This Court found that Makar had fulfilled any
generalized duty it had as a subcontractor to provide a safe working
environment. To the extent this Court ruled on the discharge of a duty,
therefore, it was as to Makar’s duty to provide a safe work environment while
it was on the jobsite.7 Although Plaintiffs argue that case law warrants against
ruling on the issue of breach at the summary judgment stage, this Court is well
within its right to conclude that a duty was not breached when there is no
genuine issue of material fact to the contrary.8
B. Genuine Issues of Material Fact
Plaintiffs also argue that there are genuine issues of material fact that
warrant against this Court’s ruling on summary judgment. First, Plaintiffs
argue that there is a genuine issues of material fact as to what Torres told
Republic after his accident. To the extent that there is a discrepancy between
Torres’s testimony and that of Republic’s representative, this Court continues
to find it immaterial.9
Second, Plaintiffs argue that there is a genuine issue of material fact as
to Makar’s involvement in the design of the mezzanine and consequently
Makar’s duty to comply with Occupational Safety and Health Administration
See, e.g., Roberts v. Benoit, 605 So. 2d 1032, 1046 (La. 1991), on reh’g (May 28, 1992) (finding
that the defendant owed a duty to exercise reasonable care in hiring, that the scope of that
duty did not encompass the risk of plaintiff’s injury, and that the court’s finding as to scope
of the duty abrogated the need to discuss breach).
8 See Fornah v. Schlumberger Tech. Corp., 737 F. App’x 677, 682 (5th Cir. 2018). In Fornah,
the Fifth Circuit affirmed the district court’s finding on summary judgment that an
independent contractor did not owe a duty to the employee of another independent
contractor “beyond the exercise of ordinary care that is owed to the public generally.” Id.
(internal quotations omitted). The Fornah court went on to conclude: “Likewise, Fornah
failed to present any evidence that Schlumberger breached the duty owed between
independent contractors to ‘refrain from gross, willful or wanton negligence, and . . . from
creating an unreasonable risk of harm or a hazardous condition.’” Id. (emphasis added).
9 Plaintiffs point to Carlos Murillo’s testimony that he was aware of a prior injury but “was
never sure if it was a fan or a beam.” Doc. 400-1 at 3 n.9. The remaining undisputed facts
are sufficient to support this Court’s finding. See Doc. 382 at 9.
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(“OSHA”) standards. This Court explicitly addressed this argument in its
Order and Reasons, finding that no evidence supported Plaintiffs’ assertion. 10
Plaintiffs now add that the broad definition of “employer” under 29 U.S.C. §
654 embraced in Acosta v. Hensel Phelps Construction Company supports
Plaintiffs’ contention that Makar is a “Creating Employer,” “Exposing
Employer,” and “Correcting Employer” under OSHA.11 In Acosta, the Fifth
Circuit affirmed the Secretary of Labor’s interpretation of 29 U.S.C. § 654 as
allowing the Secretary to cite a general contractor as a “controlling employer”
with respect to the work of subcontractors.12 As Makar was a subcontractor on
the Republic project, Acosta does not influence this Court’s holding.
In sum, Plaintiffs proffer many of the same arguments they brought
before this Court in briefings and in oral argument. Accordingly, this Court
sees no need to disturb its previous decision dismissing Makar with prejudice.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Reconsideration is
DENIED.
See Doc. 382 at 9 n.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 ‘i-beam’ to be used in the structure.” (citing Doc. 2852 at 3)).
11 Acosta v. Hensel Phelps Constr. Co., 909 F.3d 723 (5th Cir. 2018).
12 Id. In its reasoning, the Fifth Circuit noted:
The interpretation makes practical sense. In a place of employment like a
construction worksite . . . only the general contractor maintains supervisory
authority over—and has access to—the entire space. If a general contractor
enjoys the benefits of project supervision, it follows that he should also bear
the burdens, by being held to comply—and to direct its subcontractors to
comply—with the Act’s safety standards. Id. at 735.
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New Orleans, Louisiana this 9th day of September, 2020.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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