Tyler Renwick v. P N K Lake Charles, L.L.C.

Case: 17-30767 Document: 00514617675 Page: 1 Date Filed: 08/27/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-30767 FILED

August 27, 2018

Lyle W. Cayce

TYLER RENWICK, Clerk

Plaintiff - Appellant

v.

P N K LAKE CHARLES, L.L.C., doing business as L’Auberge du Lac,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Louisiana

Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

Tyler Renwick (“Renwick”) was injured when he fell off a defective ladder

spanning the narrow gap between a casino vessel and hotel owned by PNK

Lake Charles LLC (“PNK”). Renwick was an employee of a subcontractor hired

to clean ventilation equipment on the hotel roof. He sued PNK for damages

under Louisiana law, claiming PNK was liable as both the owner of the

premises and the custodian of the ladder. The district court granted summary

judgment to PNK, however, dismissing all of Renwick’s claims with prejudice.

Renwick appealed. We conclude that genuine fact issues exist as to whether

PNK may be liable for Renwick’s injuries. Accordingly, we REVERSE the

district court’s judgment and REMAND for further proceedings.

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I.

A.

We recite the facts drawing all justifiable inferences in Renwick’s favor

because he was the non-moving party below. TIG Ins. Co. v. Sedgwick James,

276 F.3d 754, 759 (5th Cir. 2002).

Renwick was an employee of PB Technologies LLC (“PB”), a Texas

company that cleans commercial kitchen vents and hoods. In 2007, PB was

hired by general contractor JC Myers (“Myers”) to clean restaurant ventilation

equipment at the L’Auberge du Lac (“L’Auberge”) hotel and casino in Lake

Charles, Louisiana. L’Auberge was owned by PNK. 1

L’Auberge consisted of a floating casino vessel next to a hotel. The

ventilation equipment to be cleaned was located inside the hotel kitchens and

on the hotel’s roof and side. PNK controlled contractor access to the hotel and

casino premises, including the roof areas. During the initial walk-through in

2007, PNK personnel instructed PB how to access the hotel roof: PB’s crew

members would proceed up to the adjacent casino’s roof—situated about 10 feet

below the hotel roof—and from there climb a ladder leaning against the hotel.

The ladder spanned a two-to-three-foot gap between casino and hotel, with a

considerable drop (about 50 feet according to some estimates) to a gangway

below. PNK specified that ladder access from the casino roof was the only way

to reach the vents on the hotel roof, and at that time did not disclose to PB or

Myers any alternate access. During this initial walk-through, there was an old

wooden ladder on the casino roof used to access the hotel roof, but the parties

agree this ladder was subsequently replaced with various fiberglass extension

ladders and so played no role in Renwick’s subsequent accident.

1 Because PNK owned L’Auberge, we use “PNK” to refer interchangeably to PNK,

L’Auberge, and their respective employees, unless otherwise indicated.

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Dissatisfied with the ladder arrangement, PB proposed that PNK

construct a platform to ensure safer access to the hotel roof. PB had its

operations manager, Robert Gee, present PNK with designs for a platform, but

PNK rejected this proposal, citing budget concerns. As a result, over the years-

long course of the cleaning contract, PB crew members would access the hotel

roof via ladders that leaned across the casino-hotel gap and that were typically

tied to a railing on the casino roof. The parties dispute who owned the ladders

and who routinely set them up. They agree, however, that PNK did not

supervise the day-to-day work of PB crew members.

In the early morning hours of July 14, 2015, Renwick climbed a ladder

from the casino roof to the hotel to turn off a ventilation fan on the hotel roof.

Before reaching the hotel roof, however, Renwick fell from the ladder onto the

gangway below, suffering serious injuries. While the precise circumstances of

the accident were murky (Renwick lacked a clear memory of what happened),

it is undisputed that the ladder at issue consisted of only one-half of an

extension ladder and therefore lacked stabilizing feet. As a result, the ladder

apparently slipped out from under Renwick before he reached the hotel roof.

The parties agree that the ladder in question was defective and unsafe. Again,

however, they dispute who owned the ladder and who set it up.

Following Renwick’s accident, PNK showed PB personnel for the first

time an alternate way to reach the hotel roof through the hotel interior. From

that point on, PB crew members began using this new means of access when

performing their cleaning duties.

B.

In September 2015, Renwick sued PNK in federal court, alleging PNK

was negligent under Louisiana Civil Code article 2315 and also liable as the

owner or custodian of a defective thing under article 2317.1. In April 2017, the

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district court granted PNK’s summary judgment motion and dismissed all of

Renwick’s claims with prejudice.

As to negligence, the district court relied on the Louisiana rule that a

premises owner is typically not liable for an independent contractor’s 2

negligence. See generally, e.g., Meaux v. Wendy’s Int’l, Inc., 10-111 (La. App.

5th Cir. 10/26/10), 51 So.3d 778, 784. The court concluded that no genuine fact

dispute triggered any exception to that general rule. Specifically, the court

found no dispute that PNK lacked “operational control” over PB’s work because

the evidence showed, at most, that PNK only identified the “point of access” to

the hotel roof while leaving PB free to “determine[ ] what ladders to use” to

traverse the casino-hotel gap. The court also found no dispute concerning

whether PNK had given “explicit or implicit authorization to an unsafe

practice,” because it found no evidence to show that PNK was aware PB

employees were using defective ladders to access the hotel roof. 3

As to liability for a defective thing, the district court assumed that PNK

had “custody or ‘garde’” of the ladder, but found the evidence undisputed that

the ladder’s defect did not amount to an “unreasonably dangerous condition.”

Specifically, the court relied on undisputed evidence that Renwick failed to

inspect the ladder before using it in violation of PB’s training policies and

federal safety regulations.

2 The district court concluded that under Louisiana law PB qualified as an

independent contractor who had been subcontracted by Meyers to perform the vent cleaning

work at L’Auberge. Renwick contested that conclusion below—arguing that PB instead “took

over a portion of … Meyers’ work”—but the district court rejected Renwick’s argument. It is

unclear whether Renwick appeals that finding, but given our disposition of the other issues

we need not consider it.

3 The court also concluded that PB’s work was not “inherently dangerous,” given

undisputed evidence that “climbing a ladder between the two structures could be performed

safely” if using proper equipment and procedures. See, e.g., Meaux, 51 So.3d at 784 (observing

that a principal may remain liable where contracted work is intrinsically and inherently

dangerous). Renwick does not appeal this conclusion and so we do not consider it.

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Renwick moved for a new trial or, alternatively, to alter or amend the

judgment, which was denied in September 2017. Renwick timely appealed both

the grant of summary judgment and the denial of his post-trial motion.

II.

We review a grant of summary judgment de novo. United States ex rel.

Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008). Summary

judgment is proper only if the pleadings and record materials reveal no genuine

issue as to any material fact. TIG Ins. Co., 276 F.3d at 759 (citing Andersen v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)); FED. R. CIV. P. 56. A

“material” fact is one “that might affect the outcome of the suit under governing

law,” Andersen, 477 U.S. at 248, and a fact issue is “‘genuine’ if the evidence is

such that a reasonable jury could return a verdict for the non-moving party,”

TIG Ins. Co., 276 F.3d at 759 (citing Andersen, supra). If the moving party

initially shows the non-movant’s case lacks support, “the non-movant must

come forward with ‘specific facts’ showing a genuine factual issue for trial.”

TIG Ins. Co., 276 F.3d at 759 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986); Matsushita Elec. Indus. v. Zenith Radio, 475 U.S. 574, 587 (1986); FED.

R. CIV. P. 56(e)). We must view the evidence in the light most favorable to the

non-moving party, drawing “all justifiable inferences … in the non-movant’s

favor.” Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir.

2008); see also Andersen, 477 U.S. at 255 (explaining “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his

favor”) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).

Louisiana’s substantive law applies in this diversity case, and we review

the district court’s determination of Louisiana law de novo. See, e.g.,

Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013) (citations

omitted). In determining Louisiana law, we “should first look to final decisions

of the Louisiana Supreme Court.” Howe ex rel. Howe v. Scottsdale Ins. Co., 204

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F.3d 624, 627 (5th Cir. 2000). To the extent the supreme court has not resolved

an issue, then we “must make an ‘Erie guess’ and ‘determine as best [we] can’

what the Louisiana Supreme Court would decide.” Id. (quoting Krieser v.

Hobbs, 166 F.3d 736, 738 (5th Cir. 1999); Transcontinental Gas Pipe Line Corp.

v. Transportation Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992)). To inform our

Erie guess, we “may look to the decisions of intermediate appellate state

courts,” which provide “‘a datum for ascertaining state law which is not to be

disregarded by a federal court unless it is convinced by other persuasive data

that the highest court of the state would decide otherwise.’” Howe, 204 F.3d at

627 (citing Labiche v. Legal Sec. Life Ins. Co., 31 F.3d 350, 351 (5th Cir. 1994)

(quoting Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967)). 4

III.

Our analysis proceeds as follows. In part A, infra, we address whether

the district court properly granted PNK summary judgment on premises owner

liability. Specifically, we address the exceptions for operational control in part

A.1, and for authorization of an unsafe practice in part A.2. In part B, infra,

we address whether the district court properly granted PNK summary

judgment on liability for a defective thing. Finally, in part C, infra, we address

whether we may affirm on the alternate ground of superseding cause. As

explained below, we reverse the district court’s grant of summary judgment,

finding genuine fact issues on whether PNK may be liable for Renwick’s

injuries as either a premises owner or the custodian of a defective thing. We

4 Louisiana’s substantive law includes Louisiana’s choice-of-law rules. See, e.g., Cole

v. Gen. Motors Corp., 484 F.3d 717, 724 (5th Cir. 2007). The district court correctly concluded

that those rules pointed to Louisiana law, given L’Auberge’s location in Louisiana and the

fact that PNK does business in Louisiana. See LA. CIV. CODE art. 3542 (governing choice of

law in delictual and quasi-delictual actions and considering, inter alia, “the place of conduct

and injury,” the “place of business of the parties,” and “the state in which the relationship …

between the parties was centered”). Neither party contests that ruling.

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decline to affirm on the alternate ground of superseding cause, finding that the

record also raises genuine fact issues as to that doctrine.

A.

Under Louisiana law, a premises owner is generally not liable for

damages caused by the actions of an independent contractor. See generally,

e.g., Meaux, 51 So.3d at 785; Thomas v. A.P. Green Indus., Inc., 2005-1064 (La.

App. 4 Cir. 5/31/06), 933 So.2d 843, 852; see also Davis v. Dynamic Offshore

Res., LLC, 865 F.3d 235, 236 (5th Cir. 2017) (observing “it is well established”

under Louisiana law “that a principal is not liable for the activities of an

independent contractor committed in the course of performing its duties under

the contract”) (internal quotations and citation omitted). That general rule is

subject to exceptions, however. As relevant here, a premises owner may be

liable (1) if he exercises “operational control” over the independent contractor’s

actions, or (2) if he “expressly or impliedly authorizes an unsafe practice.”

Davis, 865 F.3d at 236; see also, e.g., Sandbom v. BASF Wyandotte Corp., 95-

0335 (La. App. 1 Cir. 4/30/96), 674 So.2d 349, 353–54 (noting exceptions to

general rule “when the principal reserves the right to supervise or control the

work of the independent contractor … or gives express or implied authorization

to an unsafe practice”) (and collecting authorities). 5 Here, the district court

ruled that the evidence raised no genuine issue as to the applicability of either

exception, and so granted PNK’s motion for summary judgment. Renwick

urges on appeal that the district court improperly resolved fact disputes

5Liability under these exceptions would arise from the general principle of Louisiana

tort law that “[e]very act whatever of man that causes damage to another obliges him by

whose fault it happened to repair it.” LA. CIV. CODE art. 2315; see also, e.g., King v. Cancienne,

316 So. 2d 366, 367 (La. 1975) (discussing history of article 2315); Meaux, 51 So. 3d at 783

(observing that negligence actions are based on article 2315).

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concerning whether PNK exercised operational control over PB’s activities and

whether PNK authorized an unsafe practice that caused his injuries.

1.

This Court has previously addressed what constitutes operational

control under this branch of Louisiana law. “Operational control exists only if

the principal has direct supervision over the step-by-step process of

accomplishing the work such that the contractor is not entirely free to do the

work in his own way.” Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558,

564 (5th Cir. 2003) (citing LeJeune v. Shell Oil Co., 950 F.2d 267, 270 (5th Cir.

1992); McCormack v. Noble Drilling Corp., 608 F.2d 169, 175 n.9 (5th Cir.

1979)). “It is not enough,” however, that the principal “has merely a general

right to order the work stopped or resumed, to inspect its progress or to receive

reports, to make suggestions or recommendations which need not necessarily

be followed, or to prescribe alterations or deviations.” LeJeune, 950 F.2d at 270

(internal quotations omitted) (citing Landry v. Huthnance Drilling Co., 889

F.2d 1469, 1471 (5th Cir. 1989)). Moreover, “[p]eriodic inspections by a

principal’s ‘company man’ do not equate to that principal retaining control over

the operations conducted by [an independent contractor].” Fruge, 337 F.3d at

564 (citing Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 550 (5th Cir. 1987)).

Rather, there must be “‘control over the operative detail of doing any part of

the work,’” such that the “‘contractor is not entirely free to do the work in his

own way.’” Grammer v. Patterson Servs., Inc., 860 F.2d 639, 644 (5th Cir. 1988)

(quoting RESTATEMENT (SECOND) OF TORTS, § 414, cmt. a (1965)); see also, e.g.,

Klein v. Cisco-Eagle, Inc., 37,398 (La. App. 2nd Cir. 9/24/03), 855 So. 2d 844,

850; and see generally FRANK L. MARAIST & THOMAS C. GALLIGAN, JR.,

LOUISIANA TORT LAW (“Maraist & Galligan”) § 13.02[3], at 13-16 n.47 (2004

ed.) (discussing operational control).

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The district court concluded that Renwick did not point to evidence that

“r[o]se[ ] to the level necessary to find that there is a genuine dispute as to

whether PNK exercised operational control.” In the court’s view, the record

revealed (1) that PNK employees made a “non-binding” recommendation that

PB employees use the original wooden ladder to access the hotel roof; (2) that

PNK and PB had no “discussions” about providing access ladders; (3) that PNK

did not “kn[o]w of any ladders on the roof other than the wooden ladder”; and

(4) that determining which ladders to use was “within the scope of PB’s work

order.” The court therefore concluded there was no evidence creating a genuine

fact issue as to PNK’s operational control.

We disagree. There is record evidence from which a trier of fact could

conclude that PNK exercised operational control over the details of PB’s work

that allegedly led to Renwick’s accident. To begin with, PNK’s facilities

director, Anthony Long, testified that PNK controlled contractor access to the

hotel and casino premises, including the roof areas. More specifically, both PB’s

owner, Paul Barnes, and its operations manager, Robert Gee, testified that

during the initial walk-through in 2007 PNK identified where PB employees

were to access the hotel roof vents (i.e., from the adjacent casino roof) and how

they would do so (i.e., by using ladders secured to the casino roof and leaning

across the casino-hotel gap). When PB objected to this means of access and

proposed designs for a platform, PNK rejected the proposal for budgetary

reasons. Furthermore, PNK expressly told PB that the ladder arrangement

was the only way to access the hotel roof vents; after Renwick’s accident,

however, PNK revealed an alternate means of access through the hotel

interior. 6 Finally (as discussed in greater detail infra), the evidence reveals a

6In its summary judgment motion, PNK did not contest many of these points (at least

for summary judgment purposes). Specifically, PNK did not contest: (1) that during the initial

walk-through “an unidentified employee of L’Auberge allegedly informed PB and JC Myers

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pointed dispute about who provided and set up the fiberglass extension ladders

over the course of the cleaning contract, with PB vigorously asserting that it

did not erect the ladders—including the defective ladder that figured in

Renwick’s accident—and that it found those ladders “always already set up

and tied off” on the casino roof. We emphasize that it is this combination of

evidence—PNK’s control of work-site access, its specific instructions about how

to reach the vents, its rejection of an alternate access route, and the dispute

over who provided the access ladder—that creates a jury issue on operational

control. 7

From this evidence, a fact finder could reasonably conclude that PNK’s

role in the work went beyond “mak[ing] suggestions or recommendations which

need not necessarily be followed,” LeJeune, 950 F.2d at 270, but instead rose

to the level of “control over the operative detail of … the work,” such that the

PB was “not entirely free to do the work in [its] own way.” Grammer, 860 F.2d

at 644 (brackets added). In other words, the evidence would permit the

conclusion that PNK “retained at least some degree of control over the manner

that access to the hotel roof was to be had by use of a ladder from the casino roof”; (2) that

“no other access to the roof was ever disclosed by L’Auberge or known to PB prior to the

accident”; and (3) that “the ladder access was an unsafe means of ingress and egress for which

L’Auberge should be liable.” Instead, PNK argued that “the negligence of PB, JC Myers, and

the Plaintiff himself” superseded any negligence by L’Auberge. We address PNK’s argument

on superseding cause in part C, infra.

7In light of this evidence, we reject the district court’s reasons for granting summary

judgment. The fact that PNK made a “non-binding recommendation” to use the original

wooden ladder is irrelevant; we agree with the district court that this alone would not create

a genuine fact issue on operational control. The pertinent issue, however, is who provided

and set up the different ladder involved in the accident, a matter disputed in the record. And

the facts that PNK denied discussing ladders with PB, disclaimed knowledge of ladders

besides the wooden one, and asserted the choice of ladders was PB’s are not reasons for

granting PNK summary judgment. Instead, they are factual assertions that a jury may or

may not credit, after balancing PB’s contrary evidence that it never provided any ladders and

always found access ladders already set up (including the ladder that allegedly injured

Renwick).

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in which [PB’s] work was done,” and thus exercised operational control.

LeJeune, 950 F.2d at 270 (brackets added). To be sure, a fact finder could

ultimately reach a different conclusion. All we decide is that the evidence—

viewed, as it must be, in the light most favorable to Renwick—would permit a

reasonable trier of fact to resolve the operational control issue either way, and

that the district court therefore erred in granting summary judgment. See, e.g.,

Andersen, 477 U.S. at 253 (explaining that, “[i]f either of the two results … is

fairly possible, [the court] must let the jury decide the matter”).

2.

As indicated above, another exception to the non-liability rule applies

when a premises owner gives “express or implied authorization to an unsafe

practice.” Meaux, 51 So.3d at 785; see also, e.g., Davis, 865 F.3d at 236

(explaining that, under Louisiana law, if “work is done in an unsafe manner,

the [principal] will be liable if he has expressly or impliedly authorized the

particular manner which will render the work unsafe, and not otherwise”)

(citing Ewell v. Petro Processors of La., Inc., 364 So.2d 604, 606–07 (La. App.

1st Cir. 1978)) (brackets added). The district court granted PNK summary

judgment on this ground as well, finding the evidence undisputed that PNK

had not expressly or impliedly authorized an unsafe practice.

We again disagree. The evidence recounted above could also permit a

reasonable fact finder to conclude that PNK authorized the unsafe practice

that allegedly resulted in Renwick’s injury. That is, a fact finder could

reasonably conclude that PNK directed PB employees to access the hotel roof

vents at a specific location (from the casino roof), using a specific means of

access (ladders leaning across the casino-hotel gap) and, moreover, that PNK

concealed from PB a safer access point (the hotel interior). Furthermore, a fact

finder could also reasonably conclude that PNK (and not PB) provided and

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secured the ladders that PB employees used for access, including the ladder

that allegedly injured Renwick.

For instance, PB’s owner, Barnes, was asked in a deposition, “[o]n the

evening of this accident, can you tell me who first erected the ladder before Mr.

Renwick’s accident?” Barnes responded:

That’s the way it is on the roof. Those ladders are always up there,

tied off, and lean, you know, within a few degrees of the side exhaust

fans, so that there’s always something there. We don’t erect them.

They are there, and we use them.

Barnes also explained that the initial wooden ladder was replaced “over the

years” with “a number of fiberglass ladders,” similar to the one that figured in

Renwick’s accident. Barnes stated categorically that PB employees “didn’t do

anything … touching those ladders” and affirmatively denied that the defective

ladder that injured Renwick belonged to PB. 8 Other testimony was consistent

with Barnes on this point. For instance, PB’s operations manager, Gee, stated

that “over the years, there was always a ladder up there” (i.e., on the casino

roof) and he affirmatively denied that any of those ladders were provided by

PB. Renwick himself testified that a ladder was “always up … fastened to the

railing,” that it was “just provided for us,” and that PB employees “never tied

off” the ladders they found already set up on the casino roof. Finally, PNK’s

facilities manager, Long, testified that PNK did own ladders that it maintained

on the premises. 9

8 To be sure, Barnes did not testify that PNK owned the ladder in question; he simply

testified that he didn’t know who owned it. But a fact finder could infer from the other

evidence discussed—such as PNK’s control of access to the work-site—that PNK provided the

ladder in question. All we say is that there was a genuine fact issue on this point.

9The district court overlooked the significance of this evidence. This was somewhat

understandable, given that in opposing summary judgment Renwick relied in part on other

evidence (such as photographs of the accident site and evidence that the casino vessel captain

could have witnessed the accident) which, as the district court correctly found, fails to raise

a genuine fact issue on this point. Nonetheless, Renwick’s opposition also recounted the more

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From this evidence, a reasonable fact finder could conclude that PNK

“expressly or impliedly authorized the particular manner which … render[ed]

the work unsafe.” Davis, 865 F.3d at 236; see, e.g., Jordan v. Travelers Ins. Co.,

245 So.2d 151, 155 (La. 1971) (observing that “proof by direct or circumstantial

evidence is sufficient to constitute a preponderance, when, taking the evidence

as a whole, such proof shows that the fact or causation sought to be proved is

more probable than not”). Again, we emphasize that a fact finder could

reasonably resolve the evidence for or against Renwick. We conclude only that

the evidence—viewed in the light most favorable to Renwick—shows a genuine

dispute and that the district court erred in granting summary judgment.

B.

We next consider the district court’s summary judgment ruling dismissing

Renwick’s claim based on PNK’s ownership or custody of a defective thing.

Under Louisiana law, liability for damages caused by defective things in

one’s custody or garde is governed by articles 2317 10 and 2317.1 11 of the

Louisiana Civil Code. See generally, e.g., Bufkin v. Felipe’s Louisiana, LLC,

2014-0288 (La. 10/15/14), 171 So.3d 851, 855. “To recover for damages caused

probative evidence discussed above, and for that reason we must conclude that the district

court erred in granting PNK summary judgment.

10 Article 2317 provides in relevant part: “We are responsible, not only for the damage

occasioned by our own act, but for that which is caused by the act of persons for whom we are

answerable, or of the things which we have in our custody.” To determine whether a person

has “garde” over a thing, a trier-of-fact considers “(1) whether the person bears such a

relationship as to have the right of direction and control over the thing; and (2) what, if any,

kind of benefit the person derives from the thing.” Dupree v. City of New Orleans, 1999-3651

(La. 8/31/00), 765 So.2d 1002, 1009.

11 Article 2317.1 provides: “The owner or custodian of a thing is answerable for damage

occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of

reasonable care, should have known of the ruin, vice, or defect which caused the damage,

that the damage could have been prevented by the exercise of reasonable care, and that he

failed to exercise such reasonable care. Nothing in this Article shall preclude the court from

the application of the doctrine of res ipsa loquitur in an appropriate case.”

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by a defective thing, a plaintiff must prove [1] that the thing was in the

defendant’s custody, [2] that the thing contained a defect which presented an

unreasonable risk of harm to others, [3] that this defective condition caused

damage and [4] that the defendant knew or should have known of the defect.”

Luquette v. Great Lakes Reinsurance (Uk) PLC, 16-422 (La. App. 5th Cir.

12/21/16), 209 So.3d 342, 348, writ denied, 2017-0136 (La. 3/13/17), 216 So.3d

806. 12 As already indicated, the district court assumed for purposes of its ruling

that the ladder from which Renwick fell was in the custody 13 of PNK, and the

parties agree that the ladder in question was defective 14 due to its lack of

stabilization feet. The district court granted summary judgment based on the

second of the four factors listed above—namely, by concluding that the

undisputed evidence showed the defective ladder presented no “unreasonable

risk of harm.” Renwick appeals that ruling.

12 This is no longer “strict” liability under Louisiana law. The actual or constructive

knowledge element was added to article 2317.1 in 1996, which “effectively eliminated strict

liability … turning it into a negligence claim.” Burmaster v. Plaquemines Parish Gov’t, 2007-

2432 (La. 05/21/08), 982 So.2d 795, 799 n.1 (quotations omitted); Maraist & Galligan § 14.01,

at 14-3 (same); see also Bd. of Commissioners of Se. Louisiana Flood Prot. Auth.-E. v.

Tennessee Gas Pipeline Co., L.L.C., 850 F.3d 714, 729 (5th Cir.), cert. denied sub nom. Bd. of

Comm’rs of Se. Louisiana Flood Prot. Auth.—E. v. Tennessee Gas Pipeline Co., 138 S. Ct. 420

(2017) (observing “[t]here is essentially no difference between [article 2315 and 2317.1

claims] under Louisiana law”).

13 We think this was a plausible assumption, given the evidence that PNK controlled

access to the casino and hotel premises and that PNK maintained ladders on the premises.

Moreover, the custody over an injury-causing object “can sometimes be divided between two

persons.” King v. Louviere, 543 So.2d 1327, 1329 (La. 1989) (citing Ross v. La Coste de

Monterville, 502 So.2d 1026, 1032 (La. 1987)). Indeed, the seminal case of Ross—involving

the loan of a defective ladder—concluded that “an owner of a thing who transfers its

possession, but not its ownership to another, continues to have the garde of its structure and

is obliged to protect others from damage caused by structural defects arising before the

transfer.” Ross, 502 So.2d at 1032. Despite the 1996 change from strict liability to negligence,

see supra n.12, “the jurisprudence on garde may still be relevant in determining legal

responsibility for the relevant thing[.]” Maraist & Galligan § 14.05, at 14-15.

14 “A defect” within the meaning of article 2317.1 “is a condition or imperfection that

poses an unreasonable risk of injury to persons exercising ordinary care and prudence.” Wynn

v. Luck, 47,314 (La. App. 2 Cir. 9/26/12), 106 So.3d 111, 114 (and collecting authorities).

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Louisiana courts employ a risk-utility balancing analysis to determine

whether a defect presents an unreasonable risk of harm. See, e.g., Reed v. Wal-

Mart Stores, 97-1174 (La. 3/4/98), 708 So.2d 362, 365 (fact finder “must balance

the gravity and risk of harm against the individual and societal rights and

obligations, the social utility, and the cost and feasibility of repair”) (citations

omitted). 15 This determination is “‘a disputed issue of mixed fact and law or

policy that is peculiarly a question for the jury or trier of the facts.” Broussard,

113 So.3d 175, 183 (quoting Reed v. Wal–Mart Stores, Inc., 97–1174, p. 4

(La.3/4/98), 708 So.2d 362, 364). To be sure, the unreasonable harm

determination may be subject to summary judgment “in cases where the

plaintiff is unable to produce factual support for his or her claim that a

complained-of condition or thing is unreasonably dangerous.” Allen v.

Lockwood, 2014-1724 (La. 2/13/15), 156 So. 3d 650, 653 (quotes omitted).

However, this inquiry may not incorporate the plaintiff’s subjective knowledge

of the defect or “awareness of the risk” because doing so would undermine

Louisiana’s comparative fault regime. Id. at 189; see also, e.g., Rodrigue v.

Baton Rouge River Ctr., 2016-2075 (La. 1/25/17), 209 So. 3d 93 (concluding

that “[t]o the extent plaintiff was aware of the condition of the stairwell, the

trier of fact may consider such evidence at trial for purposes of determining the

percentage of fault, if any, to be assigned to plaintiff”). As one intermediate

court recently explained, Louisiana courts “are mindful not [to] incorporate the

plaintiff’s comparative fault into the analysis of whether a defect presents an

unreasonable risk of harm” because “[t]he plaintiff’s knowledge of the defect

15 The Louisiana Supreme Court has “synthesized this risk-utility balancing test to a

consideration of four pertinent factors: (1) the utility of the complained-of condition; (2) the

likelihood and magnitude of harm, including the obviousness and apparentness of the

condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff’s activities

in terms of its social utility or whether it is dangerous by nature.” Broussard v. State ex rel.

Office of State Bldgs., 2012-1238 (La. 4/5/13), 113 So.3d 175, 184.

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and considerations such as the extent of the risk created by the actor’s conduct

are more appropriate considerations for apportioning comparative fault

pursuant to Louisiana Civil Code article 2323.” Rose v. Liberty Mut. Fire Ins.

Co., 2015-1184 (La. App. 3 Cir. 5/18/16), 192 So.3d 881, 886 (citing Broussard,

113 So.3d at 188-89)) (internal quotation marks omitted).

In light of these principles, we must reverse the district court’s grant of

summary judgment on unreasonable harm. The court’s analysis focuses on

Renwick’s own putative negligence in failing to inspect the ladder before using

it, in light of PB’s training and OSHA standards. But this is inconsistent with

the unreasonable harm analysis under Louisiana law, which “focuses on the

global knowledge of everyone who encounters the defective thing … [but] not

the victim’s actual or potentially ascertainable knowledge.” Broussard, 113

So.3d at 188 (emphasis added). In any case, Renwick’s possible negligence

before using the defective ladder could be taken into account, not as a complete

bar to recovery via summary judgment, but rather through comparative fault

principles. Id. at 189 (citing LA. CIV. CODE art. 2323).

Additionally, as it did in its negligence analysis, the district court

overlooked the significance of evidence from which a reasonable fact finder

could conclude that PNK not only instructed PB employees to access the hotel

roof vents via ladders and concealed from PB a safer means of access, but also

that PNK placed and secured those ladders over the years-long course of PB’s

work. That kind of evidence raises genuine issues as to whether the risk posed

by the defective ladder—which the district court properly assumed was within

PNK’s custody given conflicting evidence on the ladder’s provenance, see, e.g.,

Ross, 502 So.2d at 1032—was unreasonable under article 2317.1. As before, we

emphasize that a reasonable fact finder could resolve these issues for or

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against Renwick; we hold only that the district court erred in granting

summary judgment. 16

C.

Finally, PNK raises as an alternative ground for affirmance the argument

that Renwick’s putative negligence in using the defective ladder constituted an

“intervening or superseding cause.” With reference to this doctrine, the

Louisiana Supreme Court has explained that, “[i]n situations in which there is

an intervening force that comes into play to produce the plaintiff’s injury (or

more than one cause of an accident), it has generally been held that the initial

tortfeasor will not be relieved of the consequences of his or her negligence

unless the intervening cause superceded the original negligence and alone

produced the injury.” Adams v. Rhodia, Inc., 2007-2110 (La. 5/21/08), 983 So.

2d 798, 808 (and collecting authorities) (citations omitted). However, the

supreme court has cautioned that “[i]f the original tortfeasor could or should

have reasonably foreseen that the accident might occur, he or she will be liable

notwithstanding the intervening cause. In sum, foreseeable intervening forces

are within the scope of the original risk, and hence of the original tortfeasor’s

negligence.” Id. (citations omitted); see also, e.g., Johnson v. Morehouse Gen.

Hosp., 2010-0387 (La. 5/10/11), 63 So. 3d 87, 116 (discussing doctrine).

16 The district court also emphasized Renwick’s “status as a repairman who was

trained on the safe use of ladders.” But, as the court pointed out elsewhere in its opinion, “[a]

building owner is not shielded from liability simply because the person injured was a

repairman who was injured during the course of the work he was hired to do.” See Meaux, 51

So.3d at 790. The Louisiana Supreme Court has explained that, while a “plaintiff’s status as

a repairman is a significant factor in determination of whether a risk is unreasonable,” “any

per se rule that an owner may never be held strictly liable to a repairman injured while

repairing the alleged defect is unworkable and contrary to the fact intensive nature of the

definition of ‘unreasonable risk.’” Celestine v. Union Oil Co. of California, 94-1868 (La.

4/10/95), 652 So. 2d 1299, 1305, 1304. Furthermore, it is unclear whether Renwick qualifies

as a “repairman” within the meaning of this doctrine, since he was not injured “while

repairing the alleged defect” in the ladder. Id.

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We decline PNK’s invitation to affirm the district court on this

alternative ground. We conclude, on this record, that a genuine fact issue exists

concerning whether Renwick’s use of the ladder was foreseeable and within the

scope of the original risk and therefore not a superseding cause. On remand,

the district court may consider whether to instruct the jury on the doctrine of

intervening or superseding cause. But it would not be proper for this Court to

resolve that issue as a matter of law on appeal.

IV.

For the foregoing reasons, we REVERSE the district court’s judgment

and REMAND for further proceedings.

REVERSED AND REMANDED

18