In a recent premises liability case, Cosse v. Lafarge North America, Inc., 2020 CW 1183 (La.App. 1 Cir. 04/01/21), the Louisiana First Circuit Court of Appeal affirmed that the owner does not have custody or control over its own property during construction and has no premises liability for injuries that occur on site.

Cosse v. Lafarge North America, Inc. – Background

Plaintiff Zanzabar Cosse was a subcontractor’s employee who was working on construction at a refinery owned by the defendant Monsanto Company. This refinery was undergoing work and was inoperative at the time of the accident.

Mr. Cosse claimed that he was injured while driving down a temporary road at the refinery. He claimed that the road was unreasonably dangerous, and that Monsanto (as the owner of the property on which the road was built) was liable for his injuries through the doctrine of premises liability.

Defense Files Motion for Summary Judgment

Monsanto filed a Motion for Summary Judgment arguing that while it was the property owner at the time of Mr. Cosse’s accident, it did not have “custody or control” over the property—a necessary predicate to prove a premises liability claim. Monsanto pointed out that it had turned the property over to its general contractor for the duration of the construction contract. Therefore, only the general contractor had custody and control over the property and any dangerous condition was not Monsanto’s fault.

The district court identified several material disputes of fact that might indicate that Monsanto had “custody and control.” It noted that Monsanto’s own manager testified that its employees were present on the work site throughout construction. Moreover, one of Monsanto’s employees testified that he was involved in any discussions regarding vehicle traffic patterns on site.

The court found that there was a genuine issue of material fact as to whether Monsanto had “custody or control” over the property, and denied the summary judgment. Monsanto appealed.

First Circuit Court of Appeal Premises Liability Ruling

The Louisiana First Circuit Court of Appeal reversed the district court’s decision, finding that Monsanto did not have “custody or control” over the property. The appellate court pointed out that an owner can only have “custody or control” over a property under construction if the owner exercises “operational control over the contractor’s methods of operation or gives express or implied authorization to unsafe practices.”

Here, the plaintiff was unable to provide any evidence to indicate that Monsanto controlled the contractor’s operations with respect to the temporary roadway on which Mr. Cosse’s accident occurred. While Monsanto was present on site and engaged in discussion about how to manage traffic, it did not set up or maintain the roadway. Therefore, it bears no premises liability for his accident.

The First Circuit’s opinion affirms existing jurisprudence that an owner does not bear liability for his property after turning it over to a general contractor.

Cosse v. Lafarge North America, Inc., 2020 CW 1183 (La.App. 1 Cir. 04/01/21) Reverses Cosse v. Lafarge North America, Inc. (19th JDC 10/19/20)