# Daniel Harris v. Boh Bros. Construction Co., LLC and Abc Insurance Company

> Louisiana Court of Appeal · May 26, 2021

URL: https://www.frixlaw.com/law-library/cases/11077500

## Case

- **Court:** Louisiana Court of Appeal
- **Decided:** May 26, 2021
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Judge Paula A. Brown
- **Judges:** Judge Roland L. Belsome; Judge Paula A. Brown; Judge Dale N. Atkins
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

DANIEL HARRIS * NO. 2020-CA-0248

VERSUS *
COURT OF APPEAL
BOH BROS. CONSTRUCTION *
CO., LLC AND ABC FOURTH CIRCUIT
INSURANCE COMPANY *
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2017-03303, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Paula A. Brown
******
ON REMAND FROM THE SUPREME COURT
(Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge Dale
N. Atkins)

BELSOME, J., CONCURS IN THE RESULT

Vanessa Motta
MOTTA LAW LLC
3632 Canal Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

Michael R.C. Riess
Michael D. Lane
RIESS LEMIEUX, LLC
1100 Poydras Street, Suite 1100
New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED; REMANDED
May 26, 2021
PAB
DNA

This is a personal injury suit on remand from the Louisiana Supreme Court.

FACTUAL BACKGROUND

The factual background in the case was set forth in Harris v. Boh Bros.

Constr. Co., LLC, 20-0248, 2020 WL 8455801, at *1 (La. App. 4 Cir. 12/16/20):

Boh Bros. entered into a contract with the United States
Government Army Corps of Engineers (the “Corps”) to work on the
Southeast Louisiana Urban Flood Control Project (the “Project”) in
the uptown area of New Orleans, Louisiana. The Project was initiated
by the Corps to address flooding in Southeast Louisiana. The Corps
provided the plans and specifications for the Project. The contract
provided that a concrete canal, which was comprised of a fifteen-feet
deep box culvert, be built underneath Louisiana Avenue that spanned
from Constance Street to South Claiborne Avenue. The walls of the
culvert were to be lined with a steel retaining wall with a minimum
height of three feet (36 inches) above the existing grade to give
protection against falls into the culvert. According to Boh Bros., it
installed the steel retaining wall at a height of 42 inches above the
existing grade, exceeding the minimum requirement of 3 feet. Boh
Bros. also contended that the specifications required a minimum of a
six-foot chain-linked fence be built around the neutral ground of
Louisiana Avenue.

On the evening of April 8, 2016, Mr. Harris, who is legally
blind, was in the New Orleans uptown area near Louisiana Avenue
visiting his stepdaughter. After staying a few hours at his
stepdaughter’s house, Mr. Harris walked to a near-by store, assisted
by a neighborhood friend. At some point, the friend left Mr. Harris at
the store. The store was in a location where Mr. Harris was not
required to cross the street to get to his stepdaughter’s home.

1
The next morning, on April 9, 2016, Boh Bros.’ personnel
found Mr. Harris inside the fence, lying at the bottom of a box culvert
located in the neutral ground on Louisiana Avenue between South
Robertson Street and Freret Street. To enter the construction site in
the area where Mr. Harris was found, Mr. Harris had to cross the
street from his location at the store.

Mr. Harris suffered injuries as a result of his fall. Mr. Harris
could not recall how he got into the culvert.1

PROCEDURAL HISTORY

Mr. Harris filed a petition and an amended petition for damages against Boh

Bros. Mr. Harris alleged Boh Bros. was negligent, asserting, in pertinent part:

“Plaintiff was walking home, and walked through the unsecured construction site

that was maintained by BOH BROS. CONSTRUCTION CO. L.L.C. when he fell

fifteen (15) to twenty (20) feet at the premises. The accident caused personal injury

to Plaintiff.” In response, Boh Bros. answered the petition and pled affirmative

defenses.2

1
During his deposition, Mr. Harris explained:

Q. So you don’t have any memory at all from the steps in front of your
[step]daughter’s house until a week later in the hospital when you started asking
what happened or why am I here?
A. Yes.
Q. Regarding the facts of this accident and the route you took, the sequence you
took, you have no memory of any of that; correct?
A. Yes.
Q. You can’t tell me any witnesses, you know, eyewitnesses to your accident or
anything; right?
A. See, I don’t know that part.
2
One of the affirmative defenses pled, which was later abandoned, was statutory contractor
immunity, pursuant to La. R.S. 9:2771, which provides:

No contractor, including but not limited to a residential building contractor
as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of
or defects in any work constructed, or under construction, by him if he
constructed, or is constructing, the work according to plans or specifications
furnished to him which he did not make or cause to be made and if the
destruction, deterioration, or defect was due to any fault or insufficiency of the
plans or specifications. This provision shall apply regardless of whether the
destruction, deterioration, or defect occurs or becomes evident prior to or after
delivery of the work to the owner or prior to or after acceptance of the work by

2
Following, Boh Bros. moved for summary judgment, and for the first time

asserted the affirmative defense of government contractor immunity, pursuant to

Boyle v. United Techs. Corp., 487 U.S. 500, 108 S.Ct. 2510 (1988) (hereinafter

referred to as “Boyle”).3 In addition, Boh Bros. alleged that Mr. Harris could not

prove the elements of breach of duty and causation as to his negligence claim.4

The district court granted the motion for summary judgment as to these issues and

provided written reasons.5 From this judgment, Mr. Harris appealed.

This Court, after a de novo review, concluded that there were genuine issues

of material facts remaining, which precluded summary judgment on both grounds.

Harris, 20-0248, 2020 WL 8455801, *1.6 Specifically, this Court determined that

Boh Bros. failed to meet the first prong of Boyle—that the government approved of

reasonably precise plans and specifications regarding the fencing surrounding the

the owner. The provisions of this Section shall not be subject to waiver by the
contractor.
3
In its motion for summary judgment, Boh Bros. abandoned the affirmative defense pursuant to
La. R.S. 9:2771, and instead asserted immunity as a government contractor, citing Boyle v.
United Tech. Corp., 487 U.S. 500, 108 S.Ct. 2510 (1988). Mr. Harris failed to object in the
district court to the arguments and evidence pertaining to this newly alleged affirmative defense.
Consequently, we will consider this issue. See also, DLJ of Louisiana # 1 v. Green Thumb, Inc.,
376 So.2d 121,122 n.9 (La. 1979)(wherein the Supreme Court held that when a plaintiff fails to
object to the introduction of evidence that bears on the affirmative defense, the pleadings have
been considered to have been enlarged to include the affirmative defense, and the court can act
as though the affirmative defense was pled).
4
In its motion for summary judgment, Boh Bros. also asserted Mr. Harris’ negligence was the
sole and proximate cause of his injuries. The district court denied this ground for summary
judgment. Boh Bros. did not seek review of that ruling.
5
In its writ application to the Supreme Court, Boh Bros. references the district court’s reasons
for judgment to support its arguments. It is well settled that the district court’s oral or written
reasons for judgment form no part of the judgment and that appellate courts review judgments,
not reasons for judgment. Wooley v. Lucksinger, 09-0571, 09-0584, 09-0585, 09-0586, p. 77
(La. 4/1/11), 61 So.3d 507, 572 (citation omitted). See also, Balthazar v. Hensley R. Lee
Contracting, Inc., 16-0921, 16-0922, 16-0923, 16-924, 16-0925, 16-0926, 16-0927, 16-0928, p.
10 (La. App. 4 Cir. 3/15/17), 214 So.3d 1032, 1041 (quoting S. Louisiana Ethanol L.L.C. v.
CHS-SLE Land, 14-0127, pp. 7-8 (La. App. 4 Cir. 2/4/15), 161 So.3d 83, 88)(“[A] trial court’s
reasoning for granting a summary judgment may be informative, but it is not determinative of the
issues to be resolved by the Court of Appeal.”).
6
Judge Belsome concurred in the result.

3
construction site. The record before this Court reflected that Boh Bros. did not

submit with its motion for summary judgment a copy of the plans and

specifications and/or contract approved by the Corps, regarding the fencing

surrounding the construction site. Id., 20-0248, 2020 WL 8455801, at *9. This

Court pretermitted discussion of the other two prongs of the Boyle test. This Court

also determined that Boh Bros. failed to show an absence of factual basis to

support Mr. Harris’ negligence claim, as there were genuine issues of material fact

remaining. Id., 20-0248, 2020 WL 8455801, at *11-12. As a result, this Court

reversed the district court’s January 10, 2020 judgment, and the matter was

remanded to the district court for further proceedings. Harris, 20-0248, 2020 WL

8455801, at *12.7 Boh Bros. sought review by the Supreme Court.

In its writ application to the Supreme Court, Boh Bros., for the first time,

asserted that Mr. Harris made two judicial confessions: (1) the first prong of the

Boyle test was met; and (2) the hazard was open and obvious. Boh Bros. urged

that, as a result, it was relieved of proving the first prong of the Boyle test, and it

owed no duty to Mr. Harris.

The Supreme Court, in a per curium, granted Boh Bros. relief, in part,

writing:

The court of appeal reversed, finding defendant failed to meet
the first requirement of Boyle–that the government approve
reasonably precise specifications. Specifically the court pointed to
defendant’s failure to submit a copy of the plans and specifications
approved by the Army Corps of Engineers. However, a filing
[Plaintiff’s Supplemental and Amending Motion in Opposition to
Defendant’s Motion for Summary Judgment] before the trial court

7
On appeal, Mr. Harris asserted that the district court erred in granting Boh Bros.’ request to
strike the video and exhibits 3 and 8, which were photographs attached to Mr. Harris’ opposition
to summary judgment, and this Court found no error in the district court’s ruling. See Harris,
20-0248, 2020 WL 8455801, *1.

4
indicated the “Plaintiff does not dispute the first prong of the
Affirmative Defense of Governmental Contractor Immunity applies.
Thus, there is no need to discuss that issue as clearly the government
approved the specifications.”

An admission by a party in a judicial proceeding is a judicial
confession and is full proof against the party making it. La. Civ. Code
art. 1853; C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003, (La.
12/3/03), 861 So.2d 156, 159. This admission “has the effect of
waiving evidence as to the subject of the admission–of withdrawing
the subject matter of the confession from issue.” Cichirillo v.
Avondale Indus., Inc., 2004-2894, (La. 11/29/05), 917 So.2d 424, 429
(citing Cheatham v. City of New Orleans, 378 So.2d 369, 375 (La.
1979)). Plaintiff’s admission removed the first requirement
of Boyle from issue. The court of appeal erred in denying defendant
immunity on this ground.

[W]e remand to the court of appeal to complete its review of
defendant’s government contractor immunity claim.

Harris v. Boh Bros. Constr. Co., 21-00084, pp. 2-3 (La. 3/16/21), 312 So.3d 565,

566-67 (emphasis added).8 Justice Griffin dissented, and Justice Genovese wrote

that he would deny the writ and allow the matter to go to trial, explaining in part:

I must say that I am intrigued and perplexed at defendant’s
“open hazard” defense. Defendant claims that a risk is not
unreasonable if it is open and obvious, citing jurisprudence in support
of its theory. Query: How can a completely blind person be subjected
to the “open and obvious” test?

I find the court of appeal decision was correct and would deny
this writ for two reasons: first, there are genuine issues of material fact
as to defendant’s entitlement to immunity; and second, a completely
blind man cannot be held to the “open and obvious” legal concept
because he is completely blind and can neither see nor discern an open
and obvious hazard.

8
It is undisputed that Boh Bros. did not submit with its motion for summary judgment the plans
and specifications and/or the contract containing the plans and specifications that were approved
by the Corps, regarding the fencing surrounding the construction site. In addition, neither the
parties on appeal, nor the district court in its judgment, discussed the judicial confessions by Mr.
Harris. To the contrary, Boh Bros.’ argued in its brief to this Court, referencing Cameron
Johnson’s affidavit and the federal district court case Guarisco v. Boh Bros. Constr. Co., LLC,
No. CV 18-7514, 2019 WL 1487505, at *5 (E.D. La. Apr. 4, 2019), that the district court
correctly ruled that Boh Bros., satisfied the first prong of the Boyle test. In addition, Boh Bros.
argued the hazard was open and obvious.

5
Harris, 21-00084, pp. 1-2, 312 So.3d at 567.

DISCUSSION

On remand, we address Mr. Harris’ assigned error that the district court

erred in granting summary judgment in favor of Boh Bros. For the reasons set

forth below, we conclude, after our de novo review, that there are genuine issues of

material fact remaining, which preclude summary judgment as a matter of law on

the issues of government contractor immunity and negligence.

Summary judgment law

In Filmore Parc Apartments II v. Foster, 18-0359, 2018 WL 5830453, at *6

(La. App. 4 Cir. 11/7/18)(footnote omitted), this Court explained, in pertinent part:

“A motion for summary judgment is a procedural device used
when there is no genuine issue of material fact for all or part of the
relief prayed for by the litigant.” Tate v. Touro Infirmary, 17-0714, p.
1 (La. App. 4 Cir. 2/21/18), ––– So.3d ––––, ––––, 2018 WL 992322,
writ denied, 18-0558 (La. 6/15/18), 245 So.3d 1027 (citing La. C.C.P.
art. 966(A)(1)). Generally, the burden of proof rests with the mover.
La. C.C.P. art. 966(D)(1). An appellate court’s standard of review for
a grant of a summary judgment is de novo, and it employs the same
criteria district courts consider when determining if a summary
judgment is proper. Madere v. Collins, 17-0723, p. 6 (La. App. 4 Cir.
3/28/18), 241 So.3d 1143, 1147 (citing Kennedy v. Sheriff of E. Baton
Rouge, 05-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686). In
Chanthasalo v. Deshotel, 17-0521, p. 5 (La. App. 4 Cir. 12/27/17),
234 So.3d 1103, 1107 (quoting Ducote v. Boleware, 15-0764, p. 6
(La. App. 4 Cir. 2/17/16), 216 So.3d 934, 939, writ denied, 16-0636
(La. 5/20/16), 191 So.3d 1071), this Court explained:

This [de novo] standard of review requires the appellate
court to look at the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, to determine if they show that no
genuine issue as to a material fact exists, and that the
mover is entitled to judgment as a matter of law. A fact is
material when its existence or nonexistence may be
essential to the plaintiff’s cause of action under the
applicable theory of recovery; a fact is material if it
potentially insures or precludes recovery, affects a
litigant’s ultimate success, or determines the outcome of
the legal dispute. A genuine issue is one as to which

6
reasonable persons could disagree; if reasonable persons
could reach only one conclusion, no need for trial on that
issue exists and summary judgment is appropriate. To
affirm a summary judgment, we must find reasonable
minds would inevitably conclude that the mover is
entitled to judgment as a matter of the applicable law on
the facts before the court.

On a motion for summary judgment, the burden of proof rests with the

mover. La. C.C.P. art. 966(D)(1). If the moving party will not bear the burden of

proof at trial, the moving party must point out that there is an 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). However, the moving party cannot simply file

a motion for summary judgment that lacks proper support and rely on the fact that

the opposing party will bear the burden of proof at trial. See Berard v. Home State

Cty. Mut. Ins. Co., 11-1372, p. 4 (La. App. 3 Cir. 5/9/12), 89 So.3d 470, 472. Once

the moving party has met its burden on summary judgment, the adverse party must

produce factual support sufficient to establish that he/she will be able to satisfy

his/her evidentiary burden of proof at trial. Davis v. A Bar & Grill with a Bite, Inc.,

19-1928, p. 2 (La. 3/16/20), 294 So.3d 1051, 1052.

Instructively, La. C.C.P. art. 966(A)(3) and (4) provide:

(3) After an opportunity for adequate discovery, a motion for
summary judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of
law.

(4) The only documents that may be filed in support of or in
opposition to the motion are pleadings, memoranda, affidavits,
depositions, answers to interrogatories, certified medical records,
written stipulations, and admissions. The court may permit documents
to be filed in any electronically stored format authorized by court
rules or approved by the clerk of the court.

7
Supporting affidavits “shall be made on personal knowledge, shall set forth such

facts as would be admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.” La. C.C.P. art. 967(A).

In Capital One Bank (USA), NA v. Sanches, 13-0003, p. 6 (La. App. 4 Cir.

6/12/13), 119 So.3d 870, 873-74, this Court explained in pertinent part:

“[I]t is insufficient for an affiant to merely declare that he has
“personal knowledge” of a certain fact. The affidavit must
affirmatively establish that the affiant is competent to testify to the
matters stated by a factual averment showing how he came by such
knowledge.” THH Properties Ltd. P’ship v. Hill, 41,038, p. 7 (La.
App. 2 Cir. 6/2/06), 930 So.2d 1214, 1219 (citing Express Pub. Co.,
Inc. v. Giani Inv. Co., Inc., 449 So.2d 145 (La. App. 4 Cir. 1984)).
“Personal knowledge means something which a witness actually saw
or heard, as distinguished from something a witness learned from
some other person or source.” Id. (citations omitted). Furthermore,
“‘personal knowledge’ encompasses only those facts which the affiant
saw, heard or perceived with his own senses.” Express Pub. Co., Inc.,
449 So.2d at 147 (citing Atkinson v. Allstate Ins. Co., 361 So.2d 32
(La. App. 3 Cir.1978)).

Mere conclusory allegations, improbable inferences and unsupported speculation

cannot support a summary judgment, even if contained in an affidavit. Sears v.

Home Depot, USA, Inc., 06-0201, p. 12 (La. App. 4 Cir. 10/18/06), 943 So.2d

1219, 1228 (citation omitted).

Evidence submitted by the parties

In support of its motion for summary judgment, Boh Bros. attached the

following:

1. Affidavit of Cameron Johnson (“Mr. Johnson”), project manager for
Boh Bros. (pertinent excerpts of his affidavit will be discussed infra.);

2. excerpt of the specifications and plans of the Project for the retaining
wall that surrounded the culvert;

3. photograph of the retaining wall;

4. photograph of the chain-linked fence;

8
5. deposition of Mr. Harris;

6. affidavit of Troy Miceli, the investigator hired by Boh Bros. to
investigate Mr. Harris’ accident;

7. deposition of Shirley Morgan, sister and caregiver of Mr. Harris; and

8. video of Mrs. Morgan and Mr. Harris recorded by Mr. Miceli,
depicting Mrs. Morgan speaking to a third party and stating that
someone pushed Mr. Harris into the culvert or he fell, “we don’t
know.”

In support of his opposition, Mr. Harris attached the following:

1. Excerpt of minutes labeled by Mr. Harris as “Corp[s] Administrative
Contracting Minutes of August 4, 2014” wherein fencing was
discussed: “Mr. Fogarty continued on with the agenda: Safety and
Security Fencing; 6 foot chain-link fence around work areas. Four
foot fencing will not prevent on lookers from passing over. Emphasis
was made for chain-link fencing on all work areas”;

2. excerpt of Boh Bros.’ responses to first set of interrogatories and
requests for production of documents, which will be discussed infra.

3. Boh Bros.’ response to second set of requests for admissions;
4. excerpt of an “Inspection Completion Report” prepared by Brett
Carbo, the safety project manager for Boh Bros., dated April 4, 2016,
which states under “List of issues,” “Is housekeeping being
maintained and kept up? . . . fence not closed”;

5. excerpt of an “Inspection Completion Report” prepared by Mr. Carbo,
dated April 6, 2016, which provided under daily safety log questions
“[i]s daily housekeeping being maintained and kept up?” and the
response marked is “Yes”; and

6. photograph marked as exhibit 5 with the caption “Brett Carbo
4/9/2016 9:56 AM - Louisiana Ave” depicting “Access point” into the
construction site through the fence.

With the applicable summary judgment law and evidence presented in support

and in opposition to Boh Bros.’ motion for summary judgment in mind, we turn to

Mr. Harris’ assigned error.

9
Government contractor immunity

Mr. Harris asserts the district court erred in granting Boh Bros.’ motion for

summary judgment, arguing Boh Bros. failed to prove the affirmative defense of

government contractor immunity.

The Boyle test

In Banks v. Par. of Jefferson, 12-215, p. 22 (La. App. 5 Cir. 1/30/13), 108

So.3d 1208, 1222, the appellate court addressed the factors—referred to as the

Boyle test—a defendant must prove to succeed in establishing government

contractor immunity:

The government contractor immunity defense provides that
contractors hired by the government cannot be held liable for
performing their contracts in conformity with specifications
established by the government. Hercules, Inc. v. United States, 516
U.S. 417, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996), and Boyle v. United
Tech. Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).
In order for a contractor to assert the government contractor defense,
three prongs must be met: (1) the government must have approved
reasonably precise specifications; (2) the work must have conformed
to the specifications; and (3) the contractor must have warned of any
dangers that were known to the contractor, but not the government.
The contractor is not required to warn of dangers which it should have
known, only dangers about which it had actual knowledge. Kerstetter
v. Pacific Scientific Company, 210 F.3d 431 (5th Cir. 2000).

However, the Boyle test only protects a government contractor

Trevino v. Gen. Dynamics Corp., 865 F.2d 1474,

1486 (5th Cir. 1989). The Trevino Court explained that “

10
Guarisco v. Boh Bros. Constr. Co., LLC

Boh Bros. points out that the federal district court in Guarisco v. Boh Bros.

Constr. Co., LLC, No. CV 18-7514, 2019 WL 1487505, at *5 (E.D. La. Apr. 4,

2019)(referred to as hereinafter “Guarisco”), found it was entitled to government

contractor immunity. In Guarisco, a plaintiff brought a tort action against Boh

Bros. in Orleans Parish Civil District Court. The plaintiff was involved in an

automobile accident at the intersection of Louisiana Avenue and Baronne Street in

New Orleans, where Boh Bros. was working on the same Project as in this case.

Boh Bros. asserted government (federal) contractor immunity and timely removed

the case to federal court under Title 28 U.S.C, “Federal Officer Removal

Jurisdiction.” The plaintiff alleged Boh Bros. was negligent when it “converted

Louisiana Avenue’s two river-bound lanes into a two-way street and negligently

placed traffic control signs on the roadbed at the intersection, thereby causing the

plaintiff’s accident.” Id., No. CV 18-7514, 2019 WL 1487505, at *1. At issue, was

whether Boh Bros. was entitled to removal to federal court, rather than the merits

of its claim of government contractor immunity. After reviewing the prongs of the

Boyle test, the federal district court concluded Boh Bros. established government

contractor immunity, thus, removal to federal court was proper. Id., No. CV 18-

7514, 2019 WL 1487505, at *6.

The plaintiff alleged that Boh Bros. failed to produce evidence to show that

the traffic control system, which was the alleged defective product feature at issue,

11
was at the direction of or mandated by the federal government, and its

.” Guarisco, No. CV 18-7514, 2019 WL 1487505, at *2. The Guarisco

court held that Boh Bros. met the first prong of the Boyle test, proving, with the

evidence submitted, that the plans and specifications from the Corps—governing

traffic control and coordination—were reasonably precise and approved by the

Corps, opining:

In the instant case, the affidavit of Defendant’s Project
Manager, Cameron Johnson, indicates that “[t]he plans and
specifications administered by [the Corps] were reasonably precise.”
(Rec. Doc. 16-1 at 2). This attestation is supported by evidence that
Defendant’s contract with the Corps contains 710 pages of detailed
specifications prepared by the Corps’ selected design engineering
firm, as well as 430 pages of detailed drawings or plans also prepared
by the designer. (Rec. Doc. 9 at 13). Additionally, Defendant
produced the portion of its contract with the Corps governing traffic
control and coordination. (See Rec. Doc. 9-1). This document outlines
detailed specifications pertaining to traffic control and coordination,
submittals, the Traffic Control Device Plan, and road closure, as well
as the use of barricades, danger, warning, and detour signs.

Id., No. CV 18-7514, 2019 WL 1487505, at *6.

As to the second prong of the Boyle test, requiring a government contractor

to have performed the work in accordance with the approved specifications, the

Guarisco court found that “[c]onformity may be satisfied by proof that ‘the

government supervised and controlled the implementation of [the government

approved reasonably precise] specifications,’” Id., No. CV 18-7514, 2019 WL

1487505, at *6 (quoting Levy v. Phillips and Jordan, Inc., No. 08-5065, 2009 WL

2922057, at *2 (E.D. La. Sept. 9, 2009)). In Guarisco, Boh Bros. submitted Mr.

12
Johnson’s affidavit which indicated that the Corps engaged in extensive oversight

of the Project by maintaining a daily presence onsite and providing a Quality

Assurance representative to inspect Boh Bros.’ work each day to ensure

conformity with the plans, specifications, and Corps-approved submittals. The

court explained that “[t]hese monitoring efforts not only lessen the concern that

Defendant used its own discretion in lieu of the Corps’ reasonably precise

specifications, but also constitute persuasive evidence of conformity . . . .” Id. Mr.

Johnson also attested that the Corps “‘expressly approved all traffic-related

submittals and modifications to the [Traffic Control Device Plan] implemented by

[Defendant] on the Project.’” No. CV 18-7514, 2019 WL 1487505, at *22.

As to the third prong of Boyle, the Guarisco court found it was met. The

court noted that Boh Bros. emphasized “that the Corps’ knowledge of the risks is

bolstered by the fact that the Louisiana Avenue Project was the last of seven SELA

projects that the Corps had completed in Uptown New Orleans.” Also, Mr.

Johnson attested that “[Boh Bros.] did not know of any dangers relating to the

traffic control and coordination plans, specifications, or [Corps-approved]

submittals that were not known to [the Corps].” Id., No. CV 18-7514, 2019 WL

1487505, at *23.

Unlike the federal district court in Guarisco, this Court does not have the

benefit of reviewing the plans and specifications of the alleged defective product

feature—the fence surrounding the construction site—in reviewing prongs two and

three of the Boyle test. In addition, while Guarisco may be instructive, it is not

binding on this Court. Furthermore, as noted in Harris, 2020 WL 8455801, at *1,

each case has to be independently evaluated under the Boyle test to determine if the

contractor is entitled to immunity.

13
Application of the Boyle test to the case sub judice

As to the first prong, the Supreme Court found that this factor was judicially

confessed by Mr. Harris; thus, it was satisfied.

As to the second prong, Mr. Harris argued that Boh Bros. did not follow the

plans and specifications of the contract regarding the fencing surrounding the

construction site. Specifically, Mr. Harris asserted that Boh Bros. “failed to secure

the temporary fence with metal ties and failed to close and secure the site when

work was finished at the end of the day by fastening together by insertion a metal

rod at the foot of each fence panel.”

As the movers for the summary judgment, Boh Bros. had to prove the

alleged defective product feature—the fence surrounding the construction site—

conformed to the plans and specifications given to it by the government.9 In

support of this factor, Boh Bros. submitted the affidavit of Mr. Johnson. At the

beginning of the affidavit, Mr. Johnson stated that “I have personal knowledge of

the matters set forth in this Affidavit and [I] am competent to testify to the matters

stated herein.” He proceeded to attest that the “Contract includes detailed

specifications regarding . . . the installation of a safety fence around the

construction area.” He continued, “the entire neutral ground on Louisiana Ave.

was cordoned off as a restricted construction area and surrounded by a zinc coated,

chain-link safety fence that was a minimum of six feet tall, as required by the

Project plans and specifications (footnote omitted).” Mr. Johnson described the

fencing as follows:

9
Based on the facts and theory of the case that has evolved with discovery and asserted by Mr.
Harris—fault pursuant to La. C.C. art. 2315— a question arises whether this case involves an
alleged “defective product feature.” However, since that is the basis of the summary judgment
and the remand by the Supreme Court, we address Boh Bros.’ claim of government contractor
immunity.

14
21. Each panel of the chain-link fence was secured to the adjacent
panels with metal ties that tightly bound each panel of the chain-link
fence to one another (footnote omitted).

22. In addition, each fence panel was additionally fastened to the
adjacent panels by insertion of the hollow metal end poles over
vertical metal rods on the panel stands, which tightly secured the
fence panels together.

Mr. Johnson explained that “[w]arning signs stating, ‘DANGER,

CONSTRUCTION AREA, KEEP OUT,’ were affixed to the chain-link fence

every 100 feet, as required by the Project plans and specifications (footnote

omitted).” Mr. Johnson continued stating, “Boh Bros. fully complied with the

plans, specifications, and submittals (which were substantively reviewed and

approved by [Corps]), including but not limited to those plans, specifications, and

submittals relating to . . . the installation and maintenance of a chain-link safety

fence surround the construction area . . . .”

In addition, Mr. Johnson attested:

In its opposition to the summary judgment, Mr. Harris submitted excerpts of

Boh Bros.’ response to interrogatories:

15
INTERROGATORY NO. 3:
Please identify the persons known to you that were supposed to
make sure that the work site to which Boh Bros[.] Construction was
doing work on Louisiana Avenue was secured, locked and/or closed
where Mr. Harris claims to have fallen.

RESPONSE TO INTERROGATORY NO. 3:
In addition to the individuals identified in the preceding
response,[10] the U.S. Army Corps of Engineers (“Corps”) retained
Quality Assurance (“QA”) representatives who were on the site each
day to inspect, oversee, and document the work. Lloyd Bradshaw and
Perry Damico served as the Corps’ QA [Quality Assurance]
representatives on the Project in April 2016.

INTERROGATORY NO. 4:
Please state in detail Boh Bros[.] Construction policies and/or
procedures for its employees to follow when securing the work site on
Louisiana Avenue.

RESPONSE TO INTERROGATORY NO. 4;
It is each foreman’s responsibility to close and secure their
work areas on the Project each day. Although not mandated by the
contract, closing and securing the site when work is finished at a
location or for the day typically includes wire tying the fence posts
ends with metal wire. Fence panels are also fastened together by
insertion of a metal rod at the foot of each fence panel into the
adjoining panel. Boh Bros[.], also frequently conducted a Job Safety
Analysis (“JSA”) to ensure all safety protocols were adhered to,
which identified any potential hazards and an action plan to remedy
them. In addition, the site was regularly inspected by Boh Bros[.], and
Corps personnel for compliance with all Project requirements,
including safety and security. Boh Bros[.], complied with the Project’s
plans and specifications at all times, including prior to the incident on
April 9, 2016 . . . . (emphasis added).

Moreover, Mr. Harris submitted two inspection reports from Bret Carbo. One

dated April 4, 2016, stated that “fence not closed” and one dated April 6, 2016,

stated “when excavation not in use, we should put some type of barrier to stop

people from walking into excavation.”

After reviewing the evidence filed in support and in opposition to the

summary judgment, we conclude there are genuine issues of material fact as to

10
This response is not in the appellate record.

16
whether the fencing conformed to the Corps’ plans and specifications. In its brief

to this Court, Boh Bros. wrote, referencing the above admission in interrogatory

no. 4: “Appellant cites nothing in the Contract or the Project specifications that

mandated or required Boh Bros., to use metal ties, which were utilized by Boh

Bros, as an additional safety measure beyond Boh Bros.’ contractual requirement.”

In addition, Mr. Johnson attested that, near where Mr. Harris was found in the

culvert, “the metal ties which secured one panel of the chain-link fence to the

adjacent panel had been removed and the panel lifted off the stand, creating an

opening in the fence that was just wide enough for a person to squeeze through

(footnote omitted).” Mr. Johnson continued, “[w]

he did not attest that he personally inspected the site or was present

when the site was inspected on April 8, 2016. Moreover, despite Boh Bros.

identifying, in its response to Mr. Harris’ interrogatories, the persons at the

construction site that were responsible to make sure the fencing was secured,

locked and/or closed, affidavits of these individuals were not submitted by Boh

Bros. No inspection report from the Corps or Mr. Carbo from April 8, 2016, was

submitted by either party. No video recording, allegedly taken in the morning and

evening of April 8, 2016, depicting that the Project was secure, was submitted,

although it was referenced at the hearing on the motion for summary judgment by

counsel for Boh Bros. This evidence, along with the Court’s inability to review the

plans and specifications for the fence, raises genuine issues of material fact as to

second prong of the Boyle test. As Boh Bros. failed to prove it was entitled to

17
summary judgment as to this prong of the Boyle test, the burden did not shift to

Mr. Harris.

The third prong of the Boyle test is whether the contractor warned the

government about the dangers of the alleged defective equipment that were known

to the contractor but not to the government. Counsel for Mr. Harris argued it was

an “open and obvious hazard, Boh Bros. knew of the hazard and failed to warn the

government of the hazard.” Counsel for Mr. Harris asserted that the inspection

reports showed that Boh Bros. “knew and had actual knowledge that their

temporary fencing was not being closed and was a continuous issue for pedestrians

such as Plaintiff.” Counsel for Mr. Harris continued, “there is no question that an

open and obvious hazard existed and [Boh Bros.] failed to follow the specifications

of the [Corps] by securing the fence panels with metal ties.”

On the other hand, Boh Bros. asserted:

As set forth in the Affidavit of Boh Bros.’ Project Manager,
Boh Bros., did not know of any dangers relating to the plans,
specifications, or [Corps]-approved submittals that were not known to
[Corps].[11]

Moreover, as confirmed by the Guarisco court, the government
knew of the risks associated with the Project construction activities,
including the risks associated with implementation of the traffic
control measures necessitated by the Project. Experience was on [the
Corps’] side, as this Project is the last of seven SELA projects that
[the Corps] completed in the Uptown New Orleans area. Based on the
government’s knowledge of the risks. Boh Bros., has satisfied the
final prong of the government contractor defense. (internal footnotes
omitted).

However, the alleged defective product feature in Guarisco was the traffic control

system, and what the Corps knew in Guarisco is not conclusive as to its knowledge

11
Mr. Johnson attested that “Boh Bros. does not know of any dangers relating to the Project
plans and specifications or the [Corps]-approved submittals that are not known to the [Corps].”

18
in the present case. In addition, having found that genuine issues of fact remain as

to the second prong, the third prong cannot be resolved.

In its motion for summary judgment, Boh Bros. asserted, and the district

court agreed, Mr. Harris could not show it breached any duty owed to Mr. Harris,

and Mr. Harris could not sustain his burden of proof as to causation.13 As noted

supra, in its writ to the Supreme Court, Boh Bros. asserted that Mr. Harris

judicially confessed that the hazard was open and obvious.

Mr. Harris grounded his case on the assertion that Boh Bros. breached a duty

of care owed to him, by failing to secure the fencing surrounding the construction

site. The theory of negligence asserted by Mr. Harris, which Boh Bros. agrees,14 is

that of fault derived from La. C.C. art. 2315(A) which provides that “[e]very act

whatever of man that causes damage to another obliges him by whose fault it

12
We note the Supreme Court did not instruct this Court to revisit the negligence claim;
however, in light of Boh Bros.’ assertion that Mr. Harris judicially confessed it was an open and
obvious hazard, we address this issue.
13
In his brief to this Court, Mr. Harris does not address the finding by the district court that Mr.
Harris failed to prove a breach of duty by Boh Bros. and causation. Because the district court
based the granting of the summary judgment on two separate grounds—government contractor
immunity and negligence—both must be addressed. As this Court is reviewing the matter de
novo, we ask the same questions as the trial court in determining whether summary judgment is
appropriate, i.e., “whether any genuine issues of material fact exist, and whether the mover is
entitled to judgment as matter of law.” Cressionnie v. Liberty Mut. Ins. Co., 98-0534, p. 3 (La.
App. 4 Cir. 4/8/98), 711 So.2d 364, 366 (citing La. C.C.P. art. 966(B)).
14
In its brief to this Court, Boh Bros. wrote, “Appellant’s lawsuit is based in negligence under
Louisiana Civil Code Article 2315.”

19
happened to repair it.” In Chanthasalo v. Deshotel, 17-0521, p. 6 (La. App. 4 Cir.

12/27/17), 234 So.3d 1103, 1107-08, this Court explained:

Established Louisiana jurisprudence employs a duty-risk
analysis to resolve negligence claims under La. C.C. art. 2315.
Roberts v. Benoit, 605 So.2d 1032, 1041 (La. 1991). To prevail under
a negligence claim, the plaintiff must prove five elements:

(1) the defendant had a duty to conform his conduct to a
specific standard (the duty element);

(2) the defendant failed to conform his conduct to the
appropriate standard (the breach of duty element);

(3) the defendant’s substandard conduct was a cause-in-
fact of the plaintiff’s injuries (the cause-in-fact
element);

(4) the defendant’s substandard conduct was a legal cause
of the plaintiff’s injuries (the scope of liability or
scope of protection element); and

(5) actual damages (the damages element)[.]

Roberts, 605 So.2d at 1051.

Duty-Risk analysis

At trial, Mr. Harris would have the burden to prove

The first element, the duty element, “is a question of law; the inquiry is

whether the plaintiff has any law (statutory, jurisprudential, or arising from general

principles of fault) to support the claim that the defendant owed him a duty.”

Faulkner v. The McCarty Corp., 02-1337, p. 2 (La. App. 4 Cir. 6/11/03), 853 So.2d

24, 27 (quoting Perkins v. Entergy Corp., 98-2081, p. 22 (La. App. 1 Cir.

12/28/99), 756 So.2d 388, 403). In addition, a duty may arise from the nature of

20
the undertaking, or by contract. 2 La. Prac. Pers. Inj. § 12:25.15 Mr. Johnson

attested “the entire neutral ground on Louisiana Ave. was cordoned off as a

restricted construction area and surrounded by a zinc coated, chain-link safety

fence that was a minimum of six feet tall, as required by the Project plans and

specifications (footnote omitted).” Consequently, we find Boh Bros. had a duty to

Mr. Harris, a third party, to maintain a secure fence surrounding the construction

site.

The second element, the inquiry is whether there was a breach of the duty,

which is a question of fact or a mixed question of law and fact. Magri v. Jazz

Casino Co., L.L.C., 19-0064, p. 7 (La. App. 4 Cir. 6/26/19), 275 So.3d 352,

358, writ denied, 19-01197 (La. 10/15/19), 280 So.3d 611. Making sure the

fencing was secured, and that there were no openings in the fencing surrounding

the construction site was a precaution a reasonable person would take.16 Mr.

Johnson attested in his affidavit that, after Boh Bros.’ personnel found Mr. Harris

in the culvert, they inspected the area to determine the possible entry point by Mr.

Harris. Mr. Johnson continued:

Near the location where Plaintiff was found, Boh Bros. discovered a
point of entry in the safety fence located on the downtown side of
Louisiana Ave. Specifically, the metal ties of one of the panels of the
chain-linked fence had been removed, and the panel lifted to create an
opening wide enough for a person to squeeze through the fence.

15
Embodied in the defense of government contractor immunity is the premise that a contractor
owes third parties a duty to exercise ordinary care and refrain from creating hazardous conditions
in the fulfillment of its contractual obligations. Cf, Banks, 12-215, p. 16, 108 So.3d at 1218
(referencing statutory contractor immunity of La. R.S. 9:2771).
16
Because Mr. Harris’ theory of negligence is based in fault, pursuant to La. C.C. art. 2315, not
premises liability under La. C.C. arts. 2317 and 2317.1, we reject Boh Bros.’ insistence that the
risk-utility balance test is applicable in this case.

21
Despite Boh Bros.’ personnel finding the opening in the fence near where Mr.

Harris was found, Mr. Johnson attested that on the day of the accident, the safety

fence was properly maintained and closed, as discussed supra. However, Mr.

Johnson did not attest that he conducted this inspection, or he was present for the

inspection. Boh Bros. failed to offer any evidence in support of its summary

judgment in the form of personal knowledge that on April 8, 2016, the fence was

properly maintained and secured. Thus, Boh Bros. failed to establish an absence of

factual support for this element.

Turning to Boh Bros.’ assertion that the complained of hazard was open and

obvious to all, we note that “a defendant generally does not have a duty to protect

against an open and obvious hazard.” Jones v. Stewart, 16-0329, p. 13 (La. App. 4

Cir. 10/5/16), 203 So.3d 384, 392 (quoting Scarberry vs. Entergy Corp, 13-0214,

p. 10, (La. App. 4 Cir. 2/19/14), 136 So.3d 194, 204). “In order for a hazard to be

considered open and obvious, the Supreme Court has consistently stated the hazard

should be one that is open and obvious to all, i.e., everyone who may potentially

encounter it.” Id.

Boh Bros. asserted, in its writ application to the Supreme Court, that Mr.

Harris made a judicial confession that the hazard was open and obvious to all;17

thus, conceding Boh Bros. owed no duty to Mr. Harris. We find Boh Bros.’

argument disingenuous. Mr. Harris’ reference to the “open and obvious to all” was

in the context of the third prong of the Boyle test—that it was an “open and

17
We note in its answer, Boh Bros. asserted Mr. Harris’ claims were barred by his own
negligence in that he failed to see “what should reasonably be seen,” and in its motion for
summary judgment, and on appeal, Boh Bros. argued that the hazard was open and obvious to
the general public.

22
obvious hazard, Boh Bros. knew of the hazard and failed to warn the government

of the hazard (emphasis added).”

Notwithstanding Boh Bros.’ assertion that counsel for Mr. Harris was

arguing that the hazard was open and obvious to all, we find the open and obvious

to all defense would be inapplicable on two grounds. First, as noted supra, this

case involves a negligence action under La. C.C. art. 2315, not premises liability.

Scarberry, 136 So.3d 194, is instructive on this issue. In Scarberry, an out of state

electrical lineman, who was electrocuted by a downed power line, filed suit for

personal injury damages against Entergy. The trial court found in favor of the

lineman. On appeal, as one of the assigned errors, Entergy argued that a de

novo review of the personal injury case was mandated, because the trial judge

refused to read its proffered jury instructions regarding hazards that are open and

obvious. This Court found the claim lacked merit, writing in pertinent part:

We do not find that the trial judge’s refusal in this case to
instruct the jury as to the open and obvious to all defense was
erroneous because this specific inquiry was inapplicable to the issues
to be resolved by the jury. The record shows that Mr. Scarberry
grounded his case to the jury on the assertion that Entergy’s
employees breached duties of care owed to him . . . . Indeed, the trial
judge did not read instructions concerning strict liability, liability for
hazardous things under one’s control, or the duty to warn of hazardous
things. Moreover, the jury was not asked via interrogatories to
determine whether the electrical line that struck Mr. Scarberry was
defective and/or created an unreasonable risk of harm. Rather, the jury
was asked to determine whether Entergy was negligent and whether
such negligence was a cause-in-fact of Mr. Scarberry’s injuries . . . .
In this case, the trial judge’s refusal to instruct the jury as to
Louisiana’s open and obvious to all inquiry was correct because it was
inapplicable to the issues to be resolved by the jury.

Id., 13-0214, p. 13, 136 So.3d at 205-06 (footnote omitted). As in Scarberry,

based on the facts and theory of the case that have evolved and were asserted by

Mr. Harris, the issue is not whether the fencing was defective and/or created an

23
unreasonable risk of harm, but rather if Boh Bros. breached its duty of care by

failing to secure the fencing surrounding the construction site. Second, even

assuming the open and obvious defense to all should be applied in this case, we

conclude this defense is not germane, because this case involves “case-specific

factual issues.” This Court in Jones, citing Jimenez v. Omni Royal Orleans Hotel,

10-1647, pp. 11-12 (La. App. 4 Cir. 5/18/11), 66 So.3d 528, 534-35,18 explained

that “despite the presence of an open and obvious condition, the jurisprudence has

recognized that ‘case-specific factual issues’ may preclude summary judgment.’”

Jones, 16-0329, p. 23, 203 So.3d at 398. As noted by Justice Genovese in his

dissent in Harris, 21-00084, 2021 WL 973037, *1, “Defendant claims that a risk is

not unreasonable if it is open and obvious . . . Query: How can a completely blind

person be subjected to the “open and obvious” test?” Justice Genovese continued:

“[A] completely blind man cannot be held to the ‘open and obvious’ legal concept

because he is completely blind and can neither see nor discern an open and obvious

hazard.” Id. We agree, and conclude that this case falls into the category involving

“case-specific factual issues,” precluding summary judgment as a matter of law as

to the open and obvious to all defense.

The third element, causation or the cause-in-fact element, is a question of

fact, subject to the manifest error standard of review. Hammond v. Rahsaana, 13-

1202, p. 7 (La. App. 4 Cir. 2/26/14), 135 So.3d 1207, 1211 (citation omitted). In

determining causation, courts look to “whether the conduct was a substantial factor

leading to the accident, i.e., whether it had a direct relationship to the accident . . .

18
In Jimenez, 10-1647, p. 11, 66 So.3d at 534, this Court explained that “[t]here are other
decisions which suggest that simply because a condition may be open and obvious it does not
necessarily result in a consequential finding that the defendant did not create an unreasonable
risk of harm.”

24
.” Miller v. Fields, 570 So.2d 39, 42 (La. App. 4th Cir. 1990)(citation omitted). As

to this element, in its brief to this Court, Boh Bros. asserts, in pertinent part:

Appellant, in fact, has provided no evidence of anything that Boh
Bros[.], did wrong to cause or contribute to the accident. Boh Bros.,
on the other hand, has submitted the Sworn Affidavit of its Project
Manager, Cameron Johnson, confirming that Boh Bros[.], properly
closed and secured the chain-link safety fence before leaving the
construction site on Friday, April 8, 2016. It is incumbent upon
Appellant to come forward with evidence showing that Boh Bros[.],
was the legal cause of Appellant’s injuries.

Despite its assertion that the fence was secured before personnel left the site on

April 8, 2016, Boh Bros. failed to present evidence to show personal knowledge

that the fence was properly maintained and secured on April 8, 2016. As a result,

we conclude Boh Bros. failed to prove an absence of factual support for the

element of causation.19

The fourth element, the legal causation or scope of duty inquiry, “assumes a

duty exists and questions whether the injury the plaintiff suffered is one of the risks

encompassed by the rule of law that imposed the duty.” Chaisson v. Avondale

Indus., Inc., 05-1511, p. 24 (La. App. 4 Cir. 12/20/06), 947 So.2d 171, 188

(quoting Roberts v. Benoit, 605 So.2d 1032, 1044 (La. 1991)). It is a mixed

question of law and fact. Chatman v. S. Univ. at New Orleans, 15-1179, p. 11 (La.

App. 4 Cir. 7/6/16), 197 So.3d 366, 375 (citation omitted). In its brief to this

Court, Boh Bros. argues that “the scope of the duty owed by Boh Bros, to the

public did not encompass the risk that resulted in Appellant’s injuries.” In

Chatman, this Court explained that “[t]he extent of protection owed to a particular

19
See Miller v. Fields, 570 So.2d 39 (La. App. 4th Cir. 1990), (wherein this Court, in reviewing
the elements of negligence in an action where the survivors of a pedestrian that was struck and
killed by vehicle on an interstate highway service road brought an action against Department of
Transportation and Development (DOTD), alleging that DOTD was liable by virtue of gap in the
fencing that controlled access to interstate, through which the pedestrian had allegedly passed,
found the gap in the fence may have been cause-in-fact of the accident).

25
plaintiff is determined on a case-by-case basis to avoid making a defendant an

insurer of all persons against all harms.” Id, 15-1179, p. 19, 197 So.3d at 379

(citation omitted). “In determining the limitation to be placed on liability for a

defendant’s substandard conduct, the proper inquiry is often how easily the risk of

injury to the plaintiff can be associated with the duty sought to be enforced.” Id.

(citing Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 294 (La. 1993)).

The factfinder should ask, “‘[i]s the harm which befell the plaintiff easily

associated with the type of conduct engaged in by the defendant?’” Chaisson, 05-

1511, p. 24, 947 So.2d at 188 (quoting Roberts, 605 So.2d at 1032). A de novo

review reflects that Boh Bros. failed to prove an absence of factual support that

Mr. Harris’ injuries were not easily associated with the duty to sought to be

enforced, i.e., whether the fence was properly secured.

As to the fifth element, there is no question Mr. Harris suffered injuries after

he fell into the culvert, resulting in damages.

After our de novo review, we conclude Boh Bros. failed to establish lack of

factual support for the elements essential to the Mr. Harris’ negligence claim; thus,

CONCLUSION

Our de novo review reveals the existence of material issues of fact

precluding summary judgment. As a result, the district court’s judgment granting

Boh Bros.’ motion for summary judgment is reversed, and the matter is remanded

to the district court for further proceedings.

REVERSED; REMANDED

26
27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11077500. Public record. Not legal advice.