     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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                                  No. 17-30767
                                        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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                                  No. 17-30767
      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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                                       No. 17-30767
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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                                  No. 17-30767
      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
                                        5
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                                       No. 17-30767
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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                                        No. 17-30767
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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                                  No. 17-30767
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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                                       No. 17-30767
       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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                                       No. 17-30767
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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                                  No. 17-30767
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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                                       No. 17-30767
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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                                       No. 17-30767
       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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                                       No. 17-30767
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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                                       No. 17-30767
     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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                                  No. 17-30767
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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                                        No. 17-30767
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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                                 No. 17-30767
      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




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