# Opinion

> District Court, E.D. Louisiana · April 24, 2026

URL: https://www.frixlaw.com/law-library/cases/11318096

## Case

- **Full name:** Charles Bates and Terrance Antoine v. Barriere Construction Co., LLC and John Doe
- **Court:** District Court, E.D. Louisiana
- **Decided:** April 24, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CHARLES BATES AND * CIVIL ACTION NO. 25-1098
TERRANCE ANTOINE
* JUDGE ELDON E. FALLON
VERSUS
* MAGISTRATE JUDGE
BARRIERE CONSTRUCTION CO., LLC, KAREN WELLS ROBY
AND JOHN DOE *
* * * * * * *

ORDER & REASONS

Before the Court are two motions for summary judgment. Plaintiffs Charles Bates and
Terrance Antoine (“Plaintiffs”) filed a Motion for Partial Summary Judgment on the Issues of
Duty and Breach. R. Doc. 13. Defendant Barriere Construction Co., LLC (“Barriere”) filed a
Motion for Summary Judgment seeking dismissal of all of Plaintiffs’ claims. R. Doc. 15. The
parties oppose each others’ motions, R. Docs. 16, 17, and Defendant filed a reply in support of
its motion, R. Doc. 18. Considering the record, briefing, and applicable law, the Court now rules
as follows.
I. BACKGROUND
This is a negligence case. According to the undisputed facts on the summary judgment
record, Plaintiffs were driving eastbound on North Claiborne Avenue in the late evening hours of
December 10, 2023, when an asphalt roller travelling against the flow of traffic struck their
vehicle. R. Docs. 13-1 at 3; 15-2 at 2–3. Defendant Barriere owned this Caterpillar CB10
Asphalt Roller (the “asphalt roller”), and the parties acknowledge that there is no evidence that
the driver of the asphalt roller was a Barriere employee. R. Docs. 13-1 at 3; 15-2 at 2–3. Instead,
the parties agree that a thief had stolen the asphalt roller from a nearby equipment staging area.
R. Docs. 13-1 at 3; 15-2 at 2–3.
At the time of this accident, but during regular working hours, Barriere was in the process
of performing activities related to its contract with the City of New Orleans for the “Bayou St.
John Fairgrounds Seventh Ward Group B Project.” R. Doc. 15-2 at 1. When not in use, Barriere
stored its equipment in a nearby “equipment staging area” underneath a highway overpass and on

Louisiana Department of Transportation property. R. Doc. 13-1 at 2. The staging area did not
have video surveillance, fencing, or security guards present to monitor the stored equipment. R.
Doc. 15-2 at 2–3, 5. It is from this staging area that the thief stole the asphalt roller. Id. at 2.
Barriere’s internal policies instruct that its equipment left unattended at night, like the
asphalt roller here, should be placed together in a well-lit area, have vandal guards, and have
their master switches turned off. R. Doc. 13-1 at 4. About four months before the accident,
Barriere marked that this asphalt roller did not have vandal guards. Id. While there is no specific
evidence in the summary judgment record that Barriere’s internal safety policies were not
followed on the last working day immediately proceeding this accident, the undisputed evidence
shows that a third party was able to gain access to and operate the asphalt roller. R. Doc. 15-2 at

2. Plaintiffs now seek to hold Barriere liable for its negligence in securing the asphalt roller prior
to leaving it in the staging area.
II. PRESENT MOTIONS
a. Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs ask the Court to find that Defendant owed them a duty and breached that duty,
leaving to the jury the questions of causation, scope of duty, and damages. R. Doc. 13.
Specifically, they argue that Barriere owed the general public a duty to protect against the
criminal acts of third parties because the criminal act at issue here—the stealing of a large piece
of machinery—is highly foreseeable and there is a low burden of prevention. R. Doc. 13-2 at 3–
5. Separately, they argue that Barriere’s contract with the City of New Orleans establishes
contractual duty because it requires Barriere to “take all reasonable and proper precautions to
protect the public.” Id. at 5. Plaintiffs also aver that Defendant failed to adhere to its own internal
safety specifications establishes that Barriere breached its duty to prevent the theft of its roller.

Id. at 6–8. For example, they cite to evidence purportedly establishing that Barriere knew this
roller was not equipped with a vandal guard months before this incident and, flouting its internal
safety standards, failed to ever add a vandal guard to this roller. Id. Therefore, considering the
evidence submitted by Plaintiffs that they claim cannot be disputed by Defendant, Plaintiffs ask
the Court grant summary judgment in their favor on the issues of duty and breach. Id. at 9–10.
Defendant opposes the motion. R. Doc. 17. As a threshold issue, it contends that any facts
cited from the deposition of Barriere’s corporate representative, Mr. Lynn Meades, in Plaintiffs’
statement of facts, R. Doc. 13-1, should be stricken from the record because Plaintiffs did not
attach a copy of the deposition to its motion. Id. at 1. The Court will disregard the portions of
Plaintiffs’ statement of facts, R. Doc. 13-1, which rely upon Mr. Meades’s deposition for

purposes of the factual background section of this motion. It will, however, exercise its ability to
consider the testimony in assessing both motions since the complete transcript is in the record.
Fed. R. Civ. P. 56(b)(3) (“The court need consider only the cited materials, but it may consider
other materials in the record.”).
Turning to the merits, Barriere generally argues that it owes no duty to Plaintiffs to
protect against the criminal acts of third parties and that, even if it did, Plaintiffs’ suffered harm
does not fall within the scope of its duty because this crime was not foreseeable. Id. at 6–8. It
stresses that business owners are not obligated to protect customers off of their premises and
outside of business hours—two facts present in this case. Id. at 9–10. Separately, it argues that its
construction contract with the City of New Orleans does not impose an applicable duty in this
case. Id. at 11–13. Finally, it submits that Plaintiffs did not submit any evidence Barriere
breached its duty. Id. at 13–16.
b. Defendant’s Motion for Summary Judgment

Defendant moves for summary judgment on all of Plaintiff’s claims. R. Doc. 15. First, it
asserts that Plaintiffs, who alleged in their petition for damages that Barriere could be vicariously
liable for the actions of the asphalt roller operator, have no proof that the operator was acting
within the scope of their employment with Barriere. R. Doc. 15-3 at 5–6. Thus, they ask that
Plaintiffs’ claims premised on vicarious liability or liability for negligent supervision be
dismissed. Id. The only remaining claim, therefore, would be direct negligence against Barriere.
Relying on Posecai v. Wal-Mart Stores, Inc., 99-1222 (La. 11/30/99), 752 So. 2d 829, Defendant
presses that Plaintiffs cannot demonstrate that Barriere was directly negligent for this third
party’s actions because (1) it owed no duty to these Plaintiffs because there exists no general
duty to protect others from the criminal activities of third persons, and this kind of act was not

foreseeable; (2) there is no evidence that Barriere breached a duty; and (3) there is no evidence
that Barriere was the legal cause of Plaintiffs’ injuries. Id. at 7–15.
Plaintiffs oppose the motion. R. Doc. 16. Importantly, Plaintiffs state that they only
intend to press their claim that “Barriere was independently negligent in failing to secure a
dangerous instrumentality . . . against foreseeable unauthorized use.” Id. at 5. And in support of
that direct negligence claim, Plaintiffs cite multiple disputed facts are present as to whether
Defendant breached a duty to them and whether their injuries were within the scope of
Defendant’s duty. Id. at 3–5. They also contend that the theft of the asphalt roller is not a
superseding cause and the Posecai balancing test weighs in their favor for the denial of summary
judgment. Id. at 6–7. Finally, Plaintiffs distinguish a case involving the theft of a car, using the
analysis to highlight the disputed facts present in this case. Id. at 7–9.
Defendant replied, largely reiterating its original arguments. R. Doc. 18.
III. LEGAL STANDARD

Summary judgment is proper when “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). The court must
view the evidence in the light most favorable to the nonmovant. Coleman v. Hous. Indep. Sch.
Dist., 113 F.3d 528, 533 (5th Cir. 1997). Initially, the movant bears the burden of presenting the
basis for the motion; that is, the absence of a genuine issue as to any material fact or facts.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to
come forward with specific facts showing there is a genuine dispute for trial. Fed. R. Civ. P.
56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). A fact is
“material” if its resolution in favor of one party may affect the outcome of the case. Saketkoo v.
Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 997 (5th Cir. 2022). “A dispute about a material fact

is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation
omitted).
IV. DISCUSSION
Plaintiffs ask that the Court grant summary judgment in their favor and find that Barriere
owed them a duty and that they breached that duty. R. Doc. 13. Defendant asks that the Court
grant summary judgment on all of Plaintiffs’ claims because, inter alia, their injuries fall outside
the scope of any arguable duty owed by Barriere to Plaintiffs. R. Doc. 15. For the following
reasons, the Court grants in part and denies in part each of the parties’ motions. Plaintiffs will
proceed to trial on their direct negligence claims.
A. Plaintiffs’ Abandonment of Certain Claims
Plaintiffs’ petition lists three negligence theories against Barriere: “[1] Negligent hiring,

training, supervision, and retention of its driver[, 2] Failing to implement and enforce safe
operational practices for their construction equipment[, and 3] Inadequate oversight of its
employees and failure to secure traffic conditions.” R. Doc. 1-1 at 2. Despite asserting these
three theories at the pleading stage, now, at the summary judgment stage, Plaintiffs state that
they only intend to press their claim that “Barriere was independently negligent in failing to
secure a dangerous instrumentality . . . against foreseeable unauthorized use.” Id. at 5. Indeed,
they “do not contend that Barriere is vicariously liable for the act of John Doe,” the unidentified
operator of the asphalt roller. Id. Therefore, the Court will grant Defendant’s summary judgment
motion as to its request to dismiss Plaintiffs’ negligent hiring, training, supervision and retention
and inadequate oversight claims. The only remaining claim is Plaintiffs’ direct negligence claim

against Barriere.
B. General Negligence
Louisiana Civil Code art. 2315 provides that “[e]very act whatever of man that causes
damages to another obliges him by whose fault it happened to repair it.” This general negligence
statute utilizes the standard duty-risk analysis, which requires that the plaintiff prove the
following five elements:
(1) the defendant had a duty to conform his conduct to a specific
standard (the duty element); (2) the defendant’s conduct failed to
conform to the appropriate standard (the breach 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) the
actual damages (the damages element).

Lemann v. Essen Lane Daquiris, Inc., No. 2005-1095 (La. 3/10/06), 923 So. 2d 627, 633 (citing
Fowler v. Roberts, 556 So. 2d 1, 4 (La. 1989), reh’g granted on other grounds and original
opinion reinstated as supplemented, 556 So. 2d at 13 (La. 1990)).
Here, Defendant takes issue with each element but the damages element. See R. Doc. 15.
It primarily argues that, under Posecai, it had no duty to protect Plaintiffs from the third party’s
criminal act here because the crime was not foreseeable. See id. Plaintiffs submit that the Posecai
foreseeability balancing test weighs in their favor, allowing this Court to conclude that Barriere
owed them a duty as a matter of law to protect them against this criminal activity because it was
foreseeable. See R. Docs. 13, 16. The Court, however, finds that Posecai is not applicable to this
case.
a. Inapplicability of Posecai
Both sides categorize this case as one that falls within the gambit of Posecai, the
Louisiana Supreme Court case that announced for the first time the Supreme Court’s answer to
the question of “whether business owners owe a duty to protect their patrons from crimes
perpetrated by third parties.” No. 99-1222, 752 So. 2d at 766. But Plaintiffs are not Defendant’s
patrons, nor any similarly situated invitee. Instead, this case concerns whether Defendant was
negligent with respect to its movable property stored in a publicly accessible area.

In Posecai v. Wal-Mart Stores, Inc., the Louisiana Supreme Court held that Wal-Mart
owed no duty to the plaintiff, who was robbed at gunpoint in the parking lot of the Kenner Sam’s
Wholesale Club, because the crime was not reasonably foreseeable by the business because there
were no similar enough criminal events that could give rise to a heightened duty of care. No. 99-
1222 (La. 11/30/99), 752 So. 2d 762, 768. Grounded in the principal that “although business
owners are not the insurers of their patrons’ safety,” the Court determined that “they do have a
duty to implement reasonable measures to protect their patrons from criminal acts when those
acts are foreseeable.” Id. at 766. It adopted a balancing test, which instructs courts that are
considering whether to impose a duty to balance “[t]he foreseeability of the crime risk on the

defendant’s property and the gravity of the risk.” Id. at 768. Duty will attach if the crime was
foreseeable. Id.
The Louisiana Supreme Court recently assessed a negligence action involving liability
for the criminal actions of a third party where Posecai did not apply. In Doe v. McKesson, the
Court answered certified questions from the Fifth Circuit, one of which asking “Whether
Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to
negligently precipitate the crime of a third party?” No. 2021-00929 (La. 3/25/22), 339 So. 3d
524, 531. In that case, the plaintiff police officer brought negligence claims against the organizer
of a protest after the officer was struck in the face at the protest by a piece of concrete or similar
rock-like object by an unidentified participant, injuring him. Id. at 527. The Court reasoned that,

at the pleading stage, the officer plausibly alleged that the protest organizer breached his duty of
reasonable care in organizing the demonstration. Id. at 531. Specifically, it noted that “[b]y
ignoring the foreseeable risk of violence that his actions created, [the organizer] failed to
exercise reasonable care in conducting his demonstration.” Id.
The duty identified by the Supreme Court under those circumstances, though, “[wa]s not
. . . a ‘duty to protect others from the criminal activities of third persons.’” Id. at 521–32 (quoting
Posecai, 752 So.2d at 766). “Louisiana does not recognize such a duty.” Id. at 532. “It does,
however, recognize a duty not to negligently cause a third party to commit a crime that is
foreseeable consequences of negligence.” Id. (citing Brown v. Tesack, 566 So. 2d 955 (La.
1990)). Distinguishing these theories, it noted that the Posecai line of cases, for example, stands
for the proposition that “a business owner has no duty to provide security guards in its parking
lot if there is a very low risk of crime.” Id. (citing Posecai, 752 So.2d at 760). The other rule,
derived from Brown v. Tesack, stands for the proposition that “a school can be liable when it

negligently disposes of flammable material in an unsecured dumpster and local children use the
liquid to burn another child.” Id. (citing Brown, 566 So. 2d at 957). In applying the Brown rule,
the Court in Doe reasoned that “[the organizer] owed [the officer] a duty not to negligently
precipitate the crime of a third party” because “a jury could plausibly find that a violent
confrontation with a police officer was a foreseeable effect of negligently directing a protest.” Id.
The instant case fits more with cases like Doe v. McKesson and Brown, which apply
when a defendant’s initial allegedly negligent act opens the door for a third party to cause the
plaintiff harm, than it does with Posecai, which applies when criminal activity occurs on or near
a business’s property. For example, in Brown, a school employee disposed of canisters of
flammable fluid in a dumpster which were later taken out of the dumpster by local children, who

played with the fluid by lighting things on fire. 556 So. 2d at 956. A “fireball” struck the
plaintiff, injuring him and prompting him to sue the school board, arguing that it had a duty to
properly dispose of the flammable fluid. Id. The Louisiana Supreme Court agreed, holding that
the school had a duty to properly dispose of the flammable fluid because of the nature of the
fluid and the risk of harm. Id. at 957. The Court reasoned that the risk of children playing with
the liquid was “not only foreseeable but foreseen” because the school had written policies
addressing proper storage of the liquid; “[c]learly, these precautions were taken to ensure that the
fluid did not fall into the hands of third parties—possibly children.” Id.
Here, the asphalt roller is analogous to the flammable liquid in Brown. Both items are
potentially dangerous pieces of movable property that were placed in publicly accessible areas
by the defendants. Both items were removed from the publicly accessible areas, where they were
placed by the defendants, by third parties who used the property to allegedly cause harm to the

plaintiffs. Given these similarities, it is clear to the Court that Brown and these kinds of cases,
and not Posecai and its progeny, are applicable here. This case does not concern criminal activity
that occurred at one of Barriere’s physical business locations to one of its patrons. The Court will
proceed with assessing Plaintiffs’ direct negligence claim through the general negligence lens.
b. Duty vs. Scope of Duty in Louisiana Law
The threshold question in any negligence action, and the first question a court should
consider, is whether the defendant owed the plaintiff a duty. Lemann, No. 2005-1095, 556 So. 2
at 13. 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.” Faulkner v. The McCarty Corp., No. 02-1337 (La. App. 4 Cir. 6/11/03), 853

So.2d 24, 27 (quoting Perkins v. Entergy Corp., No. 98-2081 (La. App. 1 Cir. 12/28/99), 756
So.2d 388, 403). Duties may also arise from the nature of the undertaking or by contract. Harris
v. Boh Bros. Constr. Co., No. 2020-0248 (La. App. 4 Cir. 5/26/21), 322 So. 3d 397, 412.
Defendant asserts that the legal standard for duty includes the inquiry “of whether the
duty allegedly breached extends to the risk of harm suffered by the plaintiff.” R. Doc. 15-2 at 7
(citing Price v. North, No. 2021-0236 (La. App. 1 Cir. 10/18/21), 331 So. 3d 959, 968). But this
inquiry targets the scope of the duty owed by the defendant to the plaintiff—not simply the
existence of a duty. When the Louisiana Supreme Court adopted the duty/risk approach to
negligence, it structured the elements such that the “Louisiana Duty/Risk method of analysis
turned the proximate cause question into a question for the judge, rather than a question for the
jury.” Maraist, Galligan, Church, & Corbett, La. Tort L. § 5.02 (perm. ed., rev. vol. 2026). But as
the Louisiana Tort Law Treatise tracks, Louisiana law has begun to return the fact-intensive and
case-specific inquiry of the scope of liability to the factfinder, which is how the Restatement

(Third) of Torts: Liability for Physical and Emotional Harm structures the general negligence
elements. See id. at § 5.02[4], [5], & [7].
In a case involving the application of Posecai, the Louisiana Supreme Court recently
noted the importance of distinguishing the duty and scope of duty inquiries, noting that “the
Posecai Court, too, merged the concept of duty and scope of duty into a single consideration.”
Campbell v. Orient-Express Hotels La., Inc., No. 2024-00840 (La. 3/21/25), 403 So. 3d 573,
583. The Court explained that Posecai’s “inclusion of ‘reasonable foreseeability’ in the initial
determination of an innkeeper’s duty to its guests is antithetical to the broad principle of fault of
Article 2315 and the long-recognized special relationship between an innkeeper and its guests
which warrants the imposition of a duty.” Id. It then continued, however, to explain that the

Posecai court still analytically included the crucial foreseeability-of-crime-risk inquiry “in the
scope-of-duty inquiry, rather than the determination of duty at the outset.” Id. at 584. The Court
declared that “[w]hether the [defendant], as an innkeeper, owed a duty to its guests, including
[the plaintiff], is a legal issue not defined by facts and circumstances.” Id. It then found that the
defendant “owed a duty to take reasonable precautions to protect its guests from criminal acts of
third parties” and considered the foreseeability issue separately in the scope-of-duty inquiry. Id.
This Court will follow Campbell and distinguish duty and scope of duty in its assessment
of the general negligence elements in this case. “When judges decide both the broad duty
question and the scope of the risk question, they blur the line . . . [and] combine or conflate duty
and scope of liability.” La. Tort L. § 5.02. This distinction is particularly important here, where
Plaintiffs have asked this Court to grant summary judgment in their favor on the element of duty.
See R. Doc. 13. The Court will first address the first element, the duty element, and will then
proceed to element four and consider the scope-of-duty owed in this case.

1. Element 1: Duty
As previously stated, duty is a question of law that can be resolved by a judge at the
summary judgment stage. McKesson, No. 2021-00929, 339 So. 3d at 531 (quoting Boykin v. La.
Transit Co., 707 So. 2d 1225, 1231 (La. 1998)) (“There is a ‘universal duty on the part of the
defendant in negligence cases to use reasonable care so as to avoid injury to another.’”). “ In
deciding whether to impose a duty in a particular case, the court must make a policy decision in
light of the unique facts and circumstances presented.” Lemann, No. 2005-1095, 923 So. 2d at
633 (citing Socorro v. City of New Orleans, 579 So. 2d 931, 938 (La. 1991)). “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.; see also Claborne v. Hous.

Auth. of New Orleans, No. 2023-0214 (La. App. 4 Cir. 3/21/24), 401 So. 3d 669, 682–83. “The
court may take ‘various moral, social, and economic factors’ into account when determining
whether to impose a duty,” including “(1) the fairness of imposing liability; (2) the economic
impact on the defendant and on similarly situated parties; (3) the need for an incentive to prevent
future harm; (4) the nature of defendant’s activity; (5) the potential for an unmanageable flow of
litigation; (6) the historical development of precedent; and (7) the direction in which society and
its institutions are evolving.” Id. (quoting In re New Orleans Train Car Leakage Fire Litig., 00-
0479, p. 47 (La. App. 4 Cir. 6/27/01), 795 So. 2d 364, 394) (cleaned up).
The Court finds that Barriere owed a duty to use reasonable care in storing its asphalt
roller in a way that would protect the public from potential injury. General principals of fault
support this conclusion. See Brown, 566 So. 2d at 957 (“The duty to properly dispose of the
[flammable] fluid arose because the liquid is flammable and the risk of harm . . . was specifically

recognized by the [school b]oard.”). Here, Defendant acknowledges they own a 30,000-pound
asphalt roller, R. Doc. 13-1 at 2, that uses an industry-standard key that can start any piece of
equipment produced by that manufacturer, R. Doc. 15-2 at 5, and that these universal keys are
sold to the general public, id. Barriere knew of the risks associated with these risk-of-harm
related aspects of the asphalt roller because it had internal procedures for storing its equipment
safely, which included “staging/grouping the construction equipment together in a well-lit area,
removing the keys from the equipment, turning off master switches to the equipment, and
installing ‘vandal guards’ on the equipment.” R. Doc. 15-2 at 2. Barriere’s own policies manifest
a self-imposed duty to properly store their equipment in a way to prevent it being stolen. See
Brown, 566 So. 2d at 957. The general principles of fault and policy considerations caution that

Barriere owed a duty to the public to properly store its heavy machinery when not in use. The
Court will grant Plaintiffs’ motion on the element of duty.
2. Element 4: Scope of Duty
“The fourth element [of a negligence claim], 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.’” Harris, No. 2020-0248, 322 So. 3d at
415 (quoting Chaisson v. Avondale Indus., Inc., No. 05-1511, p. 24 (La. App. 4 Cir. 12/20/06),
947 So. 2d 171, 188). “Although for years the issue of whether legal cause was a fact issue or a
legal issue ‘baffled scholars and courts,’ . . . the Louisiana Supreme Court confirmed that legal
cause is a mixed question of law and fact for the jury . . . to decide.” Chatman v. S. Univ. at New
Orleans, No. 2015-1179 (La. App. 4 Cir. 7/6/16), 197 So. 3d 366, 375 (citing Parents of Minor
Child v. Charlet, No. 13-2879 (La. 4/4/14), 135 So. 3d 1177, 1181). “[L]egal causation is a
question for the jury unless reasonable minds could not differ.” Thibodeaux v, Equinor USA

E&P, Inc., No. 22-15, 2023 WL 6165702, at *18 (M.D. La. Sept. 21, 2023) (citing Parents, No.
13-2879, 135 So. 3d at 1181).
“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.” Chatman, No. 2015-1179, 135 So. 3d at 379 (citing
Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 294 (La. 1993)). In conducting this
duty-risk analysis, the Louisiana Supreme Court has clarified that the ease-of-association inquiry
encompasses the idea of foreseeability, but is not based on foreseeability alone. Roberts v.
Benoit, 605 So. 2d 1032, 1045 (La. 1991). Overall, 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, No. 05-1511, p. 24, 947 So.2d at 188 (quoting Roberts, 605 So.2d at
1032).
Here, disputed facts preclude summary judgment on the scope of duty element. The
Court finds that reasonable minds could differ as to whether Barriere’s alleged negligence in
failing to secure its asphalt roller could be easily associated with the risk of someone stealing the
asphalt roller and driving it into the road adjacent to the staging area. Notably, Plaintiffs submit
evidence that the asphalt roller may have been lacking certain safety features required by
Barriere’s internal policies. For example, Plaintiffs cite to a “Work Order Listing” produced by
Barriere, which lists certain safety and maintenance concerns presumably identified and recorded
by Barriere employees. R. Doc. 13-5 at 22. On August 16, 2023, about four months before the
subject accident, someone noted that the asphalt roller had “NO VANDAL GUARDS.” Id.
Defendant argues that this listing was marked “Completed” on the same day, R. Doc. 17 at 5, but
it cites to no work order in support of that proposition. The jury should determine, after hearing

the evidence, what “Completed” means in that context. Disputed facts exist that preclude
summary judgment. The Court denies Defendant’s motion on the duty and scope of duty
arguments, and now turns to address the parties’ remaining relevant arguments.
c. Element 2: Breach
Plaintiff asks that the Court find that Barriere breached its duty as a matter of law, taking
that question away from the fact-finder at trial. R. Doc. 13 at 6–8. Whether there was a breach of
duty is a question of fact or a mixed question of law and fact. Harris, No. 2020-0248, 322 So. 3d
at 413 (citing Magri v. Jazz Casino Co., L.L.C., No. 19-0064 (La. App. 4 Cir. 6/26/19), 275 So.
3d 352, 358, writ denied, No. 19-01197 (La. 10/15/19), 280 So. 3d 611).
Here, the issue of breach is pregnant with fact, and the Court will not grant summary

judgment on this element. The Court has already identified the disputed facts related to the
vandal guards. Beyond that, Plaintiffs submit Barriere’s internal “Theft and Vandalism Company
Equipment Toolbox Talk,” a document that “ensur[es] our equipment and jobsites are secure”
which is “key to preventing theft and vandalism of company equipment.” R. Doc. 13-5 at 60. For
storing pieces of large equipment, the document instructs employees to “[p]lace all equipment
together in a well-lighted area with some traffic. Install and lock vandal guards to protect
windows and gauges. Accessories for equipment . . . should be secured for the night or put on
service trucks. TURN OFF MASTER SWITCHES!!!!” Id. The parties do not dispute that a
second key, apart from the universal ignition key, is used to turn on and off the master
disconnect switch on the asphalt roller. R. Doc. 15-2 at 5. Additionally, Barriere offers no
evidence that any of its employees completed each of the listed safety items in the Toolbox Talk
document on the day of the incident. Therefore, disputed facts exist as to whether Barriere turned
off this master switch with the second required key before storing the asphalt roller in the staging

area.
Moreover, Barriere’s corporate representative testified that the company knew that the
asphalt roller used a manufacturer-wide universal key, meaning that any manufacturer-
authorized key would start any piece of equipment. R. Doc. 15-8 at 64–65. He also testified that
Barriere had no fencing, cameras, watchmen, or security of any kind at the staging area. Id. at
107. Reasonable factfinders could disagree as to whether Barriere breached its duty to use
reasonable care in storing its asphalt roller in a way that would protect the public from potential
injury by failing to utilize security measures beyond its internal policies. Moreover, reasonable
jurors could disagree as to whether Barriere failed to adhere to its internal standards and
breached its duty to Plaintiffs. The Court denies both summary judgment motions as to the

breach element.
d. Elements 3 and 5: Cause-in-Fact and Damages
Defendant does not argue that Plaintiffs cannot factually support these two elements of
their direct negligence claim. See R. Doc. 15-3. Therefore, the Court will not consider these
elements in its determination. Plaintiffs’ direct negligence claim survives summary judgment,
and the jury will consider all elements except for duty, which the Court has found exists as a
matter of law.
V. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the motions for summary judgment, R. Docs. 13 & 15, are
GRANTED IN PART and DENIED IN PART. Plaintiffs’ motion is GRANTED as to the
element of duty and denied as to all else. Defendant’s motion is GRANTED as to Plaintiffs’
negligent hiring, training, supervision and retention and inadequate oversight claims, and is
denied as to all other arguments. Trial will proceed on Plaintiffs’ direct negligence claim.
New Orleans, Louisiana, this 24th day of April, 2026.

THE HONORABLE ELDON E. FALLON

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11318096. Public record. Not legal advice.