The opinion
DANIEL HARRIS * NO. 2024-CA-0800
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 Nakisha Ervin-Knott
******
(Court composed of Judge Rachael D. Johnson, Judge Karen K. Herman, Judge
Nakisha Ervin-Knott)
John Richards
RICHARDS LAW LLC
6508 Fleur De Lis Dr.
New Orleans, LA 70124
COUNSEL FOR PLAINTIFF/APPELLANT
Michael R. C. Riess
Robert W. Tschirn
Emilia W. Duncan
RIESS LEMIEUX, LLC
1100 Poydras Street, Suite 1100
New Orleans, LA 70163
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED;
ANSWER TO APPEAL DENIED
SEPTEMBER 16, 2025
NEK Appellant, Daniel Harris (“Mr. Harris”), seeks review of the district court’s
RDJ
October 26, 2023 judgment denying his Daubert motions in limine and granting Boh
KKH
Bros. Construction, LLC’s (“Boh Bros.”) motion for summary judgment. For the
reasons that follow, we affirm the district court’s judgment as it relates to Mr. Harris’
Daubert motions in limine; reverse the district court’s judgment as it relates to Boh
Bros.’s motion for summary judgment; remand the matter to the district court for
further proceedings; and deny the answer to appeal.
FACTUAL BACKGROUND
This case has been before this Court previously, and the underlying facts
were articulated as follows:
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
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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.
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.
Harris v. Boh Bros. Constr. Co., LLC, 2020-0248, pp. 1-2 (La. App. 4 Cir. 5/26/21),
322 So.3d 397, 400-01 (“Harris II”).
PROCEDURAL HISTORY
The following procedural history was provided in Harris II:
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.
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, 101 L.Ed.2d 442 (1988) (hereinafter referred to as
“Boyle”). In addition, Boh Bros. alleged that Mr. Harris could not prove
the elements of breach of duty and causation as to his negligence
claim. The district court granted the motion for summary judgment as
to these issues and provided written reasons. From this judgment, Mr.
Harris appealed.
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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]20-0248, ___ So.3d at ___, 2020 WL
8455801, *1 [“Harris I”]. 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 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]20-0248, ___ So.3d at ___, 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]20-0248, ___ So.3d at ___, 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]20-0248, ___ So.3d at ___, 2020 WL
8455801, at *12. 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 curiam, 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 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
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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).
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.
Harris, 21-00084, pp. 1-2, 312 So.3d at 567.
Harris II, 2020-0248, pp. 2-6, 322 So.3d at 401-04.
On remand, in Harris II, this Court addressed Mr. Harris’ assigned error that
the trial court erred in granting summary judgment in favor of Boh Bros. and made
the following conclusions:
• As to the second prong of the Boyle test – requiring a government
contractor to have performed the work in accordance with the
approved specifications – “there are genuine issues of material
fact as to whether the fencing conformed to the Corps’ plans and
specifications.” Id. at pp. 16-17, 322 So.3d at 410.
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• Boh Bros. had a duty to Mr. Harris to maintain a secure fence
encompassing the construction site. Id. at p. 21, 322 So.3d at 412-
13.
• This case involves “case-specific factual issues,” precluding
summary judgment “as to the open and obvious to all defense.”
Id. at p. 24, 322 So.3d at 414.
• “Boh Bros. failed to present evidence to show personal
knowledge that the fence was properly maintained and secured”
on the day of the incident and therefore, “failed to prove an
absence of factual support for the element of causation.” Id. at p.
25, 322 So.3d at 415.
• “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.” Id.
at p. 26, 322 So.3d at 415.
• Mr. Harris was injured due to falling into the culvert, thus
resulting in damages. Id.
For a second time, finding that there were genuine issues of material fact remaining
on the issues of government contractor immunity and negligence, this Court reversed
the district court’s granting of summary judgment in favor of Boh Bros. and reversed
and remanded this matter back to the district court.
Boh Bros. filed another motion for summary judgment (“motion”) on
September 1, 2023, asserting Mr. Harris cannot sustain his burden of proof on
summary judgment for the following reasons: (1) Boh Bros. is entitled to
government contractor immunity; (2) Mr. Harris’ intentional acts, gross fault, and
negligent failure to exercise due care for his own safety were the sole and proximate
cause of the accident; (3) Boh Bros. did not breach any duty owed to Mr. Harris; and
(4) Mr. Harris cannot sustain his burden of proof on causation. Mr. Harris opposed
this motion; filed his own motion for summary judgment; and filed three motions in
limine to exclude or limit the testimony under Daubert standards of (1) David Lirette
5
(“Dr. Lirette”); (2) Raymond Burkhart (“Mr. Burkhart”); and (3) Edward Bell (“Mr.
Bell”).
On October 5, 2023, the district court heard both motions for summary
judgment and several motions in limine filed by both parties, including Mr. Harris’
three motions. At the conclusion of the hearing, the district court denied all motions
in limine and granted Boh Bros.’s motion for summary judgment. The district court
signed the judgment and issued a notice of signing of judgment on October 26, 2023.
In its written reasons for judgment, the district court stated, in part:
Ultimately, the Court finds that based on the law and evidence
presented in this case, there is no genuine issue of material fact that the
Defendants [Boh Bros.] did not owe a duty to this specific plaintiff [Mr.
Harris]. This does not mean that the defendants owe no duty to the
general public at all. The Court finds that the defendants [Boh Bros.]
certainly had a general duty to maintain a secure fence around the
construction site in order to protect third parties. However, this does not
mean that the defendant [Boh Bros.] has a duty towards legally blind
parties that are walking around unassisted in unfamiliar areas.
The district court made no determination regarding (1) government contractor
immunity; (2) Mr. Harris’ intentional acts, gross fault, and negligent failure to
exercise due care for his own safety being the sole and proximate cause of the
accident; or (3) Mr. Harris not being able to satisfy his burden of proof on causation.
Mr. Harris filed a petition for appeal on November 24, 2023, and the district
court signed the order granting appeal on November 27, 2023. Thereafter, Boh Bros.
timely answered Mr. Harris’ appeal, requesting that this Court modify and/or amend
the October 5, 2023 judgment, such that it is also granted on the following additional
grounds: (1) Boh Bros. is entitled to government contractor immunity; (2) Mr.
Harris’ intentional acts, gross fault, and negligent failure to exercise due care for his
own safety were the sole and proximate cause of the accident; and (3) Mr. Harris
cannot satisfy his burden of proof on causation. Additionally, in its answer, Boh
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Bros. requested: (1) an award of all damages, including attorneys’ fees, for frivolous
appeal; (2) costs as permitted under La. Code Civ. Proc. arts. 863 and 2164; and (3)
any other applicable legal provision that supports an award for fees and costs related
to an appeal.
DISCUSSION
Although Mr. Harris asserts several assignments of error, the dispositive
issues are whether the district court erred in denying his Daubert motions in limine
and granting Boh Bros.’ motion for summary judgment.1
Motions in Limine
In response to Boh Bros.’ motion for summary, Mr. Harris filed three motions
in limine to exclude or limit the testimony under Daubert standards of (1) Dr. Lirette;
(2) Mr. Burkhart; and (3) Dr. Bell. Mr. Harris’ Daubert motions were heard on the
same day as, but prior to, the hearing on his and Boh Bros.’ motions for summary
judgment. On appeal, Mr. Harris argues that the district court erred in denying his
Daubert motions. However, in his reply brief, Mr. Harris specifically asserts, for the
first time, that “the [district] court erred in failing to hear and decide Mr. Harris’
Daubert Motions…pursuant to Article 966(D)(3)[2] prior to hearing and deciding
Boh Bros’ second [m]otion for [s]ummary [j]udgment.”
1 On appeal, Mr. Harris asserts four assignments of error: (1) the district court erred in granting
Boh Bros.’ second summary judgment when genuine issues of material fact exist on whether Mr.
Harris can prove Boh Bros.’ negligence; (2) the district court erred in granting Boh Bros.’ second
summary judgment when Boh Bros. had a duty to maintain a “Safety and Security Fence” around
the construction site and to erect a retaining wall on both sides of the massive trench, and the Law
of the Case doctrine applies to this Court’s prior ruling that “Boh Bros. had a duty to Mr. Harris,
a third party, to maintain secure fence surrounding the construction site;” (3) the district court erred
in granting Boh Bros.’ second summary judgment when genuine factual issues exist on whether
Boh Bros. is entitled to government contractor immunity; and (4) the district court erred in denying
Mr. Harris’ Daubert Motions in Limine to exclude or limit Boh Bros.’ experts, David Lirette,
Raymond Burkart, and Edward Bell.
2 Louisiana Code of Civil Procedure Article 966(D)(3) provides, “If a timely objection is made to
an expert's qualifications or methodologies in support of or in opposition to a motion for summary
judgment, any motion in accordance with Article 1425(F) to determine whether the expert is
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Rule 2-12.6 of the Uniform Rules – Courts of Appeal specifies that the reply
brief “shall be strictly confined to rebuttal of points urged in the appellee’s brief.”
Boh Bros.’ brief did not raise any issue with respect to La. C.C.P. art. 966(D)(3) in
this case. Accordingly, the argument raised by Mr. Harris in his reply brief
concerning Article 966(D)(3) is not the “rebuttal of points” raised by Boh
Bros. Thus, we pretermit a discussion of this issue, as it should have been raised in
Mr. Harris’ original brief.
An appellate court reviews a lower court’s ruling on a motion to exclude an
expert witness’s testimony for an abuse of discretion. Anderson v. City of New
Orleans, 2024-0252, p. 4 (La. App. 4 Cir. 5/1/24), 390 So.3d 402, 405. However,
legal error with respect to the admissibility of expert testimony is reviewed de novo.
Id. at p. 5, 390 So.3d at 405-06.
“This Court recognized in Allen v. Eagle Inc., 2022-0386, p. 9 (La. App. 4
Cir. 8/10/22), 346 So.3d 808, 814-15, that under the standards set forth
in Daubert and Foret, a trial court is required to perform a ‘gatekeeping’ function to
‘ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.’” Id. at p. 4, 390 So.3d at 405 (citations omitted). Louisiana
Code of Evidence Article 702(A) provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
(1) The expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
qualified or the expert's methodologies are reliable shall be filed, heard, and decided prior to the
hearing on the motion for summary judgment.” (Emphasis added).
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(4) The expert has reliably applied the principles and methods to the
facts of the case.
The record reflects that Dr. Lirette, Mr. Burkart, and Dr. Bell each prepared
expert reports addressing causation and liability issues. As it relates to Dr. Lirette,
Boh Bros.’s toxicology expert, Mr. Harris asserts that “his factual contentions,
disguised as expert opinions, lack any investigation, methodology, reference to any
peer review treatises or any known rate of error whatsoever.” According to his report
and curriculum vitae, Dr. Lirette received a bachelor of science degree in pre-
medical biology with a minor in chemistry, a master of science degree in toxicology,
and a Ph.D. in toxicology. He has also testified as an expert in toxicology in several
Louisiana state courts. Based on his review of deposition testimony, medical records,
safety logs, and Google Maps, Dr. Lirette opined that Mr. Harris was inebriated – in
the confusion/stupor stage of intoxication – at the time of the incident. He further
opined that while in this inebriated state, Mr. Harris was either beaten and thrown
into the culvert or someone attempted to escort him through a tiny gap in the fence
and “guide[d] him to walk a narrow steel beam across the hole, while wearing ‘flip
flops’, to access the side his stepdaughter lived on.” Dr. Lirette’s expert opinion is
relevant given the fact that Mr. Harris had alcohol in his bloodstream, and his alcohol
consumption may have impacted his decision-making and motor functions at the
time of the incident. Further, Dr. Lirette’s methodology meets Daubert standards for
reliability as he utilized Mr. Harris’ medical records from when he was admitted into
the hospital after the incident. While Mr. Harris’ critiques highlight weaknesses in
Dr. Lirette’s opinions, those weaknesses go primarily to the weight of the testimony
rather than its admissibility. Therefore, we find the district court did not abuse its
discretion in denying the Daubert motion as it relates to Dr. Lirette.
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Similarly, Mr. Harris contends the district court erred in not limiting or
excluding Mr. Burkhart’s opinions, as he did not perform an accident reconstruction
in this matter. Mr. Burkhart – Boh Bros.’s accident reconstruction expert – clarified
that while he is an expert in accident reconstruction, his expertise in construction
zone safety is a subcategory of accident reconstruction. He also opined that in this
case, an accident reconstruction was not possible due to a lack of sufficient evidence.
Mr. Burkhart’s methodology meets Daubert standards for reliability as his
application of accident reconstruction principals led him to the conclusion that such
a reconstruction was not possible. Accordingly, we find no merit to Mr. Harris’
argument that the district court erred in not limiting or excluding Mr. Burkhart’s
expert opinions.
Lastly, Mr. Harris maintains the district court erred in not limiting or
excluding Dr. Bell’s opinions because his opinions are outside his purported
expertise of orientation and mobility of a blind person. According to his report and
curriculum vitae, Dr. Bell received a bachelor of arts degree in human development,
a master of arts degree in educational psychology with a concentration in orientation
and mobility, and a Ph.D. in rehabilitation education and research. Dr. Bell possesses
several certifications, including the National Orientation and Mobility Certification
(NOMC) and National Certification in Unified English Braille (NCUEB) and is the
Director of the Professional Development and Research Institute on Blindness at
Louisiana Tech University. Based on his review of deposition testimony, Mr. Harris’
petition, medical records, and safety logs, Dr. Bell opined, in part:
What Mr. Harris should not have done under any circumstance short of
an emergency was to attempt to navigate home on his own. Making the
decision to leave on foot to return home without a sighted guide or
white cane would have been a very unwise and dangerous decision by
10
Mr. Harris, and a decision that he, himself, says he would not have
made. The decision to walk around urban city streets at night, alone,
without the use of a recognized mobility device, and in an unfamiliar
area would have been reckless, irrational, and likely to result in personal
injury.
…
Nothing in the documents provided shows any wide-open holes in the
fencing around the coffer dam/construction site, missing protective
barriers, or obvious gaps through which a person could have easily
fallen. Without any witnesses nor Mr. Harris’[ ] recollection of the
events that transpired on April 8, 2016, I cannot know for certain how
he ended up at the bottom of the Coffer Dam. What my review of the
evidence does show is that Boh Bros[.] took all reasonable precautions
and safeguards to protect citizens, while Mr. Harris took no such
precautions nor any personal responsibility.
Dr. Bell’s expert opinion is relevant given the fact that Mr. Harris is legally blind
and his decision to walk in an unfamiliar neighborhood without any assistance may
have impacted his orientation and mobility at the time of the incident. Further, Dr.
Bell’s methodology meets Daubert standards for reliability as he established the
baseline of mobility for blind individuals and utilized Mr. Harris’ medical records,
deposition testimony, and safety logs to analyze the facts of this particular case.
Again, while Mr. Harris’ critiques highlight weaknesses in Dr. Bell’s opinions, those
weaknesses go primarily to the weight of the testimony rather than its admissibility.
Thus, we find the district court did not abuse its discretion in denying the Daubert
motion as it relates to Dr. Bell.
Given that Mr. Harris failed to demonstrate that the methodologies employed
by these experts were unreliable under La. C.E. art. 702, the district court did not
abuse its discretion in denying his Daubert motions. The experts’ opinions were
admissible, and any weaknesses in their conclusions are properly left for the trier of
fact to consider. Accordingly, Mr. Harris’ assignment of error as to the Daubert
motions lack merit.
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Motion for Summary Judgment
In Manning v. RH Windrun LLC, this Court explained, in pertinent part:
A motion for summary judgment is a procedural device used to avoid a
full[-]scale trial when there is no genuine issue of material fact for all
or part of the relief prayed for by a litigant. Garrison v. Old Man River
Esplanade, L.L.C., 2013-0869, p. 2 (La. App. 4 Cir. 12/18/13), 133
So.3d 699, 700; Duncan v. U.S.A.A. Ins. Co., 2006-0363, p. 3 (La.
11/29/06), 950 So.2d 544, 546.
“A summary judgment is reviewed on appeal de novo, with the
appellate court 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.” Schultz v. Guoth,
2010-0343, pp. 5-6 (La. 1/19/11), 57 So.3d 1002, 1005-
1006 (quoting Samaha v. Rau, 2007-1726, pp. 3-4 (La. 2/26/08), 977
So.2d 880, 882–83); Smith v. Treadaway, 2013-0131, p. 4 (La. App. 4
Cir. 11/27/13), 129 So.3d 825, 828.
La. C.C.P. art. 966(A)(3) provides that a motion for summary judgment
will 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.” “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.” La. C.C.P. art. 966(A)(4).
The summary judgment procedure is designed to secure the just,
speedy, and inexpensive determination of every action. La. C.C.P. art.
966(A)(2). The procedure is favored and shall be construed to
accomplish these ends. Id. La. C.C.P. art. 966(D)(1) sets forth the
burden of proof in summary judgment proceedings, as follows:
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.
“When a motion for summary judgment is made and supported, an
adverse party may not rest on the mere allegations or denials of his
12
pleading, but his response, by affidavits or as otherwise provided by
law, must set forth specific facts showing that there is a genuine issue
for trial.” La. C.C.P. art. 967(B). “If he does not so respond, summary
judgment, if appropriate, shall be rendered against him.” Id.
“A genuine issue is one as to which reasonable persons could disagree;
if reasonable persons could only reach one conclusion, there is no need
for trial on that issue, and summary judgment is appropriate.” Crosby
v. Sahuque Realty Co., Inc., 2021-0167 [p. 6 (La. App. 4 Cir. 10/13/21),
366 So.3d 123, 128] (citing Smith v. Our Lady of the Lake Hosp., Inc.,
1993-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751). “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.” Crosby, 2021-0167, pp. 6-7, [366 So.3d at 128-29]
(citing Chapital v. Harry Kelleher & Co., Inc., 2013-1606, p. 5 (La.
App. 4 Cir. 6/4/14), 144 So.3d 75, 81).
A trial court may not weigh conflicting evidence or make credibility
determinations in deciding a motion for summary judgment. Danna v.
Ritz-Carlton Hotel Co., LLC, 2015-0651, p. 6 (La. App. 4 Cir. 5/11/16),
213 So.3d 26, 32 (citing M.R. Pittman Grp., L.L.C. v. Plaquemines Par.
Gov't, 2015-0860, p. 11 (La. App. 4 Cir. 12/2/15), 182 So.3d 312,
320 and Jeffers v. Thorpe, 1995-1731, p. 4 (La. App. 4 Cir. 1/19/96),
673 So.2d 202, 205). Additionally, “[a]ny doubt regarding a material
issue of fact must be resolved against granting the motion and in favor
of a trial on the merits.” Danna, 2015-0651, p. 7, 213 So.3d at
32 (quoting Smith, 1993-2512, p. 27, 639 So.2d at 751).
“Any consideration as to whether the plaintiff will succeed at a trial on
the merits is irrelevant and an insufficient basis to render a summary
judgment against that party.” Jones v. Gov’t Emps. Ins. Co., 2016-
1168, p. 7 (La. App. 4 Cir. 6/14/17), 220 So.3d 915, 921 (quoting
Barbarin v. Dudley, 2000-0249, p. 6 (La. App. 4 Cir. 12/20/00), 775
So.2d 657, 660).
2023-0588, pp. 7-8 (La. App. 4 Cir. 5/1/24), __ So.3d __, ___, 2024 WL 1905039,
*3-5 (quotation omitted). With these legal precepts in mind, we now turn to our
review of Mr. Harris’ assignments of error regarding governmental immunity and
negligence.
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Government Contractor Immunity
On appeal, Mr. Harris asserts the district court erred in granting Boh Bros.’
motion because there are genuine issues of material fact regarding whether Boh
Bros. is entitled to government contractor immunity. In Harris II, this Court cited to
Banks v. Par. of Jefferson, 2012-215, p. 22 (La. App. 5 Cir. 1/30/13), 108 So.3d
1208, 1222, in its discussion on the Boyle test – the factors used to determine the
applicability of government contractor immunity, and explained:
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).
Harris II, 2020-0248, p. 10, 322 So.3d at 406-07.
As discussed earlier, the Louisiana Supreme Court has already determined
that Boh Bros. has met the first prong of the Boyle test. Therefore, no further
discussion of this issue is necessary.
The second prong of the Boyle test requires a government contractor to have
performed the work in accordance with the government-approved specifications.
Under this second prong, Boh Bros. must establish the fence conformed with the
Corps’ approved plans and specifications in order to be entitled to summary
judgment. In support of its motion, Boh Bros. submitted the deposition testimonies
of individuals who served in various roles for this construction project – John
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Fogarty (“Mr. Fogarty”), the Corps’ resident engineer and administrative contracting
officer; Lloyd Bradshaw (“Mr. Bradshaw”), the Corps’ quality assurance
representative; and Brett Carbo (“Mr. Carbo”), Boh Bros.’ “Site Safety and Health
Manager/Officer.”
According to Mr. Fogarty, he never cited Boh Bros. for failing to secure the
safety fencing at the end of the workday. During his deposition, Mr. Fogarty testified
that he issued multiple “Contractor Performance Assessment Reports” documenting
Boh Bros.’ satisfactory work. He further testified that during the time period at issue
in this case, he found Boh Bros.’ performance and execution of its safety plan was
“satisfactory.”
Corroborating Mr. Fogarty’s testimony, Mr. Bradshaw also testified that he
never cited Boh Bros. for failing to secure the safety fencing at the end of the
workday. During his deposition, Mr. Bradshaw explained that as the Corps’ quality
assurance representative, he was responsible for driving around the entire worksite
at the end of the workday to ensure the safety fencing was secured, and he never had
to issue any type of deficiency notice to Boh Bros. for not complying with the
requirement to secure that safety fencing.
Furthermore, during Mr. Carbo’s deposition, he testified that in his role as
“Site Safety and Health Manager/Officer”, he and Adreane Diaz (“Mr. Diaz”)
performed daily morning and evening inspections of the construction site for safety
and traffic controls. According to Mr. Carbo, he never cited a Boh Bros. employee
for failing to secure the fencing at the end of the day or when work was complete,
and he never found a fence left open at the end of the work day. He also testified that
on the day of the incident, he performed the morning traffic inspection, Mr. Diaz
15
performed the afternoon traffic control inspection, and no deficiencies were reported
or noted for that day.
In addition to the depositions of Messrs. Fogarty, Bradshaw, and Carbo, Boh
Bros. submitted the depositions of various workers who were present on the
construction site the day of the incident. Concrete Foreman, Ernest Chisholm (“Mr.
Chisholm”), testified that his crew entered the construction site by removing the wire
ties from the fencing and moving the fencing pieces to separate them. He also
testified that he and his crew always put the fencing back together after they entered
the site. On the day of the incident, Mr. Chisholm did not recall seeing any fencing
unsecured, and based on his recollection, another crew tied off and made sure the
fencing was closed at the end of the day. During Carpenter Foreman Gerry
Vanvliet’s (“Mr. Vanvliet”) deposition, he confirmed Mr. Chisholm’s testimony as
he testified that he personally put the fencing back together at the end of the day,
drove around the work area twice, and observed that the fencing was properly
secured at that time.
In its opposition to Boh Bros.’ motion, Mr. Harris submitted Mr. Carbo’s daily
safety log entries from April 4 and 6, 2016. On April 4, 2016, Mr. Carbo noted, “[I]s
housekeeping being maintained and kept up? Blue PVC pipe left outside the fence
and fence was not closed.” Moreover, on April 6, 2016, Mr. Carbo noted, “When
excavation not in use[,] we should put some type of barrier to stop people from
walking into the excavation.” Notably, there is no safety log entry for April 8, 2016,
the date of the incident.
As part of his duties as traffic control supervisor, Mr. Carbo took daily dash-
cam footage of the construction site. Several of the dash-cams revealed openings in
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the safety fence. Specific to this incident, there was no dash-cam footage for the
morning and evening of April 8, 2016, nor the morning and evening of April 9, 2016.
Besides Mr. Carbo’s daily safety logs and dash-camera footage, Mr. Harris
submitted a report from William Stein (“Mr. Stein”), his engineering and
construction expert. In his report, Mr. Stein concluded:
[Boh Bros.] did not comply with their contract obligations set forth by
their agreed contract. They failed to guard the work site from the public
with the required 6 (six) foot high continuous safety fencing capable to
withstanding 200 pounds of force and proper rigid barriers that are
required by the ADA and OSHA at the site of the excavation were [sic]
Mr. Harris fell in.
Based on the record before this Court, we conclude there are genuine issues
of material fact as to whether the fencing conformed to the Corps’ plans and
specifications. Boh Bros.’ submitted depositions support a finding that the safety
fence surrounding the construction site was regularly closed and secured when
workers left the site at the end of the workday. Conversely, Mr. Harris’ submitted
daily safety logs, dash-cam footage, and Mr. Stein’s expert report suggest the safety
fence was not closed and secured in accordance with Boh Bros.’ contract with the
Corps. Accordingly, Boh Bros. failed to show it was entitled to summary judgment
as to this prong of the Boyle test.
Finding that genuine issues of material fact exist as to the second prong of the
Boyle test, we pretermit our discussion on the third prong of the Boyle test and
conclude that Boh Bros. failed to prove it was entitled to summary judgment under
government contractor immunity as a matter of law.
Negligence
In challenging the district court’s granting of Boh Bros.’ motion for summary
judgment, Mr. Harris also asserts there are genuine issues of material fact concerning
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his negligence claim against Boh Bros. Mr. Harris’ lawsuit in premised on the
assertion that Boh Bros. was negligent, under La. C.C. art. 2315, in securing the
construction site. In its motion, Boh Bros. argued that it did not breach any duty to
Mr. Harris, and Mr. Harris could not sustain his burden of proof on causation.
Louisiana Civil Code Article 2315 provides, in pertinent part, “Every act
whatever of man that causes damage to another obliges him by whose fault it
happened to repair it.” Louisiana jurisprudence utilizes a duty/risk analysis in
determining negligence under La. C.C. art. 2315. Harris II, 2020-0248, p. 20, 322
So.3d at 412 (citation omitted). Under a duty/risk analysis, the plaintiff must prove
these 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)[.]
Id. (citation omitted). For purposes of this summary judgment motion, Boh Bros.
was required to demonstrate an absence of factual support for at least one of these
elements of Mr. Harris’ negligence claim.
Duty
The first element, duty, “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.” Id. (citation omitted).
Likewise, “a duty may arise from the nature of the undertaking, or by contract.” Id.
at pp. 20-21, 322 So.3d at 412 (citation omitted). In its written reasons for judgment,
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the district court reasoned that “there is no genuine issue of material fact that [Boh
Bros.] did not owe a duty to [Mr. Harris]…[Boh Bros.] certainly had a general duty
to maintain a secure fence around the construction site in order to protect third
parties. However, this does not mean that [Boh Bros.] has a duty towards legally
blind parties that are walking around unassisted in unfamiliar areas.”
Contrary to the district court’s reasoning, this Court, in Harris II, explicitly
concluded that “Boh Bros. had a duty to Mr. Harris, a third party, to maintain a
secure fence surrounding the construction site.” Id. at p. 21, 322 So.3d at 412-13.
Boh Bros. attempts to bypass this Court’s earlier pronouncement by rephrasing the
district court’s reasoning and arguing the district court found that Boh Bros. did not
owe a “heightened duty” to Mr. Harris. We are not persuaded by Boh Bros.’
rephrasing of the issue and stand by our previous finding – Boh Bros. owed a duty
to Mr. Harris to maintain a secure fence surrounding the construction site.3
Breach of Duty
As to 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.” Id. at p. 21,
322 So.3d at 413 (citation omitted). Boh Bros. insists Mr. Harris has no evidence
that it breached “its general duty to third parties” to maintain a secure fence
surrounding the construction site.4 In support of this position, Boh Bros. provided
3 Under the jurisprudential doctrine of law of the case, “an appellate court will ordinarily not
reconsider its own rulings of law on a subsequent appeal in the same case.” Holmes v. City of New
Orleans, 2024-0269, p. 3 (La. App. 4 Cir. 9/26/24), 399 So.3d 827, 830.
4 In its reasons for judgment, the district court utilized the risk-utility balancing test in determining
that Mr. Harris’ “own actions were inherently dangerous and would have subjected him to injury
anyways.” As observed by this Court in Harris II, “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.”
Harris, 2020-0248, p. 21, 322 So.3d at 413, n. 16. Therefore, just as we rejected the applicability
of the risk-utility balancing test in Harris II, we decline to utilize this balancing test in the matter
herein.
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the deposition testimonies of several individuals who were involved with this
construction project. As mentioned earlier, Messrs. Fogarty and Bradshaw testified
that they never cited Boh Bros. for failing to secure the safety fencing at the end of
the workday. Further, Mr. Vanvliet related that on the day of the incident, he
personally put the fencing back together at the end of the workday and observed that
the fencing was properly secured.
On the other hand, Mr. Harris rebutted Boh Bros.’ evidence by submitting Mr.
Carbo’s daily safety log entries – just days before the incident – that noted the safety
fence was not closed, and his dash-cam footage revealing openings in the safety
fence. Additionally, Mr. Harris offered Mr. Stein’s expert report, in which he
concluded that Boh Bros. “failed to guard the work site from the public with the
required 6 (six) foot high continuous safety fencing….” (emphasis added).
Examining the submitted evidence in its totality, we find there are genuine issues of
material fact regarding whether Boh Bros. breached its duty to maintain a secure
fence surrounding the construction site.
Cause-in-Fact
The third element of cause-in-fact, also known as causation, “is a question of
fact, subject to the manifest error standard of review.” Id. at p. 24, 322 So.3d at 414
(citation omitted). Under a causation analysis, courts determine “whether the
conduct was a substantial factor leading to the accident, i.e., whether it had a direct
relationship to the accident.” Id. at p. 24, 322 So.3d at 415 (citation omitted).
Boh Bros. asserts Mr. Harris’ “intentional acts and gross fault were the sole
and proximate cause” of this incident. Unfortunately, neither side has any
eyewitnesses to this incident, and Mr. Harris has no memory of what occurred.
However, there is testimony that Mr. Harris traveled to a convenience store in his
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daughter’s neighborhood accompanied by someone, and when he left the store to
head back to his daughter’s residence, he was traveling alone. Furthermore, Mr.
Harris’ toxicology reports show that shortly after being admitted into the hospital,
his blood alcohol concentration level was 0.0659.
In support of its position, Boh Bros. submitted the expert opinions of Dr.
Lirette, Mr. Burkart, and Dr. Bell. Dr. Lirette opined that that Mr. Harris was
intoxicated and impaired, making the risk of injury “practically absolute.” Dr. Lirette
further determined that Mr. Harris’ level of intoxication, combined with his decision
to travel unescorted despite being legally blind, showed gross fault and was the
proximate cause of his fall. Mr. Burkart maintained that the available evidence did
not support Mr. Harris’ theory that a lack of secured fencing or construction
negligence caused the fall. Additionally, Mr. Bell explained that Mr. Harris’ decision
to walk unescorted, at night, without a cane or guide, made him “vulnerable to
personal injuries” and constituted recklessness. He concluded that Mr. Harris’
actions – not Boh Bros.’ omissions – were the real cause of the accident. Together,
these experts support Boh Bros.’ argument that Mr. Harris’ intoxication, blindness
without precautionary devices, and personal choices amounted to gross negligence
and were the sole proximate cause of his fall, rather than any breach by Boh Bros.
As discussed above, there is a genuine issue of material fact regarding whether
Boh Bros. breached its duty to maintain a secure fence as Mr. Harris has presented
evidence that the construction site was not properly secured with the safety fencing.
The record contains evidence that supports a finding that Boh Bros.’ failure to
properly secure the fence was a substantial factor in Mr. Harris’ fall. Photographs,
dash-cam footage, and daily safety logs support Mr. Harris’ argument that Boh Bros.
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left open and unsecured sections of the fence in direct violation of its contractual
obligations.
Moreover, expert reports explain how these deficiencies increased the risk that
a pedestrian – such as Mr. Harris – would access the culvert and fall. Mr. Stein
opined that Boh Bros. breached its contractual and safety obligations by failing to
maintain a continuous and secured fence, failing to tie fence panels together with
metal fasteners, and failing to erect required retaining walls on both sides of the
culvert. His report emphasized that these omissions left open gaps that effectively
invited pedestrian intrusion into the construction site. Mr. Stein concluded that
proper compliance with the Corps’ specifications would have prevented public
access to the construction site and, thereby prevented Mr. Harris’ fall. Brendan
Bourdage (“Mr. Bourdage”), Mr. Harris’ biomechanical expert, evaluated the
mechanism of his fall, including physical forces and human-factors considerations.
Mr. Bourdage concluded that unsecured and untied fencing, visible in photographs
and Google Earth imagery, increased the risk that pedestrians would inadvertently
enter the construction site. His report emphasized that Mr. Harris’ legally blind status
did not break the causal chain; instead, it made the failure to secure the perimeter
fence even more dangerous. In Mr. Bouradge’s professional opinion, Boh Bros.’
negligence in leaving open gaps and failing to install required retaining barriers was
a substantial factor in Mr. Harris’ fall. Taking all of this evidence into consideration,
there exists a genuine issue of material fact as to whether Boh Bros.’ omissions were
a cause-in-fact of Mr. Harris’ injuries.
Scope of Liability
Turning to the fourth element, scope of liability, or legal causation, this
inquiry is a mixed question of law and fact that “assumes a duty exists and questions
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whether the injury the plaintiff suffered is one of the risks encompassed by the rule
of law that imposed the duty.” Id. at p. 25, 322 So.3d at 415 (citation omitted). “[T]he
extent of protection owed to a particular plaintiff is determined on a case-by-case
basis to avoid making a defendant an insurer of all persons against all harms.” Id. at
pp. 25-26, 322 So.3d at 415 (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. at p. 26, 322 So.3d at 415 (citation omitted). Thus, under this
element of negligence, the factfinder asks, “is the harm which befell the plaintiff
easily associated with the type of conduct engaged in by the defendant?” Id. (citation
omitted).
This Court has already held that Boh Bros. owed a duty to Mr. Harris to
maintain a secure perimeter fence around the construction site. The precise harm that
occurred – Mr. Harris falling into the culvert – is exactly the type of risk that the
safety fence and retaining wall requirements were designed to prevent. In other
words, Mr. Harris’ injuries were not the result of some unforeseeable or
extraordinary event. Rather, his injuries were easily associated with the duty of
maintaining a secure fence surrounding the construction site.
The district court’s reasoning that Mr. Harris’ conduct – a legally blind
individual walking on the street, unaccompanied, in an unfamiliar neighborhood –
removed his injuries outside the scope of Boh Bros.’ liability is flawed. Under
comparative fault5, Mr. Harris’ potential negligence in walking near the construction
5 Louisiana Code Article 2323(A) provides:
A. In any action for damages where a person suffers injury, death, or loss, the
degree or percentage of fault of all persons causing or contributing to the injury,
23
site does not absolve Boh Bros. of liability where Mr. Harris alleges that its failure
to secure the fencing surrounding the construction site was a substantial factor in
producing the harm. As such, Boh Bros. failed to show the absence of factual support
concerning scope of liability.
Damages
As determined in Harris II, the fifth element is undisputed as “Mr. Harris
suffered injuries after he fell into the culvert, resulting in damages.” Id.
Based on our de novo review of the record before this Court, we conclude
there are genuine issues of material fact regarding the essential elements of Mr.
Harris’ negligence claim. Accordingly, Boh Bros. failed to show that it was entitled
to summary judgment on the issue of negligence.
Answer to Appeal/Cross-Appeal
In its answer/cross-appeal, Boh Bros. requests that this Court modify and/or
amend the district court’s judgment to recognize the following: (1) Boh Bros. is
entitled to government contractor immunity; (2) Mr. Harris’ intentional acts, gross
fault, and negligent failure to exercise due care for his own safety were the sole and
proximate cause of the accident; and (3) Mr. Harris cannot satisfy his burden of proof
on causation. Based on the aforementioned reasons, this Court finds that Boh Bros.’
requests in its answer/cross-appeal are not warranted as genuine issues of material
fact regarding governmental immunity and negligence exists.
death, or loss shall be determined, regardless of whether the person is a party to the
action or a nonparty, and regardless of the person's insolvency, ability to pay,
immunity by statute, including but not limited to the provisions of R.S. 23:1032, or
that the other person's identity is not known or reasonably ascertainable. If a person
suffers injury, death, or loss as the result partly of his own negligence and partly as
a result of the fault of another person or persons, the amount of damages
recoverable shall be reduced in proportion to the degree or percentage of negligence
attributable to the person suffering the injury, death, or loss.
24
Additionally, Boh Bros. also asserts that it is entitled to damages for frivolous
appeal under La. C.C.P. arts. 863 and 2164. “Our jurisprudence reflects that
‘[a]ppeals are always favored and, unless the appeal is unquestionably frivolous,
damages will not be granted[ ] due in part to the possible chilling effect on the
appellate process.’” Favret v. Favret, 2022-0820, p. 21 (La. App. 4 Cir. 7/31/23),
371 So. 3d 511, 527 (citation omitted). “Likewise, because the statute allowing the
imposition of damages for frivolous appeal is penal in nature, it must be strictly
construed in favor of the appellant.” Id. (citation omitted). Additionally, our
“jurisprudence reflects that damages for a frivolous appeal may be awarded ‘if the
appellant is trying to delay the action or if the appealing counsel does not seriously
believe the law he or she advocates.’” Id. at p. 22, 371 So. 3d at 527 (citation
omitted).
Considering the record in this case, we cannot conclude that Mr. Harris’
appeal is frivolous. The record does not support a finding that this appeal was filed
for the purpose of delaying the action or that Mr. Harris’ counsel did not seriously
believe the law or position advocated. Therefore, this matter does not meet the
requirements of a frivolous appeal, and we deny Boh Bros.’ request for frivolous
appeal damages. Accordingly, the answer to the appeal is denied.
DECREE
For the foregoing reasons, we affirm the district court’s October 26, 2023
judgment as it relates to Mr. Harris’ Daubert motions in limine; reverse the district
court’s judgment as it relates to Boh Bros.’s motion for summary judgment; remand
the matter to the district court for further proceedings; and deny the answer to appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED;
ANSWER TO APPEAL DENIED
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