text:
    Eric Mark ALLISON, et al. v. CITGO PETROLEUM CORPORATION, et al.
    18-302 18-303
    Court of Appeal of Louisiana, Third Circuit.
    December 19, 2018
   Robert E. Landry, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive - Suite 900, Lake Charles, LA 70601, Telephone: (337) 433-9436, COUNSEL FOR: Defendant/Appellant - CITGO Petroleum Corporation

Kirk Albert Patrick, III, R. Heath Savant, Donahue, Patrick & Scott, 450 Laurel Street - Suite 1600, Baton Rouge, LA 70801, Telephone: (225) 214-1908, COUNSEL FOR: Defendant/Appellee - R & R Construction, Inc.

Wells Talbot Watson, Bagget, McCall, Burgess, P. O. Drawer 7820, Lake Charles, LA 70606-7820, Telephone: (337) 478-8888, COUNSEL FOR: Plaintiffs/Appellees - Robert D. Marshall, Tamara N. Marceaux, Daron Christopher Hidalgo, John Thomas Cochran, Gewan Papillion, Alfred Joseph Carrier, Eric Mark Allison, and Marcus Dwayne Clark

Marshall Joseph Simien, Jr., Simien Law Firm, 2129 Fitzenreiter Road, Lake Charles, LA 70601, Telephone: (337) 497-0022, COUNSEL FOR: Defendant/Appellant - CITGO Petroleum Corporation

Richard Elliott Wilson, Cox, Cox, Filo, Camel & Wilson, 723 Broad Street, Lake Charles, LA 70601, Telephone: (337) 436-6611, COUNSEL FOR: Plaintiffs/Appellees - Gewan Papillion, Eric Mark Allison, Marcus Dwayne Clark, John Thomas Cochran, Daron Christopher Hidalgo, Tamara N. Marceaux, Alfred Joseph Carrier, and Robert D. Marshall

Craig Isenberg, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C., 909 Poydras, Street - 24th Floor, New Orleans, LA 70112, Telephone: (504) 589-9700, COUNSEL FOR: Defendant/Appellant - CITGO Petroleum Corporation

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.

THIBODEAUX, Chief Judge.

The defendant, CITGO Petroleum Corporation (CITGO), appeals the trial court's judgment denying its motion for summary judgment on the issue of statutory employer immunity. The dispute arose following a release of toxic slop oil and fumes and wastewater for which CITGO stipulated fault. Finding genuine issues of material fact and law, we affirm the trial court's judgment denying CITGO's motion for summary judgment.

I.

ISSUES

We must decide whether the trial court erred in denying CITGO's motion for summary judgment on the issue of statutory employer immunity.

II.

FACTS AND PROCEDURAL HISTORY

A heavy rainfall on June 19, 2006, flooded CITGO's waste treatment facility, and CITGO released toxic slop oil and wastewater into the Calcasieu River and surrounding waterways. On the same date, CITGO also released toxic fumes, hydrogen sulfide (H2 S) and sulfur dioxide (S02), into the air. It is estimated that close to 1,000 people filed tort suits in the Lake Charles area based upon injuries caused by the toxic releases. Trials have been ongoing, and many damages have been awarded.

In the months following the releases, CITGO hired various local companies/contractors to clean the oil and sludge from the waterways, exposing additional workers to the toxic liquid and fumes. On September 19, 2008, CITGO filed an Admission of Fault for the releases as to "all cases" filed by the law firm of Baggett McCall and the firm of Cox, Cox, Filo, Camel & Wilson. In the Admission, CITGO stated that it would "pay plaintiffs for all their compensatory damages, if any" which they could prove were proximately caused by the releases on June 19, 2006. The present Plaintiffs were party litigants at the time of the stipulation of fault.

In December 2016, over ten years after the releases and the initial cleanup activities, CITGO filed motions for summary judgment in the now-consolidated suits of Eric Mark Allison, et al. v. CITGO Petroleum Corporation, et al. (Trial Docket No. 2007-2786, Appeal No. 18-302) and Wilvon Allison, et al. v. CITGO Petroleum Corporation, et al. (Trial Docket No. 2007-3286, Appeal No. 18-303). Therein, CITGO asserted that it was the statutory employer of certain plaintiffs and was, therefore, immune from tort suits by those plaintiffs. In support of its motions, CITGO attached partial contracts containing language that it was the statutory employer of the contractors' employees.

At the combined hearing on the two above-listed motions for summary judgment on January 13, 2017, the trial court found the partial contracts inadmissible and denied CITGO's motions as to nine plaintiffs. The trial court mailed the consolidated judgment of denial on February 6, 2017. CITGO did not seek writs on the judgment. The plaintiffs proceeded to trial on the merits on damages and causation on February 13, 2017, and a consolidated final judgment awarding them damages was mailed in December 2017. CITGO did not raise the issue of statutory immunity at the trial on the merits; nor did it attempt to supply the missing parts of the contracts.

CITGO has now filed a suspensive appeal of the final judgment on causation and damages as to five plaintiffs working under three contractors, but it does not appeal any element of the damage awards. Rather, CITGO appeals the earlier ruling denying CITGO's statutory employer status. The denial of a motion for summary judgment is an interlocutory judgment which is not subject to appeal. See La.Code Civ.P. arts. 968, 1841, and 2083. The only remedy is to request the appellate court to exercise its supervisory jurisdiction by applying for writs. Louviere v. Byers , 526 So.2d 1253 (La.App. 3 Cir. 1988) (citing Batson v. Time Inc. , 298 So.2d 100 (La.App. 1st Cir.1974) ). The thirty-day time period for taking writs from the February 6, 2017 judgment denying summary judgment is long past. See Uniform Rules-Courts of Appeal, Rule 4-3.

However, while not addressing this exact procedural posture, where no part of the final judgment on causation and damages is being appealed, we have generally held that review of an interlocutory judgment may be obtained by assigning the issue as error in the unrestricted appeal of the final, appealable judgment to which it relates. See Boquet v. Boquet , 18-105 (La.App. 3 Cir. 3/21/18), 241 So.3d 1127 ; Martinez v. Rivet , 16-100 (La.App. 3 Cir. 4/13/16), 190 So.3d 461 ; Babineaux v. Univ. Med. Ctr. , 15-292 (La.App. 3 Cir. 11/4/15), 177 So.3d 1120. Here, where there was no objection to the appeal, we will review the denial of CITGO's motion for summary judgment. For the reasons that follow, we affirm the judgment of the trial court denying summary judgment on the issue of statutory employer immunity.

III.

STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary judgment de novo, "using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Samaha v. Rau , 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 882 ; La.Code Civ.P. art. 966(A)(3). The party that files a motion for summary judgment bears the burden of proof on the motion. La.Code Civ.P. art. 966(D). If, however, the moving party will not bear the burden of proof at trial on the issue addressed in the motion and points out that there is an "absence of factual support for one or more elements essential to the adverse party's claim, action, or defense[,]" the non-moving party must then produce evidence showing that a genuine issue of material fact exists "or that the mover is not entitled to judgment as a matter of law. " La. Code Civ.P. art. 966(D)(1). If the non-moving party then fails to produce such evidence, "there is no genuine issue of material fact[,] and summary judgment will be granted. " Bufkin v. Felipe's La., LLC , 14-288, p. 3 (La. 10/15/14), 171 So.3d 851, 854.

Stutes v. Greenwood Motor Lines, Inc. , 17-52, p. 5 (La.App. 3 Cir. 11/22/17), 234 So.3d 75, 80 (emphasis added).

IV.

LAW AND DISCUSSION

In these consolidated suits, CITGO contends that the trial court erred in denying it statutory employer status as to Gewan Papillion, Alfred Carrier, John Cochran, Earl Jones, and Wilvon Allison, where their direct employers/contractors had contracts with CITGO stating that CITGO was the statutory employer of the contractors' employees. The three contracts at issue are between CITGO and Miller Environmental Services, Inc. (Miller Environmental), Gulf Services Mechanical, LLC (Gulf Services), and Angelle Concrete, Inc. (Angelle Concrete). CITGO contends that it properly submitted the relevant portions of the three contracts, along with affidavits of CITGO's representatives, Jamie Boudreaux and Ray Hill, proving CITGO's statutory employer status, and the trial court erred in excluding the contracts from evidence. CITGO further contends that Plaintiffs did not timely object to the incomplete condition of the contracts in their opposition brief in violation of La.Code Civ.P. art. 966(D)(2).

CITGO further argues that, even if Plaintiffs had objected timely, it was still error to exclude CITGO's offerings "since it is plaintiffs' burden, not CITGO's, to demonstrate to the trial court that the [missing portions of the] contract exhibits which were not offered [by CITGO] contained language which would somehow affect or change the statutory employer language in the primary portion of the contracts" (emphasis added). CITGO further contends that Plaintiffs were working pursuant to contracts giving CITGO statutory immunity from tort, and that Plaintiffs failed to present "any evidence creating a genuine factual issue concerning plaintiffs' status as statutory employees and, thus, CITGO was entitled to summary judgment." For the following reasons, we find no merit in any of CITGO's contentions.

Timeliness of Plaintiffs' Objections to Contracts

Before we address the contracts at issue, we will address CITGO's assertions regarding the timeliness of Plaintiffs' objections under La.Code Civ.P. art. 966(D)(2) (emphasis added), which states:

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.

CITGO filed its motions for summary judgment in both consolidated cases on December 9, 2016. Plaintiffs filed their oppositions in both consolidated cases on December 29, 2016. In the last paragraph of their opposition briefs in both cases, Plaintiffs state: "Third, CITGO's 'contracts' are incomplete and objectionable." This general objection followed nine pages of specific arguments on the flaws in CITGO's position. In particular, in Appeal No. 18-303, in the portion of the opposition brief regarding Wilvon Allison, he argues the incompleteness of two specific contracts:

Moreover, the service agreement between Citgo and Gulf Services Mechanical is four pages. Nowhere in the four pages of that contract is there a statutory employer provision. And although the contract references Exhibits A, C, and D, those exhibits have not been produced as part of the contract. (See Exhibit 6, CITGO-Gulf Serv. Indus. LLC 0082- 105). In addition, Citgo did not produce the entirety of the August 4, 2006, service contract between Citgo and Gulf Services Industrial. That contract states that "Exhibits A-1, B-1, C, Attachment C-1, Attachment C-3, Exhibits E, F, J, M, N and Attachment G attached hereto are a part of this contract as is Company's Contractor's Manual (Latest Edition) by reference." Id. None of those exhibits or attachments were produced. Thus, there is no written contract as required by law.

Thus, Plaintiffs' objections to the incomplete condition of CITGO's contracts were raised in timely filed oppositions in compliance with La.Code Civ.P. art. 966(D)(2). There is no merit to CITGO's assertion regarding timeliness.

Affidavits

The affidavits of Ray Hill, dated December 8, 2016, state that he is CITGO's current Manager of Health, Safety, Security and Environmental Protection at the Lake Charles refinery. He attests that CITGO supplements its workforce as needed "by contracting with companies like" Miller Environmental, Gulf Services, and Angelle Concrete for construction, maintenance, and the remediation of environmental releases. He further attests that the work and materials supplied by these contractors were necessary to maintaining the refinery's equipment and safe operations, and that the activities performed by them were integral and essential to the operation of the refinery. Mr. Hill's affidavits briefly mention the spill on June 19, 2006, but they do not reference or attach any specific contracts or the dates of any contracts with the contractors. Nor do they reference any provision of any contract or discuss a statutory employment relationship between CITGO and the employees of the contractors.

The affidavits of Jamie Boudreaux, also dated December 8, 2016, state that he is CITGO's Manager of Purchasing and Materials at the Lake Charles refinery. Mr. Boudreaux's affidavits provide contract numbers and effective dates for the contracts, which are ostensibly attached to the affidavits. But the affidavits do not attest to any provision in any contract or to a statutory employment relationship between CITGO and the employees of any of the three contractors.

Contracts

The controlling law states, in pertinent part:

[A] statutory employer relationship shall not exist between the principal and the contractor's employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee's immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor's employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.

La.R.S. 23:1061(A)(3) (emphasis added).

Miller Environmental

The contract with Miller Environmental as attached to CITGO's motion for summary judgment consisted of only one typed page, even though the estimated cost of service was $5,740,000.00. The contract number was 4504176848, and the effective dates were June 27, 2006, through July 29, 2006. The bottom of the page was signed by Matt Dartez and Jamie Boudreaux. The next to last paragraph on the page stated that "Contractor agrees and recognizes that the Company shall be the Statutory Employer of all Contractor personnel assigned to provide Services under this Agreement in accordance with the requirements of Louisiana Revised Statutes [sic] Section 23:1061A(3)."

The last paragraph on the page stated: "The Contract Exhibits A-1, B-1, C, C-1, C-2, E, F, J, L, M, N and O attached hereto are a part of this contract as is Company's Contractor's Manual (Latest Edition) by reference." None of the exhibits were attached. Mr. Boudreaux's affidavit stated that a "true and correct copy of Contract No. 4504176848" was attached. A true and correct copy was not attached. CITGO argued at the hearing that the exhibits were not relevant, but even after losing its motion for summary judgment because the contracts were incomplete, CITGO still did not produce the missing parts at the trial on the merits a month later. Moreover, we note that CITGO did not obtain an affidavit from Miller Environmental, the other party to the contract, to identify the contract or to testify as to the accuracy or intent of the contract.

We decided a case which is factually similar to this case and very instructive even though it is distinguishable from an evidentiary standpoint. In Trent v. PPG Industries, Inc. , 03-1068 (La.App. 3 Cir. 2/4/04), 865 So.2d 1041, the plaintiff worked for a contractor, Ron Williams Construction, and was injured by toxic fumes in the scope of his employment. He sued the project owner, PPG. PPG filed a motion for summary judgment asserting that PPG was the plaintiff's statutory employer pursuant to its contract with the contractor and was immune from tort liability. Among other arguments, the plaintiff asserted that the contract was invalid because the addendum containing the language from La.R.S. 23:1061 was inconsistent with the remainder of the contract, using a different format, page numbering, font style, and title. Because the addendum appeared after several exhibits, it was not intended to be part of the contract. The trial court found the contract ambiguous and proceeded to determine the intent of the parties, stating as follows:

The ambiguity in this case is whether the parties intended the addendum to be a part of the contract. The title of the addendum is not clear and explicit and therefore the court must ascertain the common intent of the parties. La. Civ.Code art. 2045. In this case, the parties to the contract, PPG and Ron Williams, have stated via affidavit that the statutory employer provisions contained in the addendum have always been a part of the contract incorporated by reference through the general terms and conditions; incorporation of this provision was contemplated by the parties and was their intent. The plaintiff has not provided the court with any evidence that establishes a genuine issue of fact concerning the intent of the parties to this contract. Because the common intent of the parties is determinative of the interpretation of the contract and no issue of fact is present as to the intent of these parties, this court finds that the statutory employer provision is a valid part of the contract between PPG and Ron Williams.

Id. at 1045 (emphasis added). The trial court went on to find that the valid contract created a presumption that the plaintiff failed to rebut after testimony that the work he did was an integral part of PPG's business.

On appeal, we affirmed the trial court's judgment stating:

PPG included, with its motion for summary judgment, the affidavits of Brandt Smith, the Chief Operating Officer of RWC, and that of Richard P. Andersen, the Manager of Purchasing for Defendant, PPG. Both men professed intimate familiarity with the contract between their respective companies and both agreed that the addendum adding the statutory employer provisions to the contract between the parties was meant to be part of the contract and reflected the true intent of the parties.

Id. at 1048.

Conversely, in the present case, CITGO did not offer the affidavits of both parties to the contract, but instead offered only the affidavits of CITGO's own safety manager, Ray Hill, and CITGO's own purchasing manager, Jamie Boudreaux. Moreover, Boudreaux's affidavit stated that a true copy of the contract was attached. But CITGO failed to attach a true copy of the full contract, leaving out twelve exhibits and its contractor's manual which were incorporated by reference and described as part of the contract. And, the affidavits of Ray Hill and Jamie Boudreaux did not address the statutory employer provision at all. Accordingly, based upon our de novo review and careful examination of the partial contract proffered by CITGO, we find it inadmissible as summary judgment evidence.

Angelle Concrete

The contract with Angelle Concrete as attached to CITGO's motion for summary judgment consisted of a "Blanket Purchase Order Contract," also known as "Blanket 261," with effective dates from 1994 through 1996. Blanket 261 stated that the "Purchase Order Terms and Conditions" attached as Exhibit A, and the "Blanket Order Instructions" attached as Exhibit B, as well as "Specifications for Cast-In-Place Concrete" attached as Exhibit C, were part of the contract by reference. Only Exhibit A was attached; Exhibits B and C were missing. Thus again, the contract with Angelle Concrete was incomplete as presented. An attached letter from CITGO in 1998 notified Angelle Concrete that its "Old Contract Number 261" was changed to "Outline Agreement Number 4600000059" under their newly-implemented system. Another letter from CITGO dated March 10, 2004, stated that "Outline Agreement Number 4600000059" was extended for three years with effective dates of April 1, 2004, through March 31, 2007. The new effective dates and contract number corresponded with Jamie Boudreaux's affidavit, which stated that he was attaching

a true and correct copy of Outline Agreement Contract No. 46000000059 entered into in 1994 by Angelle Concrete, Inc. and CITGO for the delivery of "concrete," "admixtures" and "pumper truck services." The contract was renewed multiple times, including in 2004 for a three-year term that would include June and July 2006.

Again, CITGO did not attach a "true and correct copy" of the contract because it omitted Exhibits B and C of the contract. Exhibit A, "Purchase Order Terms and Conditions," consisted of nineteen paragraphs of CITGO's instructions to the "Contractor" or "Seller" regarding legal issues such as warranties on goods and services and indemnification provisions. Paragraph eighteen of Exhibit A contained the identical language regarding statutory employer status and La.R.S. 23:1061(A)(3) as that found in the Miller Environmental page discussed above. Exhibit A, however, did not contain dates, signatures, or initials; it did not contain any of the contract numbers discussed in Jamie Boudreaux's affidavit above, or any contract number at all; and it did not contain the name of the party to the contract, Angelle Concrete, referring only to the "Contractor" or "Seller."

There is nothing in Exhibit A to tie it to the contract with Angelle Concrete. Citgo did not obtain an affidavit from anyone at Angelle Concrete to identify the contract, discuss the intent of the parties, or confirm the statutory employer relationship in any manner consistent with Trent v. PPG , 865 So.2d 1041. And Jamie Boudreaux's affidavit, quoted above, did not address the statutory employer provisions in any manner. Accordingly, pursuant to our de novo review, we have carefully examined the partial contract proffered by CITGO and find it inadmissible as summary judgment evidence.

Gulf Services Industrial

The partial contracts and affidavit submitted by CITGO concerning Gulf Services Industrial is the most confusing and ambiguous of all. CITGO's motion for summary judgment in the Wilvon Allison suit (Trial Docket No. 2007-2786; Appeal No. 13-303) states as follows (citations to record omitted) (emphasis added):

Gulf Services Industrial - Wilvon Allison: Allison was employed as a truck driver at Gulf Services Industrial for two and a half years beginning in 2004. One week after the spill, Allison was assigned to an oil spill clean-up crew at the CITGO LCMC that pressure washed and squeegeed oil in to a sump and disposed of it with a vacuum truck. Allison testified that he was working on cleaning up the oil spill in the dike area where the spill occurred.

CITGO's purchasing manager, Jamie Boudreaux, stated in his affidavit that, attached to the affidavit

is a true and correct copy of Service Contract No. 4504166195 entered into by Gulf Services Industrial LLC, ("Gulf"), and CITGO for work commencing on July 6, 2006. The contract provided for "complete decontamination of [tanks]," including "removal of oil residue and other work activity." (Service Contract No. 4504166195, p.1).

The Gulf Services Industrial contract referenced above has an effective date of July 13, 2006 and was not signed by Gulf Services Industrial until August 4, 2006. Mr. Allison's contamination exposure began around June 26, 2006, before the stated commencement date of the contract on July 6; before the stated effective date of the contract on July 13; and well before the contract was finalized on August 4. The next-to-last paragraph of the one-and-one-half-page contract contains the same statutory employer language as the previously discussed contracts. The last paragraph of the contract states as follows: "The Contract Exhibits A-1, B-1, C, Attachment C-1, Attachment C-3, Exhibits E, F, J, M, N and Attachment G attached hereto are a part of this contract as is Company's Contractor's Manual (Latest Edition) by reference." None of these exhibits or attachments were included as evidence in CITGO's motion for summary judgment. Thus, the affidavit of Jamie Boudreaux was not accurate when it stated that a true and correct copy of the contract was attached.

Compounding matters, CITGO also attached a contract with Gulf Services Mechanical and stated that it applied to Mr. Allison as well. More specifically, the affidavit of Jamie Boudreaux (emphasis added) states that, attached to the affidavit

is a true and correct copy of Service Outline Agreement Contract No. 4600004645 between Gulf Services Mechanical , L.L.C. ("Gulf") and CITGO that was effective on March 2, 2005 through July 31, 2007. Gulf Services Mechanical, L.L.C. agreed to perform "Shop Pipe Fabrication Services ... on a non-exclusive basis on the premises of [CITGO's] Lake Charles Manufacturing Complex."

CITGO applies this contract to Mr. Allison even though CITGO stated that Mr. Allison was a truck driver for Gulf Services Industrial from 2004 until he was reassigned to a spill clean-up crew a week after the spill in June 2006. CITGO asserted that Mr. Allison was assigned under the Gulf Services Industrial contract to perform cleanup activities using a pressure washer and vacuum truck. Shop pipe fabrication under the Gulf Services Mechanical contract is difficult to reconcile with the other facts. Moreover, the Gulf Services Mechanical contract is also missing Exhibits C and D.

Based upon the foregoing, after careful examination of these partial contracts proffered by CITGO, we find them inadmissible as summary judgment evidence.

Burden of Proof

CITGO has essentially asserted that it is the plaintiff's burden of proof to demonstrate to the court that the missing parts of the contracts in CITGO's proffer will negate the portions presented that show statutory employer status. We disagree. Louisiana Code of Civil Procedure Article 966(D)(1) states that if the moving party does not have the burden at trial on the issue raised by its motion for summary judgment, then, and only then, must the non-moving party produce evidence of a genuine issue of material fact or law precluding summary judgment.

As stated in Trent v. PPG , 865 So.2d at 1047 (quoting Maddox v. Superior Steel , 00-1539, pp. 3-4 (La.App. 1 Cir. 9/28/01), 814 So.2d 569, 571-72 (footnote omitted) ):

The initial burden of proof remains with the mover and is not shifted to the non-moving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the non-moving party "submit evidence showing the existence of specific facts establishing a genuine issue of material fact." See Scott v. McDaniel , 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-1192, writ denied , 97-1551 (La. 9/26/97), 701 So.2d 991. If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La.Code Civ. P. arts. 966 and 967.

Here, however, because CITGO's contracts were found inadmissible at the hearing on January 13, 2017, when the trial on the merits occurred exactly one month later in February, CITGO still had the burden of proof on the issue of the missing parts of the contracts, and CITGO did not produce the missing parts. Based upon the final judgment and the reasons and supplemental reasons for judgment, the only issues at trial were causation and damages; neither the issue nor the contracts pertaining to statutory immunity ever came up at trial. Thus, the burden or persuasion never shifted to Plaintiffs because CITGO never produced whole contracts and, therefore, never properly supported its motion or carried its initial burden of proof.

CITGO's Stipulation to Fault & Liability for Compensatory Damages

The above analyses are firmly buttressed, if not overridden, by the fact that for over eight years CITGO did not act as a statutory employer by indemnifying Plaintiffs in any manner for their exposure to the toxic waste. Rather, CITGO stipulated to fault in the tort suits on September 19, 2008. On that date, CITGO filed an Admission of Fault stating that it would "pay plaintiffs for all their compensatory damages, if any, which plaintiffs are able to prove to the court were proximately caused by the releases of the materials into the air and waterways from the CITGO refinery in Calcasieu Parish Louisiana, on or about June 19, 2006." The admission then stated, "CITGO denies that it is liable for any punitive damages, and avers that plaintiffs have no cause of action for punitive damages." Since each Plaintiff proved his injuries and causation at trial, and was awarded damages for his exposure in 2017, CITGO's earlier stipulation of fault and promise to pay all compensatory damages must be examined as a judicial confession that cannot be revoked. More specifically, La.Code Civ.P. art. 1853 states:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

Likewise, our jurisprudence provides:

A judicial admission or confession is a party's express acknowledgment of the correctness of the fact or the act charged against him by his adversary. First Homestead Federal Savings and Loan Assoc. v. Coleman , 446 So.2d 551 (La.App. 3rd Cir.1984). Such a confession is designed to dispense with evidence and has the effect of withdrawing the subject matter of the confession from issue.
Jackson v. Gulf Insurance Co. , 250 La. 819, 199 So.2d 886 (1967). The stipulation amounts to full proof against those who made it and becomes the law of the case and must be enforced. Lockett v. Home Insurance Company , 413 So.2d 230 (La.App. 4th Cir.1982). It binds all parties and the court when not in derogation of the law. R.J. D'Hemecourt Petroleum Co. v. McNamara , 444 So.2d 600 (La.1983), cert. denied , 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984). In D'Hemecourt , the court reasoned that although the argument was made that LSA-R.S. 47:1576 provided an exclusive means to judicially dispute tax assessments, the effect of the stipulation was to determine the law of the case and it cannot be revoked. The instant case is similar to D'Hemecourt in that the workers' compensation law provides an exclusive remedy for the employee against the employer or principal, yet the principal stipulated to liability in tort. Therefore, we find that the judicial confession made by the defendants established the law of the case. The defendants admitted to liability with only quantum to be an issue at trial. Since the issue of liability in the action was one in tort, defendant's stipulation of liability was reasonably interpreted by both the court and the plaintiff as being a stipulation to liability in tort.

Davis v. Kreutzer , 93-1498 (La.App. 4 Cir. 2/25/94), 633 So.2d 796, 801, writ denied , 94-733 (La. 5/6/94), 637 So.2d 1050.

Here, having confessed to liability for all compensatory damages proved in court, CITGO cannot now appeal on the basis that it does not owe the compensatory damages proved at trial because of immunity. See La.Code Civ.P. art. 2085. The only appeal left for CITGO was the appeal of the trial court's finding of causation and the amounts of its awards of compensatory damages, which CITGO has decided not to appeal or assign as error. It cannot now complain that it did not withdraw the issue in September 2008.

Discovery Violations

Additionally, as articulated by Plaintiffs, CITGO did not timely respond to Plaintiffs' 2008 discovery requests for documentation supporting CITGO's affirmative defenses. While CITGO argued at the hearing that it had finally supplemented discovery in October of 2016, Plaintiffs point out:

Citgo did not properly identify the documents it is now relying on regarding these specific plaintiffs. Plaintiffs sent Citgo the above Interrogatories and Request for Production on behalf of each specific plaintiff. If Citgo wanted to assert statutory employer immunity as a defense to Mr. Alfred Carrier's claim, it should have properly identified and produced the entire contract between Citgo and Angelle Concrete. The same should have been done for the two other Angelle Concrete employees, Mr. John Cochran and Mr. Earl Jones. What Citgo did, however, was effectively a "document dump" by providing thousands of bates numbers that reference millions of pages of documents.
Citgo then contends that it produced the specific contract at issue. However, what Citgo produced is a haystack, leaving Plaintiffs to look for the needle. This is improper production of discovery.

The duty to timely supplement discovery under La.Code Civ.P. art. 1428 is well-settled, and our jurisprudence is replete with examples of sanctions imposed or exclusion of evidence or testimony due to a negligent or willful failure to disclose new or requested information. See Buxton v. Evans , 478 So.2d 736 (La.App. 3 Cir.), writ denied , 479 So.2d 921 (La.1985) ;

Louisiana Resources Co. v. Greene , 406 So.2d 1360 (La.App. 3 Cir. 1981), writ denied , 412 So.2d 84 (La.1982) ; Maddox v. Bailey , 13-564 (La.App. 1 Cir. 5/19/14), 146 So.3d 590 ; Krepps v. Hindelang , 97-980 (La.App. 5 Cir. 4/15/98), 713 So.2d 519 ; Lodrigue v. Houma-Terrebonne Airport Com'n , 450 So.2d 1004 (La.App. 1 Cir. 1984). Likewise, partial contracts withheld for eight years easily fall into the category of inadmissible evidence under our discovery rules as well.

V.

CONCLUSION

Pursuant to our de novo review, and for all of the foregoing reasons, the judgment of the trial court denying summary judgment to CITGO on the issue of statutory immunity is affirmed. Costs of this appeal are assessed to the defendant, CITGO Petroleum Corporation.

AFFIRMED.

GREMILLION, J., concurs and assigns written reasons.

PERRET, J., concurs with reasons.

GREMILLION, Judge, concurs and assigns the following reasons:

I concur in the result reached in this matter on the basis of CITGO's stipulation to fault and liability. I disagree with the majority's reasoning regarding CITGO's motion for summary judgment. The affidavits and attached contracts should not have been excluded from evidence on the motion for summary judgment. It was not CITGO's burden to prove that the omitted portions of the contracts did not address the statutory employment issue; rather, it became the plaintiffs' burden to prove that they did. The contracts should have been admitted and considered on the motion.

PERRET, CANDYCE, J. CONCURS WITH REASONS:

I respectfully concur. Although I agree with the majority opinion that "review of an interlocutory judgment may be obtained by assigning the issue as error in the unrestricted appeal of the final, appealable judgment to which it relates," I find that this court should review the denial of Citgo's motion for summary judgment on the issue of statutory employer immunity on the entire record since the case has been fully tried. As stated by the Louisiana Supreme Court in Hopkins v. American Cyanamid Company, 95-1088 (La. 1/16/96), 666 So.2d 615, 624 :

[O]nce a case is fully tried, the affidavits and other limited evidence presented with a motion for summary judgment--later denied by the district court--are of little or no value. Appellate courts should not rule on appeal after a full merits trial on the strength alone of affidavits in support of a motion for summary judgment that was not sustained in the district court. In such cases, appellate courts should review the entire record.

Because Citgo failed to raise the issue of statutory employer immunity at trial and because it did not attempt to supply the missing parts of the partial contracts throughout the litigation, I find, based upon my review of the entire record before us, no merit in Citgo's assignment of error that the trial court erred in denying its motion for summary judgment.

      Gewan Papillion was awarded a total of $24,140.00; Alfred Carrier was awarded $50,000.00; John Cochran was awarded $46,741.50; Earl Jones was awarded $45,920.00; and Wilvon Allison was awarded $35,796.58.

      Gewan Papillion, Appeal No. 18-302, worked for Miller Environmental; Wilvon Allison, Appeal No. 18-303, worked for Gulf Services; Alfred Carrier and John Cochran, Appeal No. 18-302, worked for Angelle Concrete; and Earl Jones, Appeal No. 18-303, also worked for Angelle Concrete.

      Because the motions for summary judgment and the affidavits used by CITGO in both consolidated suits are substantively the same, we will refer to the motions in the singular and to the affidavits as singular, but the language and the context will supply the specific description of the document under review.

      Miller Environmental was Gewan Papillion's employer. Mr. Papillion points out that CITGO did not complete the contract with Miller Environmental until July 17, 2006, well after Mr. Papillion's exposure began. We note, the record indicates that Mr. Papillion was exposed the "week after" the spill on June 19, 2006, which would have been roughly June 26, 2006, and the effective date of the contract was June 27, 2006.

      Angelle Concrete was the employer of Alfred Carrier, John Cochran, and Earl Jones.

      D. (1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
      La.Code Civ.P. art. 966.


source: Caselaw Access Project

author: Judge Tiffany G. Chase

license: Public Domain

text:
    STATE of Louisiana v. Keriana M. ALEXCEE
    NO. 2018-KA-0714
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 26, 2018
    Leon Cannizzaro, District Attorney, Donna Andrieu, Irena Zajickova, Assistant District Attorney, ORLEANS PARISH, DISTRICT ATTORNEY'S OFFICE, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Sarah Chervinsky, NFC LAW, L.L.C., 3919 Baronne Street, New Orleans, LA 70115, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

The State of Louisiana (hereinafter "the State") appeals the trial court's granting of the motion to quash the bill of information filed by the defendant, Keriana Alexcee (hereinafter "Ms. Alexcee"). Ms. Alexcee was charged with malfeasance in office, a violation of La. R.S. 14:134. The State also appeals the trial court's granting of a motion to suppress statements given by Ms. Alexcee in the course of an investigation by the Orleans Parish Sheriff's Office (hereinafter "OPSO"). The State lists two assignments of error for review. After consideration of the record before this Court and the applicable law, we find the trial court did not err in granting the motion to quash and pretermit discussion of the motion to suppress. For the reasons that follow, we affirm the ruling of the trial court quashing the bill of information.

RELEVANT FACTS AND PROCEDURAL HISTORY

Ms. Alexcee was a recruit in the employ of the OPSO. On October 17, 2016, she was assigned to work on a specialty tier of the Orleans Parish Prison (hereinafter "OPP"). A 15-year-old juvenile inmate was housed in a cell in the tier on which Ms. Alexcee was assigned and committed suicide by hanging. An investigation into the incident was conducted by Lieutenant Joseph Catalanatto (hereinafter "Lt. Catalanatto") of the OPSO. Lt. Catalanatto initially interviewed Ms. Alexcee, on the night of the incident. At the conclusion of the interview she was suspended and sent home.

As the investigation continued, Lt. Catalanatto determined that Ms. Alexcee may have violated certain policies of the OPSO. She was later called in for a second interview.

At some point during the second interview, Lt. Catalanatto felt his questions were seeking to elicit potentially incriminating responses from Ms. Alexcee so he stopped and advised her of her constitutional rights. Ms. Alexcee invoked her rights and declined to answer any further questions. The investigation concluded in December of 2017. Four months later, in April of 2017, Ms. Alexcee was arrested. The State filed a bill of information alleging she "committed malfeasance in office."

On October 6, 2017, Ms. Alexcee filed a motion for a bill of particulars requesting the State to provide: (1) the subsections of La. R.S. 14:134 that were allegedly violated; (2) the lawfully required affirmative duty that was allegedly violated; and (3) how Ms. Alexcee's actions constituted a violation of said affirmative duty. The State's initial bill of particulars erroneously identified the applicable provisions of the malfeasance statute as 14:153(A)(1) and (2). The State further requested a continuance pending the Louisiana Supreme Court's review of a recent malfeasance case from this Court. An amended bill of particulars followed on February 7, 2018, stating Ms. Alexcee was being charged with a violation of La. 14:134(A)(1) and (2) and that the affirmative duties she violated were La. Const. Art. X Sec. 30, La. R.S. 14:93, and La. R.S. 15:704.

On March 15, 2018, Ms. Alexcee filed a motion to quash pursuant to La. C.Cr.P. arts. 532(4) and 532(5). The State filed a second amended bill of particulars on the morning of the hearing, amending the bill of information to a violation of La. R.S. 14:134(A)(1) and alleging that Ms. Alexcee failed to perform a duty lawfully required of her, when she intentionally left her assigned post, pursuant to the consent judgment in Jones, et al. v. Gusman, et al. , EDLA 12-00859 (hereinafter "the Consent Decree").

More specifically, the State cited to paragraph (d) under the "Safety and Supervision" sub-heading of the Consent Decree which states that the OPSO shall:

Continue to ensure that correctional officers conduct appropriate rounds at least once during every 30-minute period, at irregular times, inside each general population housing unit and at least once during every 15-minute period of special management prisoners, or more often if necessary. All security rounds shall be documented on forms or logs that do not contain pre-printed rounding times.

The State contended that the second amended bill of particulars rendered the motion to quash moot. Ms. Alexcee disputed this contention arguing the Consent Decree failed to serve as the requisite affirmative duty of law as it imposed a duty on the OPSO rather than Ms. Alexcee individually. The matter was taken under advisement and the trial court ultimately granted the motion to quash. This appeal followed.

DISCUSSION

Although the State assigns two assignments of errors for review, we pretermit discussion of the second, regarding the motion to suppress, as our disposition on the motion to quash renders the assignment moot.

A motion to quash is appropriate whenever "[a] bill of particulars has shown a ground for quashing the indictment under Article 485." La. C.Cr.P. art. 532(5). When it appears from the bill of information and bill(s) of particulars that the defendant did not commit the offense charged then a motion to quash is properly granted unless the defect is cured. La. C.Cr.P. art. 485. We review a trial court's judgment on a motion to quash de novo , accepting the facts as alleged in the bill of information and bill of particulars as true. State v. Ferguson , 2014-1305, p. 6 (La.App. 4 Cir. 9/2/15), 176 So.3d 449, 454 (citing State v. Ancalade , 2014-0379, p.10 (La.App. 4 Cir. 1/14/15), 158 So.3d 891, 897 ).

In its second amended response to Ms. Alexcee's motion for a bill of particulars, the State alleges she violated La. R.S. 14:134(A)(1) which provides:

A. Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee.

"It is the violation of an affirmative duty, coupled with the requisite wrongful, criminally culpable intent which gives rise to the crime of malfeasance." State v. Petitto , 2010-0581, p. 11 (La. 3/15/11), 59 So.3d 1245, 1252. Thus, malfeasance presupposes the existence of an affirmative duty. State v. Perez , 464 So.2d 737, 741 (La. 1985) (citing State v. Passman , 391 So.2d 1140, 1141 (La. 1980) ).

Affirmative Duty

"[T]he focus of the courts has been on whether there is a statute or provision of law which imposes an affirmative, personal duty on the public officer." Petitto , 2010-6581, at p. 9, 59 So.3d at 1251-52. Whether a federal consent decree can serve as a "provision of law" and act as the requisite affirmative duty for a charge of malfeasance in office is a matter of first impression for this Court. However, we turn our attention to the specific facts of this case prior to addressing the broader matter. The question, therefore before us, is whether the Consent Decree imposes an affirmative, personal duty on Ms. Alexcee sufficient to meet the requirement of La. R.S. 14:134.

The State avers the Consent Decree acts as a "provision of law" such that it satisfies the affirmative, personal duty requirement of the malfeasance statute. More specifically, the State cites to language in the Consent Decree that declares it "shall be applicable to, and binding upon all parties, their officers, agents, employees, assigns, and their successors in office." The Consent Decree also defines "staff members" to include "all employees, including correctional officers, who have contact with prisoners."

Ms. Alexcee refutes the State's contention that the language in the Consent Decree applies to her specifically. She contends the "Substantive Provisions" section makes it clear that the affirmative duty is placed upon the OPSO and not her individually. Under the "Safety and Supervision" sub-heading, the Consent Decree dictates that the "OPSO shall take all reasonable measures to ensure that prisoners are not subjected to harm or the risk of harm." It additionally mandates that the OPSO shall perform the underlying security checks the State has alleged Ms. Alexcee intentionally failed to perform. Ms. Alexcee asserts that allowing the State to prosecute individual employees of the OPSO, based on a duty that arises from the Consent Decree, is too far attenuated from its intended purpose, i.e., to secure the Sheriff's compliance and prevent constitutional deficiencies. We agree.

Consent Decree as Contract

"A consent judgment is a bilateral contract wherein parties adjust their differences by mutual consent and thereby put an end to a lawsuit with each party balancing hope of gain against fear of loss." Plaquemines Par.Gov't v. Getty Oil Co ., 1995-2452, p. 6 (La. 5/21/96), 673 So.2d 1002, 1006. "[I]nterpretation of a consent judgment, i.e., a contract between parties, is a determination of the common intent of the parties." Mayo v. Hutchison , 2016-1642, p. 10 (La.App. 1 Cir. 9/27/17), 232 So.3d 567, 574 (citing La. C.C. art. 2045). The intent of the parties is to be determined by the words of the contract when those words are clear and explicit and lead to no absurd consequences. Id . We therefore turn to the Civil Code for guidance on interpreting the Consent Decree.

The parties to the Consent Decree are the United States Department of Justice, the class of inmates of OPP, and Sheriff Marlin Gusman in his official capacity as Orleans Parish Sheriff. The language of the Consent Decree provides, "the Parties seek to ensure the conditions in OPP protect the constitutional rights of prisoners confined there." It further charges that the Sheriff (and his successors in office) "shall ensure that the [OPSO] will take all actions necessary to comply with the provisions of [the Consent Decree]." Concordant with this mandate, the words "OPSO shall" are consistently used in the language of the "Substantive Provisions" section. "Each provision in a contract must be interpreted in light of the other provisions so that each is given meaning suggested by the contract as a whole." La. C.C. art. 2050. To that effect, a reading of the language relied upon by the State, that the Consent Decree "shall be applicable to, and binding upon all parties, their officers, agents, employees, assigns, and their successors in office," is more consistent with the Consent Decree as a whole, which suggests it is intended to ensure that responsibility for the actions of individual employees flows back to its signatories. We therefore disagree with the State's contention this cited language acts to impose an affirmative, personal duty on individual OPSO employees.

In support of its delegation argument, the State cites to La. R.S. 14:134(B) which provides:

Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.

An affirmative duty by way of delegation necessarily requires a predicate affirmative duty to delegate. The public officer who delegated the duty is not absolved of that duty when it is delegated.

The "Incidents and Referrals" sub-section of the Consent Decree requires the OPSO to implement a policy providing for disciplinary infractions if a staff member fails to report a reportable incident. The failure to "report any observed prisoner injury may result in staff discipline, up to and including termination." As criminal statutes are narrowly construed, "[o]ne of the inevitable consequences of [such] construction is that some forms of analogous misconduct will fall beyond the scope of a particular statute." Perez , 464 So.2d at 746 (Lemmon, J., dissenting). In Passman , the Louisiana Supreme Court "obviously rejected the idea that the Legislature intended to adopt an open-ended offense covering general derelictions of duty" such as the one the State alleges in the case sub judice . Id .

Our interpretation of the Consent Decree is in accord with Louisiana jurisprudence interpreting the malfeasance statute. "In Passman , this court was unwilling to say that any willful dereliction of duty constituted an intentional refusal or failure to perform a duty lawfully required of the public officer by the malfeasance statute." Perez , 464 So.2d at 746. (Lemmon, J., dissenting). Justice Lemmon further opined that "the malfeasance statute was not designed to punish all forms of misconduct in office" and that "[s]ome forms of misconduct by public officials are subject to other sanctions." Id . A prosecution for malfeasance should be "reserved for those cases in which a public official has blatantly abused the authority of his office and violated the public trust by his direct personal acts or failure to act." State v. Coker , 625 So.2d 190, 197-98 (La.App. 3 Cir. 1993).

In light of the law and plain language of the Consent Decree, we do not find that the Consent Decree imposes an affirmative, personal duty on Ms. Alexcee. Even accepting the facts as alleged in the bill of information and bills of particulars as true, we find the State has failed to satisfy the essential element of the existence of an affirmative, personal duty on Ms. Alexcee, a necessary prerequisite to the charge of malfeasance.

DECREE

For the foregoing reasons, the judgment of the trial court granting the motion to quash is affirmed.

AFFIRMED

LEDET, J., CONCURS WITH REASONS

I write separately to address the following three issues: (1) the application of the rule of lenity in this case; (2) the scope of a hearing on a motion to quash pursuant to La. C.Cr.P. art. 532(5) and La. C.Cr.P. art. 485 ; and (3) the delegation under La. R.S. 14:134(B) of a duty imposed by law.

Rule of Lenity

Whether a judicial decree, judgment, or order may supply the "duty lawfully required" under La. R.S. 14:134 is res nova . Nonetheless, it is unnecessary to resolve that issue in this case. Even assuming, arguendo , that a judicial decree, judgment, or order may supply the duly lawfully required under La. R.S. 15:134, the language of the Consent Decree cannot be read, under the rule of lenity, to have imposed any duty on Ms. Alexcee.

Discussing the rule of lenity, the Louisiana Supreme Court has observed as follows:

The principle of lenity developed on the basis that a person should not be criminally punished unless the law has provided a fair warning of what conduct will be considered criminal. 3 N. Singer, at § 59.04. The rule does not merely reflect a convenient maxim of statutory construction, but is based on the fundamental principle of due process that no person should be forced to speculate whether his conduct is prohibited. Dunn v. United States , 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979). Questions concerning the ambit of a criminal statute should be resolved in favor of lenity. Huddleston v. United States , 415 U.S. 814, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974).

State v. Piazza , 596 So.2d 817, 820 (La. 1992). Thus, in considering whether there exists a duty lawfully imposed, "[t]he duty must be expressly imposed by law upon the official." State v. Perez , 464 So.2d 737, 741 (La. 1985).

One provision of the Consent Decree unambiguously imposes on the Orleans Parish Sheriff's Office ("OPSO") a duty "to ensure that correctional officers conduct appropriate rounds at least once during every 30-minute period, at irregular times, inside each general population housing unit and at least once during every 15-minute period of special management prisoners, or more often if necessary" (the "Duty"). Nonetheless, the State contends that the Consent Decree imposed the Duty on Ms. Alexcee-directly and personally-by virtue of her status as an OPSO employee. In support, the State relies on another provision of the Consent Decree that makes the Consent Decree "applicable to, and binding upon, all Parties, their officers, agents, employees, assigns, and their successors in office."

These two inconsistent provisions render the Consent Decree, at best, ambiguous as to whether it imposed "an affirmative, personal duty" on Ms. Alexcee in her role as an OPSO Deputy. State v. Petitto , 10-0581, p. 9 (La. 3/15/11), 59 So.3d 1245, 1251. Because this prosecution is based on the Consent Decree and the Consent Decree is ambiguous, the rule of lenity requires us to find that it did not impose any duty on Ms. Alexcee. See State v. Small , 2011-2796 (La. 10/16/12), 100 So.3d 797, 811 (observing that the rule of lenity requires that "where there is any doubt as to the interpretation of a statute upon which a prosecution is based, [the] doubt must be resolved in favor of the accused"); accord State v. Petitto , 10-0581 (La. 3/15/11), 59 So.3d 1245, 1255 (Knoll, J., dissenting) (observing that "the majority opinion disregards the well-established rule of lenity in construing La. Rev. Stat. 42:1111E(1) and 42:1112B(1) as a basis for charging a violation of an express duty of which the public official had notice, i.e. , a malfeasance charge")

Scope of Hearing

The State also contends, in the alternative, that if the Duty was not imposed on Ms. Alexcee directly, it was nonetheless delegated to Ms. Alexcee under La. R.S. 14:134(B). When a prosecution for malfeasance is based on the delegation of a duty lawfully imposed on another, delegation is an essential element of the crime. See State v. Haltom , 462 So.2d 662 (La. App. 1st Cir. 1984). Thus, when the State has employed a short-form bill of information or indictment and the defendant has requested a bill of particulars, delegation must be alleged expressly in the bill of particulars. See State v. Smith , 14-0213, p. 13 (La. App. 4 Cir. 12/17/14), 156 So.3d 1227, 1234 (finding that because "the allegations against defendant cannot satisfy the essential elements of the offense of second degree murder ... the trial court properly granted the motion to quash the bill of indictment"). The failure to do so warrants quashal of the prosecution. See La. C.Cr.P. art. 485 (providing that "i]f it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured").

Here, the State failed to allege, in either the bill of information or any of the three bills of particulars, that the Duty was delegated by the OPSO to Ms. Alexcee. Nonetheless, the State relies on testimony-rendered in connection with Ms. Alexcee's motion to suppress statement-that, as an employee of the OPSO, Ms. Alexcee received extensive training regarding the Duty. As the State repeatedly acknowledges in brief, however, "[a]t a hearing on [a motion to quash], evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court." State v. Byrd , 96-2302, p. 18 (La. 3/13/98), 708 So.2d 401, 411 (observing that "[i]n considering a motion to quash, a court must accept as true the facts contained in the bills of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings , whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits") (emphasis added). Thus, the testimony relied on by the State was outside the scope of the hearing on the motion to quash; and the State's failure to allege the essential element of delegation constitutes a defect in the bill of information.

Delegation

Ordinarily, when there is a defect in the bill of information that the State has not been afforded an opportunity to cure, we would vacate the judgment of the district court and remand to allow the State to cure the defect. See State v. Estem , 18-0560 (La. App. 4 Cir. 9/26/18), 2018 WL 4623176 (unpub. ). In this case, however, the evidence adduced at the hearing on the motion to suppress statement-and here relied on by the State in opposition to the motion to quash-demonstrates that the State cannot cure the defect. Thus, to vacate and remand would be "a vain and useless act," which the law does not require. State v. Hageman , 123 La. 802, 813, 49 So. 530, 534 (1909) ; see also La. C.Cr.P. art. 921 (providing that "[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused").

The duty the State claims to have been delegated-expressly and unambiguously imposed by the Consent Decree on the OPSO-is an institutional duty "to ensure that correctional officers conduct appropriate [security] rounds ... at least once during every 15-minute period of special management prisoners." While such an institutional duty may be delegable to a person holding a position of supervisory authority over other employees, the testimony at the hearing failed to establish that this institutional duty was, in fact, delegated by the OPSO to Ms. Alexcee.

In any event, the testimony reflects that the duty the State actually claims Ms. Alexcee failed to perform is not the duty "to ensure that correctional officers conduct appropriate [security] rounds ... at least once during every 15-minute period of special management prisoners." Instead, the the State claims Ms. Alexcee failed to perform a different duty-the individual duty of correctional officers (like Ms. Alexcee) to actually conduct security rounds. While such a duty may exist as a matter of OPSO policy-on which the State does not rely-it is not expressly set forth in the the Consent Decree. Thus, the OPSO could not have delegated this non-existent duty to Ms. Alexcee.

Finally, although it is possible to construe the institutional duty set forth in the Consent Decree broadly enough to embrace an individual duty of correctional officers to conduct security rounds, such a broad construction is foreclosed by the rule of lenity. State v. Ritchie , 590 So.2d 1139, 1149 (La. 1991) (on reh'g ) (Dec. 12, 1991) (observing that "[t]he principle of lenity directs that a court construe a criminal statute in favor of the most narrow application when there are serious doubts concerning a meaning of a term"). Thus, even if the State were allowed to amend its bill of particulars, the State would not be able to allege facts sufficient to establish the essential element of delegation. Thus, vacating and remanding for amendment of the bill of particulars would be improper. See State v. Legendre , 362 So.2d 570, 571 (La. 1978) (observing that "[i]t will not do to base an indictment for a serious offense, as in this case, upon an allegation of fact which cannot conceivably satisfy an essential element of the crime, and compel the accused to withstand the rigors of a jury trial with no expectation that a conviction can be supported by such an allegation").

In sum, I would find the language of the Consent Decree relied on by the State is ambiguous and that the rule of lenity thus requires a finding that the Consent Decree did not impose the Duty on Ms. Alexcee personally. The State failed to allege in any of its bills of particulars that OPSO delegated the Duty to Ms. Alexcee-here, an essential element of the crime of malfeasance. Vacating the district court's judgment and remanding to allow the State to amend its bill of particulars would be improper because the State can allege no set of facts sufficient to establish that OPSO delegated any duty to Ms. Alexcee. Accordingly, I concur.

      The State has abandoned these grounds as they were only obliquely referenced at the hearing and are not briefed or relied upon on appeal. See Uniform Rule, Courts of Appeal, Rule 2-12.4(B)(4).

      The Consent Decree was entered into to correct the violations of federal rights at OPP as alleged by the prisoners and the United States Department of Justice.

      The Consent Decree further defines "special management units" as those housing units designated for offenders under the age of 17, in protective custody, on suicide prevention or in administrative or disciplinary segregation.

      In Passman , the Louisiana Supreme Court pretermitted the issue of whether the violation of administrative regulations could serve as the basis for a charge of malfeasance. 391 So.2d at 1144. In Perez , Justice Lemmon dissented from the majority's holding that the Oath of Office provision in La. Const. Art. X, Sec. 30 could also act as an affirmative duty. 464 So.2d at 746 (Lemmon, J., dissenting). "The [Passman ] court held that the defendant's misconduct did not constitute the crime of malfeasance if no statute delineated the affirmative duty that defendant was charged with failing to perform. By adopting this narrow 'express legislative requirement' approach, the court obviously rejected the idea that the Legislature intended to adopt an open-ended offense covering general derelictions of duty." Id . Justice Lemmon concluded that the issue is "whether the bill of information charges conduct that involves the failure to perform a specific duty expressly defined by the Legislature." Id . In Petitto , the majority of the Court affirmatively cited Justice Lemmon's appreciation of the jurisprudence defining "malfeasance in office as the intentional failure to perform a specific duty expressly defined by the legislature ." 2010-0581, p. 8, 59 So.3d at 1251 (emphasis in original). However, the Court slightly diverged from Justice Lemmon's rational by opining that "[a]lthough criminal statutes are subject to strict construction under the rule of lenity, the rule is not to be applied with such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which is to ascertain and enforce the true meaning and intent of the statute."Id ., 2010-0581, p. 7, 59 So.3d at 1250 (citing State v. Shaw , 2006-2467, p. 14 (La. 11/27/07), 969 So.2d 1233, 1242 ). The Louisiana Supreme Court still abides by its holding in Petitto . See, e.g. , State v. Thompson, 2015-0886, p. 43 (La. 9/18/17), 233 So.3d 529, 556. However, the door left open in Passman regarding the ability of administrative regulations or potentially other "provisions of law" to meet the affirmative duty requirement necessary for malfeasance is presumably still open to this day.

      As previously noted Justice Lemmon's appreciation of the holding in Passman was affirmatively cited by the majority of the Louisiana Supreme Court in Petitto .

      The State contends, essentially, that the rule of lenity should not apply in this case because Ms. Alexcee was aware of the Duty and that it applied to her. In support, the State contends that it "presented Lt. Catalanatto's testimony regarding the defendant's actions on October 17, 2016 and her training, submitted numerous documents pertaining to the defendant's training, and submitted the [Consent Judgment] to establish an affirmative duty." This argument fails for two reasons. First, as discussed elsewhere in this concurrence, none of that evidence was admissible at the hearing on the motion to quash. Second, none of that evidence is relevant; the law itself-without recourse to additional notice-must be unambiguously clear. See Perez , supra . (observing that "the duty must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges").

      See also State v. Schmolke , 12-0406, pp. 3-4 (La. App. 4 Cir. 1/16/13), 108 So.3d 296, 299, observing that:
      Essentially, the inquiry is whether any conceivable set of the facts as alleged in the bill of information together with those specified in the bill of particulars (when particulars have been provided) if "found credible by the trier of fact" can support a conviction. State v. Advanced Recycling, Inc. , 02-1889, pp. 9-10 (La. 4/14/04), 870 So.2d 984, 989. And support for a conviction, of course, requires that any reasonable trier of fact considering the evidence in the light most favorable to the prosecution could conclude that every element of the offense charged has been proven beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see also [State v. Lagarde, 95-1497, p. (La. App. 4 Cir. 4/3/96), 672 So.2d 1102, 1104 ].

      Indeed, it was not until the third bill of particulars that the State relied on the Consent Decree as the source of the duty lawfully imposed.

      To establish that this institutional duty was, in fact, delegated to Ms. Alexcee, the State relies on testimony that Ms. Alexcee, in connection with her employment at OPSO, received training regarding OPSO's duty "to ensure that correctional officers conduct appropriate [security] rounds ... at least once during every 15-minute period of special management prisoners." The allegation that Ms. Alexcee received training to ensure that the OPSO was compliant with its duty, however, does not establish that the duty was delegated to Ms. Alexcee. To the contrary, the allegation that Ms. Alexcee received such training demonstrates that OPSO retained , rather than delegated, the duty.


author: Judge Dale N. Atkins

text:
    Venitia JAMES v. ERNEST N. MORIAL NEW ORLEANS EXHIBITION HALL AUTHORITY (aka) The New Orleans Morial Convention Center, Hafele America Co., American Specialty Insurance Company and AIG Insurance
    NO. 2018-CA-0198
    Court of Appeal of Louisiana, Fourth Circuit.
    AFFIRMED DECEMBER 26, 2018
    Bernard Joseph Blair, II, ATTORNEY AT LAW, 210 Fairfax Place, New Orleans, LA 70131, COUNSEL FOR PLAINTIFF/APPELLANT
    Coleman T. Organ, ORGAN & ASSOCIATES, 909 Poydras Street, Suite 3000, New Orleans, LA 70112, Leigh Ann Schell, ADAMS AND REESE LLP, 701 Poydras Street, 4500 One Shell Square, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
   Judge Dale N. Atkins

In this slip and fall case, plaintiff/appellant, Venetia James ("James") appeals the district court's November 28, 2017, judgment granting a Motion for Summary Judgment in favor of Ernest N. Morial New Orleans Exhibition Hall Authority (aka) The New Orleans Morial Convention Center ("Convention Center"), and the Insurance Company of The State of Pennsylvania ("ICSOP") (collectively "Defendants"). For the reasons set forth below, we affirm.

On April 17, 2014, James filed suit against the Convention Center and AIG Insurance Company, alleging that she sustained injuries as a result of having a rug pulled out from under her feet when she was working near a display booth operated by Belenco Quartz Surfaces ("Belenco"). Belenco was an exhibitor at the Kitchen and Bath Industry Show being held at the Convention Center. At the time, James was working under contract with Century Security. She was assigned to a security detail for Neilsen Expositions, who in turn was renting space from the Convention Center for the Kitchen and Bath Industry Show. The Convention Center answered the lawsuit on June 4, 2014. ICSOP improperly named as AIG Insurance Company, answered on July 11, 2014.

Defendants filed a Motion for Summary Judgment on February 14, 2017, asserting that the Convention Center had no duty to protect James from injury nor did the Convention Center play any part in her alleged injuries. In support of the Defendants' Motion for Summary Judgment, Defendants attached the Affidavit of Robert Johnson ("Johnson"), the President and General Manager of the New Orleans Ernest N. Morial Convention Center. In his affidavit, Johnson stated that the Kitchen and Bath Industry Show was held at the Convention Center pursuant to a contract with Nielsen Expositions to rent space for the show. Individual contractors, including Belenco, at whose booth the alleged accident occurred, contracted for their space through Nielsen Expositions. Johnson reported that no Convention Center employees were involved in either erecting or dismantling the Belenco booth at the show. Also, he reported that individual exhibitors or their hired contractors were responsible for dismantling the booths; the Convention Center did not employ or supervise employees of the exhibitors, or exhibitor-appointed contractors, or any other entity involved in dismantling the booths. Johnson stated that an incident report regarding James' injury was prepared. A copy of the contract between Nielsen Expositions and the Convention Center and of the incident report was attached to Johnson's affidavit.

The contract contained an indemnity provision, wherein Nielsen Expositions agreed to indemnify and hold harmless the Convention Center and its officers, assigns, agents, employees, and contractors, in the event of injury or damage to any persons or property arising out of the Kitchen and Bath Industry Show.

The incident report noted that, on April 21, 2013 at approximately 3:15 p.m., a medical report was taken of Venita James, an employee for Century Security. According to the report, James had dislocated her right shoulder, was in need of further medical treatment, and was transported by emergency medical services to Touro Hospital. At the time the report was taken, James stated that, while walking inside the Kitchen and Bath Convention, she tripped at the Belenco Quartz Surfaces' booth # 1535.

A portion of James' deposition, taken January 15, 2015, was also attached in support of the Motion for Summary Judgment. Therein, James reported that, on the date in question, she saw exhibitors and contractors all tearing down booths "at the same time." As James was walking up to a booth, where she had to "squeeze through" the aisles, a person working on the booth pulled on the carpet where she was walking, causing her to lose her balance. James reported that sometimes the exhibitors will tear down their own booths and sometimes their hired contractors will dismantle them. She did not know the identity of the particular contractor who pulled on the rug but believed he was either with "Freeman Contractors" or "another contractor, I believe." She did not know who had hired the contractor. Although James stated, "We had people from the convention center working in there also," she did not identify anyone from the Convention Center and did not report that any Convention Center employee was tearing down booths or had been involved in tearing down the booth where the accident occurred in her deposition. James conceded that what caused her to fall was the pulling on the rug by the unknown contractor, whose actions caused her to lose her balance and fall down; she did not trip over anything.

James' Affidavit, executed on May 8, 2017, was submitted in response to the Motion for Summary Judgment. Therein, she stated that there were no warning signs or personnel reporting that demolition work was being conducted on the date of her injury. She also claimed that Convention Center Personnel were "working in and around the booth along with contract personnel," and therefore they [Convention Center personnel] "had to know what took place regarding demolition and construction" of the exhibition.

The Motion for Summary Judgment came for hearing on October 20, 2017. Defendants argued that the Convention Center did not have a legal duty to protect James from the incident as Convention Center employees played no part in the erection or dismantling of the Belenco booth; did not have any prior knowledge of the action alleged to have caused the injury; and were not responsible for the contractor who pulled the rug out from under James. Defendants further asserted that the accident happened in an instant, was not based on a defect in the premises, or on a condition that had existed for any length of time, that would require notice or warning. The district court granted summary judgment in favor of Defendants on October 20, 2017, issuing a written judgment on November 28, 2017.

James raises eight assignments of error on appeal, none of which are briefed or supported by citation to the record. As such, the issues are deemed abandoned. See Uniform Rules-Courts of Appeal, Rule 2-12.4 (B)(3) and (4). The Court addresses, however, the two related and ultimately dispositive issues raised by James, as follows: 1) whether a genuine issue of material fact existed to create a legal duty on behalf of the Convention Center to protect James from harm; and, 2) whether the trial court applied the correct standard for granting a motion for summary judgment.

Applicable Law/Standard of Review:

After an opportunity for adequate discovery, a motion for summary judgment is properly granted if the motion, memorandum, and supporting documents (pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions) show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 (A)(3) and (4). "The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La. C.C.P. art. 966 (D)(1). "The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id. When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of her pleading, but her response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. If she does not so respond, summary judgment, if appropriate, shall be rendered against her. La. C.C.P. art. 967 (B).

An appellate court's review of a summary judgment is de novo based on the evidence presented to the district court, using the same criteria used by the court in deciding whether summary judgment should be granted. Lewis v. Jazz Casino Co. , L.L.C. , 2017-0935, p. 5 (La. App. 4 Cir. 4/26/18), 245 So.3d 68, 72. "Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in the light of the substantive law applicable to" the case sub judice. Christakis v. Clipper Const., L.L.C. , 2012-1638, pp. 3-4 (La. App. 1 Cir. 4/26/13), 117 So.3d 168, 170 (citation omitted). The applicable substantive law in this case is set forth in La. C.C. art. 2315 (general negligence).

"The duty-risk analysis is the standard negligence analysis employed in determining whether to impose liability under La. C.C. art. 2315." Lemann v. Essen Lane Daiquiris, Inc. , 2005-1095, p. 7 (La. 3/10/06), 923 So.2d 627, 632-33. To succeed on her negligence claim, James must prove five elements: (1) defendant's duty of care to her; (2) the defendant's breach of duty; (3) defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) legal causation (scope of duty); and (5) damages caused by the breach of duty. Id. at p. 7, 923 So.2d at 633 ; Davis v. Witt , 2002-3102, 2002-3110, pp. 10-11 (La. 7/2/03), 851 So.2d 1119, 1127. If a plaintiff fails to prove any one of the five elements, a defendant cannot be held liable. Lemann, 2005-1095, at p. 8, 923 So.2d at 633 (citations omitted). See also Jones v. Stewart , 2016-0329, p. 9 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 390.

"A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty." Ponceti v. First Lake Properties, Inc. , 2011-2711, p. 2 (La. 7/2/12), 93 So.3d 1251, 1252 (citing Meany v. Meany , 1994-0251, p. 6 (La. 7/5/94), 639 So.2d 229, 233 ). "Whether a duty is owed is a question of law." Lemann , 2005-1095, at p. 8 (La. 3/10/06), 923 So.2d at 636.

Under Louisiana law, a landowner is not responsible for the negligence of contractors unless the work is inherently dangerous or the owner exercises control over the contractor's method of operation giving express or implied authorization to an unsafe practice. "Liability for the negligent and tortious acts of another does not flow simply because of a principal-agent or principal-mandatary relationship." Rowell v. Carter Mobile Homes, Inc. , 500 So.2d 748, 751 (La. 1987) (citation omitted). "Only when the relationship of the parties includes the principal's right to control physical details of the actor as to the manner of his performance, which is characteristic of the relation of master and servant, does the person in whose service the act is done become subject to liability for the physical tortious conduct of the actor." Id. ; Daniels v. Dauphine , 557 So.2d 1062, 1065 (La. App. 2 Cir. 1990).

"The same basic rule applies to independent contractors generally." Daniels , 557 So.2d at 1065. "[G]enerally, a principal is not liable for the offenses committed by an independent contractor while performing its contractual duties." Thompson v. Winn-Dixie Montgomery, Inc., 2015-0477, p. 12 (La. 10/14/15), 181 So.3d 656, 665. However, there are two exceptions to the general rule of non-liability: where the work performed by the contractor is ultra-hazardous; or if the principal reserves the right to supervise or control the work of the independent contractor. Id. "[T]he critical inquiry in determining whether an activity is ultra-hazardous or inherently dangerous is whether it can be made safe when it is performed in a proper and workmanlike manner. Buras v. Lirette , 1997-1255 (La. App. 4 Cir. 12/23/97), 704 So.2d 980, 983-84 (citation omitted).

Additionally, the owner or occupant of the property cannot permit a hazardous condition to exist on his property without giving adequate warning to those legally on the premises. McCauley v. Nicholas , 297 So.2d 914, 916 (La. App. 1 Cir. 1974). However, only conditions which would reasonably be expected to cause injury to one using ordinary care can be classified as hazardous or dangerous and give rise to the duty to warn. Id. In a case of this nature, James "must show the existence of a hazardous condition of which the owner had actual or constructive notice, and which caused the injury complained of." Miller v. Broadmoor Village, Inc. , 321 So.2d 925, 927 (La. App. 1 Cir. 1975).

James did not put forth any evidence to meet these requirements. First, James cannot identify the contractor, who the contractor was working for, or who hired the contract workers who were dismantling the Belenco booth where she sustained her injury. Although her affidavit differed slightly from her deposition testimony by indicating that "Convention Center personnel" were in the area during the dismantling of the booths, no evidence was presented that Convention Center employees or agents were involved in the dismantling of any of the exhibition booths, nor was there evidence that they specifically dismantled the Belenco booth. The mere presence in the area of Convention Center personnel is insufficient to place a legal duty on the Convention Center to protect James from the hasty or impulsive actions of an independent contractor who was working at the Convention Center. Furthermore, the Affidavit of Johnson, submitted by Defendants, stated that no Convention Center employees were involved in either erecting or dismantling the Belenco booth at the Kitchen and Bath Industry Show. This evidence was not refuted by James.

Nor was evidence offered to establish that James' injuries were the result of ultra-hazardous work activity or the existence of an inherently dangerous condition in the property, of which the Convention Center should have had notice or given warning. The act of a hired contractor pulling on a rug is an instantaneous one, not a hazardous condition that existed on the premises for any period of time. Further, the dismantling of exhibition booths, when properly done, can be performed in a safe manner; the activity is not ultra-hazardous in nature.

Additionally, the evidence offered by James failed to show that the Convention Center exercised control over the contractor's method of operation or its employees. The affidavit of Johnson was not contradicted and he confirmed that the Convention Center did not employ or supervise employees of the exhibitors, or exhibitor-appointed contractors, or any other entity involved in dismantling the booths. Without evidence that the Convention Center exercised control over the actions of the independent contractor, we find no grounds that would allow this Court to impose liability upon the Convention Center.

Considering the law, evidence, affidavits and testimony presented in the case sub judice , we find that the trial court correctly applied the standard set forth in La. C.C.P. art. 966. James did not offer evidence to refute Defendants' contention that the Convention Center did not have a duty to protect her from the harm caused by an independent contractor. James failed to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C. P. art. 966 (D)(1). Accordingly, we conclude that summary judgment in favor of Defendants was properly granted.

For the above reasons, the November 28, 2017, judgment of the district court granting summary judgment in favor of Defendants is affirmed.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULT.

      James raises the following assignments of error to support that a genuine issue of material fact exists: 1) the trial court erred in not finding that defendant was the owner/operator of the property where the plaintiff was injured and thus aware of and responsible for the property in question; 2) the trial court erred by not finding that the defendant did not have policies, procedures regarding the construction and or demolition of exhibition booths on its premises and if it did have policies, procedures and/or rules and regulations in place it failed to enforce them; 3) the trial court erred by not taking into consideration the fact that convention center personnel were at the booth in question and that they were regularly involved with contract personnel; 4) the trial court erred by failing to take into consideration that the defendant did not have nor did it require that warning signs be in place concerning the work being done in the exhibition booths; 5) the trial court erred when it failed to take into consideration that defendant had a duty to supervise and see that the booth was being taken down safely; 6) the trial court erred in failing to consider that defendant had no safety procedures whatsoever in place regarding the demolition of exhibit booths on it property; 7) the trial court erred in not considering whether the defendant negligently failed to see that the booth was being maintain in a safe condition, including keeping walkways, service ways, surfaces carpets, etc. clear, clean and in the proper working condition; and 8) the trial court erred by determining that the defendant was absolved from liability by contracting away its duty to keep and maintain the premises of the exhibit booth operator.

      No claim is made that insufficient discovery was allowed prior to the Motion for Summary Judgment being filed.