THOMAS I. AWAGU, II, E AL      :  NUMBER:  503,046 “B”

VERSUS                                    :  FIRST JUDICIAL DISTRICT COURT

C.H. BOLTON, INC., ET AL         :  CADDO PARISH, LOUISIANA


    The Court has considered the following three motions for summary judgment: (1) Motion For Summary Judgment filed November 2, 2006 by C.H. Bolton, Inc. and State Farm Fire and Casualty Company; (2) Motion For Summary Judgment filed May 17, 2007 by Southern Disposal Services, LLC; and (3)Motion For Summary Judgment filed February 11, 2008 by David T. Hall and American Vehicle Insurance Company, as well as oppositions.  The Court has considered the entire record, specifically, the depositions, affidavits, and other properly attached documents and oral argument held in open court on April 7, 2008.  The undersigned judge has also viewed the general scene located in the area of 617-621 Kings Highway, Shreveport, Louisiana.  After thorough consideration of the record, applicable law, arguments of counsel, and for reasons which follow, the Court concludes that all three motions should be denied.

    This is a somewhat peculiar and fact intensive wrongful death case.  The arrangement (use with right to purchase?) between the owner of the property, C. H. Bolton, Inc., and the one performing construction work for stated purpose of achieving “sweat equity” for financial reasons, David T. Hall, was unusual.  Legitimate and genuine issues of material fact are raised under the particular circumstances as to whether the conduct of C. H. Bolton, Inc. was ultimately tortious under Louisiana law in turning the property over to Hall without determining the scope of the work, Hall’s qualifications to do the work and whether it was reasonable to believe under the circumstances that there would be compliance by Hall with applicable law including, but not limited to, the requirement that he obtain a permit before commencement of this type of work.

    In addition the issue of constructive knowledge and whether, under the particular circumstances of this location being on a major thoroughfare of Shreveport, C. H. Bolton, Inc. should have known of the alleged defective condition.

    There is complete dispute between David Hall and Southern Disposal Service, Inc. as to who said what to whom with regard to the request by Hall for the dumpster.  For example, did David Hall simply request the receptacle without designating a site for it (as Hall’s counsel argues) and Southern Disposal Services, Inc. simply placed it as it deemed appropriate, or did David Hall (as counsel for Southern argues) specify the precise area that he wanted the receptacle placed?

    Were there violations of accepted standards in the placement of this object, and who is in the superior position to know and comply with those standards?

    And, of course, the key issues are (1) whether the position of the dumpster constitutes a defective condition that presented an unreasonable risk of harm and (2) whether the placement of the dumpster was a cause in fact of the accident that resulted in Mrs. Awagu’s death?  The Court believes that there are genuine issues of material fact as to the placement issue.  A closer issue is the causation analysis given the fact that Mrs. Awagu apparently traversed the initial (outer) lane of Kings Highway but was impacted in the second or inner lane of the roadway.  The lawyers are advised to reexamine this issue in light of Row v. Pierremont Plaza, 35,796 (La.App. 2d Cir. 4/3/02); 814 So.2d 124, writ denied, 02-1262 (La. 8/30/02), 823 So.2d 9521.
From a record standpoint, the issue of whether the alleged obstruction of the dumpster was a cause-in-fact of the accident is undeveloped; therefore, in addition to the numerous unresolved genuine issues on the previous page there are issues related to causation which should be resolved at trial on the merits.

      For the reasons assigned, the motions for summary judgment, specifically:
(1) Motion For Summary Judgment filed November 2, 2006 by C.H. Bolton, Inc. and State Farm Fire and Casualty Company; (2) Motion For Summary Judgment filed May 17, 2007 by Southern Disposal Services, LLC; and (3)Motion For Summary Judgment filed February 11, 2008 by David T. Hall and American Vehicle Insurance Company, are all denied.  A formal judgment(s) shall be submitted forthwith.

    Signed this 22nd day of April, 2008 in Shreveport, Caddo Parish, Louisiana.

                            _________________________
                                  SCOTT J. CRICHTON
                                     DISTRICT JUDGE



1  The lawyers are directed to Row v. Pierremont Plaza, 35,796 (La.App. 2d Cir. 4/3/02); 814 So.2d 124, writ denied, 02-1262 (La. 8/30/02), 823 So.2d 952.  The plaintiff intended to exit the parking lot on East 70th Street and turn left onto East 70th, a maneuver which would have entailed crossing both lanes of eastbound traffic.  The plaintiff had a difficult time seeing through a pile of trimmings and brush that Dominic Cordaro’s employees had stacked on that portion of the parking lot to the left of the exit Row used.  In her deposition, the plaintiff stated that a motorist in the outside eastbound lane (the lane closest to her) stopped to the west of the parking lot exit to let her out onto East 70th.  She further testified that when the driver in the outer lane stopped to let her out she “inched out into 70th Street”.  However, it was a vehicle traveling in the eastbound lane of East 70th that collided with the plaintiff.  In response to a subsequently filed motion for summary judgment, the plaintiff filed an affidavit that the limbs and debris caused an obstruction and created a sudden emergency and, further, she stated that she “did not understand some of the questioning during her incomplete deposition and make this affidavit to correct it”.  The trial court granted summary judgment noting that the alleged obstruction became immaterial as a causal factor of the accident.  The Second Circuit agreed, holding as follows:
Considering Row’s description of the accident in her deposition only, we do not find any genuine issue of material fact allowing for the brush pile obstruction as a possible cause-in-fact of the accident.  Row’s superseding action entering the outside lane of traffic created a new obstacle to her vision which caused the accident.  We believe the trial court’s grant of summary judgment is correct based upon Row’s failure to establish causation in her deposition testimony.  Row’s deposition failed “to produce factual support sufficient to establish that [s]he will be able to satisfy [her] evidentiary burden of proof at trial,” so that based on her deposition alone, ‘there is no genuine issue of material fact’.

    The Court also noted: (i) that the only credibility issue concerns the plaintiff’s own contradictory account of the accident; (ii) that summary judgment should be granted where the evidence is such that it “would require a directed verdict for the moving party”; and (iii) that the mere existence of a scintilla of evidence in support of the non mover’s position will not be sufficient.



DISTRIBUTION:

James D. Hall, fax no. - 747-3776
James J. Bolen, Jr. – 443-1770
R. Todd Musgrave – (504) 799-4301
D. Brennan Hussey – 221-0656