Fowler

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

KALEB FOWLER CASE NO. 3:23-CV-01525

VERSUS JUDGE TERRY A. DOUGHTY

WESTROCK CP L L C ET AL MAG. JUDGE KAYLA D. MCCLUSKY

MEMORANDUM RULING

Before the Court is a Motion for Summary Judgment [Doc. No. 42] filed by

Defendant, H&M Construction Company, LLC, (“H&M”). Plaintiff, Kaleb Fowler

(“Fowler”), opposes the Motion [Doc. No. 44]. H&M filed a reply [Doc. No. 45].

For the following reasons, the Motion is GRANTED.

I. Background

This is a worksite injury case, arising from an incident that occurred on

December 17, 2021.1 At the time, Waste Connections of Louisiana, Inc., (“Waste

Connections”) employed Fowler.2 Waste Connections contracted with WestRock CP,

LLC, (“WestRock”) to clean WestRock’s dumpsters at WestRock’s paper mill in Hodge,

Louisiana.3 WestRock also hired H&M to clean the paper mill’s grounds.4

On the day in question, Fowler was attaching cables to a dumpster at the mill,

so the dumpster could be loaded onto a truck.5 He stepped into mud and water,

causing him to slip and fall and, as a result, allegedly injured his knee and leg.6

1 [Doc. No. 1, ¶ 4].

2 [Id. at ¶ 5].

3 [Id. at ¶¶ 4–5].

4 [Id. at ¶ 6].

5 [Id. at ¶ 4].

6 [Id.]; [Doc. No. 1-1, p. 6].

Fowler sued WestRock and H&M, claiming they caused his injury.7 Fowler

alleges H&M and WestRock negligently hired, trained, and supervised its employees;

negligently created unreasonably unsafe conditions; and negligently monitored its

premises.8 H&M filed this Motion, arguing all claims against it should be dismissed.9

The parties briefed all relevant issues, and the matter is ripe.

II. Law and Analysis

A. Standard of Review

A court will grant summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). If the movant meets their initial burden of

showing no genuine issue of material fact, “the burden shifts to the nonmoving party

to produce evidence or designate specific facts showing the existence of a genuine

issue for trial.” Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d

703, 706 (5th Cir. 2013) (citation modified). A fact is “material” when proof of its

existence or nonexistence would affect the lawsuit’s outcome under applicable law in

the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words,

“the mere existence of some alleged factual dispute will not defeat an otherwise

properly supported motion for summary judgment.” Id. at 247–48. And a dispute

about a material fact is “genuine” only if the evidence is such that a reasonable fact

finder could render a verdict for the nonmoving party. Id.

7 [Doc. No. 1, p. 1].

8 [Id. at ¶¶ 7–9].

9 [Doc. No. 42].

While courts will “resolve factual controversies in favor of the nonmoving

party,” an actual controversy exists only “when both parties have submitted evidence

of contradictory facts.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

But summary judgment is appropriate when the evidence is “merely colorable or is

not significantly probative.” Anderson, 477 U.S. at 249 (1986) (citation modified).

Moreover, “a party cannot defeat summary judgment with conclusory

allegations, unsubstantiated assertions, or only a scintilla of evidence.” Turner v.

Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citation modified).

Courts “may not make credibility determinations or weigh the evidence” and “must

resolve all ambiguities and draw all permissible inferences in favor of the non-moving

party.” Total E & P USA Inc. v. Kerr–McGee Oil and Gas Corp., 719 F.3d 424, 434

(5th Cir. 2013) (citations omitted).

Finally—and importantly—there can be no genuine dispute as to a material

fact when a party “fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden

of proof of trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

In this diversity suit, the forum state, i.e., Louisiana’s substantive law applies.

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

B. Rule 56(c)(2) Evidentiary Objections

Before turning to the merits, the Court notes Fowler objects to several

materials H&M used in its Motion. Fowler argues that H&M’s two cited affidavits—

affidavit of Janie Ferguson (“Ferguson”)10 and affidavit of Billy Nelson (“Nelson”)11—

are impermissible because they are conclusory and unsupported.12 Fowler also argues

two other exhibits—the Master Construction Agreement13 (“MCA”) and the

Environmental Services Agreement14 (“ESA”)—are impermissible because they

cannot be authenticated.15 The Court disagrees with both arguments.

1. The Affidavits are Substantiated and not Conclusory

“[A]ffidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Orthopedic & Sports Inj. Clinic v. Wang Lab’ys, Inc., 922 F.2d 220, 225 (5th Cir. 1991)

(quoting Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985)). But

courts may rely on, at the summary judgment stage, affidavits “made on personal

knowledge, setting out facts that would be admissible in evidence, and showing that

the affiant or declarant is competent to testify on the matters stated.” Guzman v.

Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021) (citation modified). “And

these facts must be particularized, not vague or conclusory.” Id. (citation omitted).

“[W]hile an affidavit certainly can explicitly state that it is based on ‘personal

knowledge,’ there is no requirement for a set of magic words.” DIRECTV, Inc. v.

Budden, 420 F.3d 521, 530 (5th Cir. 2005) (footnote omitted). The affidavits of

Ferguson and Nelson satisfy the above requirements.

10 [Doc. No. 42-6].

11 [Doc. No. 42-10].

12 [Doc. No. 44, pp. 2–3].

13 [Doc. No. 42-7].

14 [Doc. No. 42-11].

15 [Doc. No. 44, p. 3].

The first affidavit is Ferguson’s. It states H&M employed Ferguson as the

paper mill worksite’s “Site Administrator” since October 2012.16 In this role, Ferguson

managed H&M’s construction office at the paper mill and had business records of

H&M’s work performed at the paper mill.17 Among these records, is the MCA, which

outlined H&M’s responsibilities at the worksite at the time, and other invoices to

WestRock for work H&M performed.18 Relying on these records, Ferguson states that

H&M does not have any records indicating that WestRock requested H&M to perform

any periodic work, before December 2021, near the dumpster storage area.19 Rather,

he states, the only invoices are for work performed H&M performed at the dumpster

storage area after December 2021.20 These are not conclusory statements, but merely

factual assertions. These facts are, furthermore, based on personal information and

supported by other records. As such, Ferguson’s affidavit is permissible, and the

Court will rely on it.

Next, is Nelson’s affidavit. H&M employed him too, as a “Supervisor” at the

paper mill worksite, since October 2012.21 And like Ferguson, Nelson also managed

H&M’s operations at the paper mill and knew about the MCA, which outlined H&M’s

duties and responsibilities at the paper mill.22 Nelson testified that pre-December

2021, H&M only performed occasional clean-up at the dumpster area.23 Only after

16 [Doc. No. 42-6, ¶ 1].

17 [Id. at ¶ 2].

18 [Id.].

19 [Id. at ¶ 3].

20 [Id. at ¶ 4].

21 [Doc. No. 42-10, ¶ 1].

22 [Id. at ¶ 2].

23 [Id. at ¶ 3].

December 2021, did WestRock ask for—and H&M’s subcontractor perform—levelling

and filling of the dumpster area.24 Again like Ferguson, Nelson’s statements are not

conclusory, but factual recounts of matters that Nelson personally knew in his role

as H&M’s supervisor. True, that unlike Ferguson, Nelson’s affidavit does not

explicitly state it is based on personal knowledge. But as the Fifth Circuit held those

“magic words” are not necessary, and contextual cues—Nelson’s role and his length

of service—suggests he had personal knowledge of the items he recounts. DIRECTV,

420 F.3d at 530. Therefore, Nelson’s affidavit is also permissible, and the Court will

rely on it as well.

2. The MCA and the ECA Could be Admitted at Trial

“At the summary judgment stage, evidence need not be authenticated or

otherwise presented in an admissible form.” Maurer v. Indep. Town, 870 F.3d 380,

384 (5th Cir. 2017) (citing Fed. R. Civ. P. 56(c)). “After a 2010 revision to Rule 56,

materials cited to support or dispute a fact need only be capable of being presented

in a form that would be admissible in evidence.” Id. (citation omitted); see also Fed.

R. Civ. P. 56 2010 advisory committee note. The MCA and the ECA satisfy this test.

Both Ferguson’s and Nelson’s affidavits mentioned the MCA.25 Thus, as H&M

points out, either Ferguson or Nelson can be called, at trial, to authenticate and admit

the MCA.26 As such, the MCA is “capable of being presented,” at trial, in an

admissible form, and, therefore, may be used at this stage. Maurer, 870 F.3d at 384.

24 [Id.].

25 [Doc. No. 42-6, ¶ 2]; [Doc. No. 42-10, ¶ 2].

26 [Doc. No. 45, p. 5].

Similarly, WestRock provided H&M the ECA as part of this suit’s “Initial

Disclosures.”27 And, as H&M avers, the Court has no reason to doubt why H&M

cannot call a WestRock employee to the stand, at trial, to authenticate the ECA.28 As

such, the ECA too is “capable of being presented,” at trial, in an admissible form, and,

therefore, the Court may use it in resolving H&M’s Motion for Summary Judgment.

Maurer, 870 F.3d at 384.

C. Merits

1. Negligent Hiring, Training, and Supervising Claim

Louisiana law recognizes the tort of negligent hiring, training, and supervising

of an employee by an employer. Pelitire v. Rinker, 270 So. 3d 817, 837 (La. Ct. App.

2019), writ denied, 279 So. 3d 378 (La. 2019). Louisiana’s general duty-risk analysis

governs this tort, so “the plaintiff bears the burden of proving each of five separate

elements: duty, breach of duty, cause-in-fact, scope of liability or scope of protection,

and damages.” Id. (citation omitted).

Louisiana has recognized that employers have a duty to “exercise reasonable

care in hiring, retaining, and supervising employees.” Brown v. City of Alexandria,

No. 17-CV-0798, 2019 WL 1119578, at *4 (W.D. La. Mar. 8, 2019) (quoting Roberts v.

Benoit, 605 So. 2d 1032, 1041 (La. 1992)). But “the majority of the Louisiana appellate

courts only apply the duty of reasonable care in hiring, training, and supervision to

an employer who ‘hires an employee who in the performance of his duties will have a

“unique opportunity” to commit a tort against a third party.’” Id. (collecting cases).

27 [Id.].

28 [Id.].

In Brown, another judge of this Court surveyed Louisiana caselaw and listed,

albeit non-exhaustively, situations where Louisiana courts found employees had a

“unique opportunity” to commit torts. The first category is hotel employees because

they “have access to guests’ hotel rooms, which are ‘equivalent to a guest/visitor’s

home during the time the guest/visitor is staying at the hotel.’” Id. (quoting Jackson

v. Ferrand, 658 So. 2d 691, 700 (La. Ct. App. 1995)). The second group is college

instructors because “a college instructor maintains a position of authority over his or

her students.” Id. (citing Harrington v. Louisiana State Bd. of Elementary &

Secondary Educ., 714 So. 2d 845, 851 (La. Ct. App. 1998)). The third class are

“employee[s] who would be working with and handling guns.” Id. (quoting Griffin v.

Kmart Corp., 776 So. 2d 1226, 1231 (La. Ct. App. 2000)). Relying on these examples,

the Brown court refused to hold theater ushers or “any job where an employee has

access to patrons is one that presents a ‘unique opportunity’ to commit a tort.” Id.

H&M argues Brown is controlling here. Specifically, H&M argues that since

the work they performed at the paper mill “was limited to routine maintenance of the

grounds and roads of the mill,” Fowler “cannot show that H & M’s work” was “of such

a nature as to present its employees with a unique opportunity to cause harm to

Plaintiff or others.”29 The Court agrees.

Fowler has shown nothing to suggest H&M’s employees at the paper mill had

“a ‘unique opportunity’ to commit a tort against a third party.” Id. Nor has Fowler

argued against adopting Brown. The Court finds Brown persuasive and controlling.

29 [Doc. No. 42-1, pp. 13–14].

Thus, the Court holds Fowler cannot prove all the elements of his negligent hiring,

training, or supervising claim, and, so, H&M’s Motion is GRANTED for that claim.

2. Unreasonably Unsafe Condition (Negligence) Claim

Fowler’s complaint alleges H&M caused Fowler’s injury by negligently

“creating, allowing to be created, and/or encouraging to be created, the unreasonably

unsafe condition and not remedying the same” at the dumpster area.30 H&M asserts

this claim fails because it, as an independent contractor, had no duty to Fowler,

another independent contractor’s employee.31

Louisiana law recognizes the tort of negligence. See La. Civ. Code Ann. art.

2315(A) (2025). For Fowler to prove negligence under Louisiana law, he must show

that: (1) H&M’s conduct was the cause in fact of his harm, (2) H&M owed a duty of

care to Fowler, (3) the duty was breached, and (4) the risk was in the scope of harm

afforded by the duty. Goree v. City of Bastrop, 763 F. Supp. 3d 772, 782 (W.D. La.

2025) (quoting Batiste v. Theriot, 458 F. App’x 351, 360 (5th Cir. 2012) (unpublished)).

“Whether the defendant owes a duty is a threshold question and is a question of law.”

Lemann v. Essen Lane Daiquiris, Inc., 923 So.2d 627, 633 (La. 2006). Crucially, as

the Fifth Circuit—and every federal district court in Louisiana—held “one

independent contractor owed no duty to another independent contractor’s employee

where it does not employ, share a contract, or actually supervise the plaintiff.”

Campbell v. Helmerich & Payne, Inc., 763 F. Supp. 3d 748, 756 & n.62 (M.D. La. 2025)

(emphasis added) (collecting cases).

30 [Doc. No. 22, ¶ 6].

31 [Doc. No. 42-1, pp. 6–9].

H&M argues that since they did not employ, contract with, or supervise

Fowler, they owed no duty to him.32 The Court agrees.

Fowler, in his deposition, stated that he was only employed by Waste

Connections when the accident occurred.33 As such, he was not employed by H&M at

that time. Fowler also testified that the two individuals he named as his supervisors,

John Obed and Donnie Monroe, were Waste Connections employees.34 And he

specifically stated H&M never supervised or instructed his work, only H&M or

WestRock did so.35 Thus, H&M did not supervise Fowler. Finally, the records indicate

Waste Connections was not a party to the MCA between H&M and WestRock,36 and,

likewise, H&M was not a party to the ESA between Waste Connections and

WestRock.37 Therefore, H&M and Waste Connections had no contractual

relationship, and, consequently, there was none between H&M and Fowler.

Since H&M did not employ, hire on contract, or supervise Fowler, they had no

duty to him. Campbell, 763 F. Supp. 3d at 756. The Court does not address arguments

as to the other elements. “[I]f it is not necessary to decide more, it is necessary not to

decide more.” PDK Lab’ys., Inc. v. United States DEA, 362 F.3d 786, 799 (D.C. Cir.

2004) (Roberts, J., concurring in part and concurring in judgment). So, Fowler’s

negligence claim against H&M fails, and H&M’s Motion is GRANTED for that claim.

32 [Id. at p. 9].

33 [Doc. No. 42-5, pp. 33, 43].

34 [Id. at pp. 39, 42].

35 [Id. at p. 128].

36 [Doc. No. 42-7, p. 3].

37 [Doc. No. 42-11, p. 1].

3. Premises Liability Claim

Louisiana law imputes liability on owners for harm caused by things in their

custody. La. Civ. Code Ann. art. 2317 (2025). To establish premises liability under

Louisiana law, Fowler must prove that: (1) the property that caused Fowler’s damage

was in H&M’s custody; (2) the property had a vice or defect that presented an

unreasonable risk of harm; (3) H&M had actual or constructive knowledge of the risk

posed by the defect; and (4) the defect caused Fowler’s damages. Trayanoff v. Omni

Hotels Mgmt. Corp., 408 So. 3d 221, 227 (La. Ct. App. 2024) (collecting cases), writ

denied, 404 So. 3d 654 (La. 2025). “A plaintiff's failure to prove even one of these

factors will defeat his or her negligence claim.” Id.

Relevant here is the first factor: custody. “Custody, distinct from ownership,

refers to a person's supervision and control (garde) over a thing posing an

unreasonable risk of harm.” Nedley v. City of Alexandria, 405 So. 3d 1177, 1180 (La.

Ct. App. 2025) (citation omitted). “And the test for determining custody or control is

‘whether the defendant had the right of direction or control over the thing and what,

if any, benefit the defendant derived from the thing.’” Id. (citation omitted).

H&M argues that pursuant to the above standards, they did not have custody

of the dumpster area at the time Fowler was injured.38 Specifically, H&M argues they

did not exercise control or direction over the dumpster area because, before Fowler’s

accident, they only performed “infrequent clearing and disposal of debris” at the

site.39

38 [Doc. No. 42-1, pp. 14–15].

39 [Id. at p. 14].

Fowler contends that H&M’s reliance on their contractual and business

formalities is misguided, and that H&M admitted to maintaining the paper mill’s

grounds.40 Fowler also makes a plethora of other arguments to suggest there are

factual disputes at issue.41 None of the additional arguments are relevant.

H&M cites to Nelson’s and Ferguson’s affidavits, where they state that at the

time Fowler was injured, H&M did not perform daily, frequent, routine work at the

dumpster area, which would make them have control or direction over that site.42

Fowler presents nothing to rebut this evidence. Nor does he provide any evidence

suggesting H&M created the allegedly unsafe conditions. Worst for Fowler, however,

is his own deposition testimony where he stated WestRock once came in and fixed the

dumpster area, which solidifies the finding that WestRock—not H&M—exercised

control and, therefore, custody over the dumpster area. Accordingly, the Court

concludes Fowler cannot prove H&M exercised custody over the dumpster premises,

so Fowler’s premises liability claim also fails. As such, H&M’s Motion is GRANTED

as to that claim.

To sum, the Court finds there are no material facts at issue on any of Fowler’s

claims against H&M—negligent hiring, training, and supervising; negligence; and

premises liability—and that H&M is entitled to judgment as a matter of law on each

claim. So, the Court grants H&M’s Motion in its entirety.

40 [Doc. No. 44, pp. 4, 5].

41 [Id. at p. 6].

42 [Doc. No. 42-6, ¶ 3]; [Doc. No. 42-10, ¶¶ 2–3].

III. Conclusion

For all these reasons,

IT IS ORDERED, ADJUDGED, AND DECREED that H&M’s Motion for

Summary Judgment [Doc. No. 42] is GRANTED, and Fowler’s claims against H&M

are DISMISSED WITH PREJUDICE.

MONROE, LOUISIANA, this 16th day of March 2026.

TERRY A. Dou

U STATES DISTRICT JUDGE

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