Ussin v. Old Republic Insurance Company et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DENISE USSIN 	CIVIL ACTION
VERSUS 	NO. 24-962
OLD REPUBLIC INSURANCE 	SECTION: “R” (3)
COMPANY, ET AL.
ORDER AND REASONS
Before the Court is defendants BellSouth Telecommunications, LLC
(BellSouth) and Old Republic Insurance Company (ORIC)’s (collectively,
BellSouth Defendants) motion for summary judgment 1 and defendants ACE
American Insurance company (ACE), DG Louisiana, LLC (Dollar General),
and James Watkins’ (collectively, DG Defendants) motion for summary
judgment.2 	Plaintiff opposes both motions; 3 the BellSouth Defendants
oppose the DG Defendants’ motion for summary judgment. 4 	For the
following reasons, the Court grants the BellSouth Defendants’ motion for
summary judgment and denies the DG Defendants’ motion for summary
judgment.
1 	R. Doc. 19.
2 	R. Doc. 24.
3 	R. Docs. 23, 29.
4 	R. Doc. 30.
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I. 	BACKGROUND
The record establishes that the undisputed facts are as follows. 	On
August 31, 2023, James Watkins was driving a Dollar General 18-wheeler on
Dante Street in New Orleans.5 Neither his truck nor trailer exceeded thirteen
feet, six inches.6 	As Watkins crossed Oleander Street, the truck caught an
overhead cable owned and maintained by BellSouth. 7 	The cable detached
and began to fall. 	Denise Ussin, who was standing across the street five
houses down from the intersection where the truck struck the cable, saw the
cable falling and then started to move away from the falling cable. 8 Ussin fell
to the ground, suffering numerous injuries. The falling cable hit three parked
vehicles, the owners of which reported that the cable was already hanging
low.9
Ussin then sued the BellSouth and DG Defendants. All the defendants
now move for summary judgment. BellSouth asserts that there is no genuine
dispute of material fact that BellSouth was not the legal cause of Ussin’s
injuries. 10 	The DG Defendants assert that there is no genuine dispute of
5 	R. Doc. 29-1, at 15-29.
6 	R. Doc. 24-7, at 2.
7 	R. Doc. 29-1, at 30-31.
8 	R. Doc. 19-4, at 17.
9 	R. Doc. 24-1, Exhibit B-2.
10 	R. Doc. 19.
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material fact that they did not breach any duty owed to Ussin. 11 	Plaintiff
opposes both motions; the BellSouth Defendants oppose the DG Defendants’
motion.
The Court considers the motions below.
II. 	LEGAL STANDARD
Summary judgment is warranted when “the movant shows that 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). 	The Court considers the evidence in
the 	record 	without 	making 	credibility 	determinations 	or 	weighing 	the
evidence. Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d
395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of
the nonmoving party. 	Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
(5th Cir. 1985). If the record could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine dispute of material fact. EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the material in the record capable of being made admissible
11 	R. Doc. 24.
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is insufficient with respect to an essential element of the nonmoving party’s
claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving
party, who must, by submitting or referring to material capable of being
made admissible, set out specific facts showing that a genuine issue exists.
See id. at 324. 	The nonmovant may not rest upon the pleadings but must
identify specific facts that establish a genuine issue for resolution. See, e.g.,
id.
III. 	DISCUSSION
Plaintiff sued all defendants for negligence. To establish an action for
negligence under Louisiana law, Ussin must prove five elements by a
preponderance of the evidence: 1) the defendant had a duty to conform
conduct to a specific standard; 2) the defendant’s conduct failed to conform
to that standard; 3) the defendant’s conduct was a cause-in-fact of the injury;
4) the defendant’s conduct was a legal cause of the injury; and 5) proof of
damages. 	Campbell v. Orient-Express Hotels Louisiana, Inc., 403 So. 3d
573, 580 (La. 2025).
As plaintiff must prove all five elements, the failure of anyone one
element legally entitles defendants to summary judgment.
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A. BellSouth Defendants
BellSouth’s motion contends that it is entitled to summary judgment
because plaintiff cannot establish the fourth element of her negligence claim,
legal causation. In Louisiana, the test for whether an actor’s conduct was the
legal cause of an injury is duty-risk analysis, which asks whether “the risk,
and harm caused” was “within the scope of protection afforded by the duty
breached.” Roberts v. Benoit, 605 So. 2d 1032, 1041 (La. 1991). This is a two-
part inquiry: (1) whether there was a duty and, (2) if so, whether the injury
plaintiff sustained “was within contemplation of the duty.” 	Id. at 1044. To
determine 	whether 	the 	injury 	was 	within 	contemplation 	of 	the 	duty,
Louisiana courts apply the “ease of association” test, inquiring “how easily
the risk of injury to plaintiff can be associated with the duty sought to be
enforced.” Id. at 1045. If the duty breached is not easily associated with the
damages sustained, there is no legal fault. Id. The inquiry is simply whether
the harm that befell the plaintiff is easily associated with the type of conduct
engaged in by the defendant. 	Jones v. Buck Kreihs Marine Repair, 122 So.
3d 1181, 1186 (La. App. 4 Cir. 2013).
Defendants had a duty to maintain overhead cables in accordance with
the height requirements. 	The remaining inquiry is thus whether injuries
from a fall are easily associated with a too-low overhead cable. Defendants
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assert that a pedestrian tripping and falling after seeing a too-low cable fall
half a block away is not easily associated with a too-low cable. 	Plaintiffs
argue on the contrary that defendants “could have reasonably anticipated
that a low hanging line in its control could be struck by a vehicle and then
said falling line could cause injury . . . .” 12
The Court finds that a trip and fall five houses away is not easily
associated with a too-low cable. 	Plaintiff points to nothing in the record
supporting a contrary finding. The rationale for the height requirements for
cables running over streets is to prevent passing cars and trucks from hitting
the cables. See, e.g., Flowers v. Entergy Corp., 2010 WL 346135, at *2 (La.
App. 1 Cir. 2010) (noting that the purpose of the National Electric Safety
Code, which includes minimum safety standards for the heights of various
utility lines, is to provide safe clearance for equipment and people passing
under the lines). Such a requirement prevents damage to passing vehicles,
but also pedestrians that would be struck by falling cables.
Here, however, Ussin was not hit by a falling cable. 	Instead, she
tripped and fell as she saw the cable begin to fall half a block away. 13 	Ussin
has cited to nothing suggesting that the cable height requirements were
12 	R. Doc. 23 at 7.
13 	R. Doc. 19-4, at 17.
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designed to present trip and falls under circumstances like hers, such that
the harm is easily associated with a cable-height requirement. 	Here, the
harm of the fall is not easily associated with the duty to install and maintain
cables at a safe height, and thus the risk of the fall occurring was not within
the scope of BellSouth’s duty to maintain cables at a safe height. Absent an
“ease of association,” BellSouth’s breach of duty to maintain cables at a safe
height is not the legal cause of Ussin’s injuries. 	The BellSouth defendants
have shown that they are entitled to summary judgment against plaintiff as
a matter of law as she cannot establish the essential element of legal
causation. Fed. R. Civ. P. 56(a).
B. DG Defendants
The DG Defendants seek summary judgment on the ground that
plaintiff cannot satisfy her burden to establish that defendant breached a
duty to plaintiff for the purpose of her negligence claim. To defeat summary
judgment, plaintiff must point to material capable of being made admissible
that raises a genuine issue of material fact that Watkins breached his duty of
due care.
The DG Defendants rely on Brule v. Audubon Comm’n, 902 So. 2d 403
(La. App. 4 Cir. 2005), to support their contention that Watkins did not
breach his duty to drive carefully. In that case, a Waste Management truck
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struck a tree limb, knocking it to the ground and injuring Brule. Id. at 406.
The Louisiana Fourth Circuit found that, while the Waste Management
truck’s striking the tree limb was a cause-in-fact of Brule’s injury, Waste
Management had not breached its duty. Id.
The Fourth Circuit noted that both the New Orleans City Ordinance
and Louisiana law allow vehicles up to thirteen feet, six inches to operate on
the streets of New Orleans without a special permit. 	Id. 	The Waste
Management truck was below that height. Id. The Fourth Circuit reasoned
that a motorist “should not be placed in the position of having to estimate a
clearance upon approaching it unless it is quite obvious that the
vehicle cannot pass.” Id. (emphasis added). The court found that driving
the truck into the tree, absent any other evidence of negligence, was
insufficient 	to 	establish 	a 	breach 	of 	duty 	and 	thus 	granted 	summary
judgment. Id.
The DG Defendants argue that analysis applies here. It is undisputed
that the tractor-trailer Watkins was driving was thirteen feet, six inches, and
therefore within the permissible height range. 14 	The DG Defendants argue
that, outside of running into the too-low wire, there is no other evidence of
negligence, and thus Ussin cannot establish a breach of duty.
14 	R. Doc. 24-7, at 2.
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Brule did not establish a bright-line rule that driving a vehicle of
permissible height into an object or structure of lesser height is not negligent.
Brule contains a limitation—such an action is not negligent “unless it is quite
obvious that the vehicle cannot pass.” 	Id. 	Plaintiff has raised a genuine
dispute of material fact as to whether the wire was hanging so low that it was
obvious the truck could not pass. 	The police report reflects that multiple
witnesses had noticed that the cable was hanging low prior to the accident, 15
which raises a genuine dispute of material fact as to whether it was so low
that it was quite obvious the truck would not pass. 	Id. at 406. 	Because
plaintiff created a genuine dispute of material fact on breach of duty, the DG
Defendants are not entitled to summary judgment as a matter of law. 	The
Court denies the DG Defendants’ motion for summary judgment.
C. Timing
Ussin asserts that, because discovery has not concluded, the Court
should deny both motions for summary judgment as premature. 	The
BellSouth defendants assert that the Court should deny the DG Defendants’
motion for summary judgment as premature. Because the Court denies the
DG 	Defendants’ 	motion 	for 	summary 	judgment, 	the 	Court 	need 	only
15 	R. Doc. 19-5, at 18.
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consider 	whether 	the 	granting 	the 	BellSouth 	defendants’ 	motion 	is
premature.
BellSouth’s motion for summary judgment here is not premature.
Under 	Federal 	Rule 	of 	Civil 	Procedure 	56(d), 	the 	Court 	may 	defer
consideration of a motion for summary judgment if the opposing party shows
by affidavit or declaration that it cannot present facts essential to justify its
opposition. Fed. R. Civ. P. 56(d). Here, Ussin has provided no affidavit or
provided any indication as to how additional discovery would create a
genuine issue of material fact as to legal causation. 	Therefore, the Court
finds that a delay in considering BellSouth’s motion for summary judgment
is not warranted.
IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS BellSouth and ORIC’s
motion for summary judgment. 	Plaintiff’s claims against BellSouth and
ORIC are DISMISSED WITH PREJUDICE. The Court DENIES Dollar
General, ACE, and Watkins’ motion for summary judgment.
New Orleans, Louisiana this 17th day of December, 2025.
________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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