IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

No. 00-30790 Summary Calendar ____________________

PAUL BOURQUE, Individually and on behalf of Josh Bourque; ROBERTA BOURQUE

Plaintiffs - Appellants v.

OLIN CORP; ET AL

Defendants

OLIN CORP; LYONDELL CHEMICAL WORLDWIDE INC; LYONDELL CHEMICAL CO

Defendants - Appellees

____________________

No. 00-31130 Summary Calendar ____________________

PAUL BOURQUE, on behalf of Josh Bourque; ROBERTA BOURQUE

Plaintiffs - Appellants v.

OLIN CORP; ET AL

Defendants

BIO-LABS INC

Defendant - Appellee

_________________________________________________________________

Appeals from the United States District Court for the Western District of Louisiana USDC No. 99-CV-1703 _________________________________________________________________ April 10, 2001

Before KING, Chief Judge, and WEINER and DENNIS, Circuit Judges.

PER CURIAM:*

In this consolidated appeal, Plaintiffs-Appellants appeal

from the district court’s grant of summary judgment in favor of

Defendants-Appellees. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant-Appellee Lyondell Chemical Company (“Lyondell”)

operates a chemical plant on its property in Westlake,

Louisiana.1 At its Westlake facility, Lyondell produces, among

other things, toluene diisocyanate (“TDI”). Phosgene is one of

the components utilized in the production of TDI. Defendant-

Appellee Bio-Labs, Inc. (“Bio-Labs”), a separate and distinct

corporate entity from Lyondell, leases a section of the Westlake

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 1 Defendant-Appellee Lyondell Chemical Company acquired a portion of the Westlake property, upon which its facility is situated, from Defendant-Appellee Olin Corporation. Originally, in 1996, ARCO Chemical Company (“ARCO”) acquired the production facility from Olin Corporation under an Asset Purchase Agreement. Then, in July 1998, ARCO was acquired by Lyondell Chemical Company, with ARCO becoming a wholly owned subsidiary of Lyondell Chemical Company. ARCO’s name was subsequently changed to Lyondell Chemical Worldwide, Inc., another named Defendant- Appellee herein. In December 1999, Lyondell Chemical Worldwide, Inc. was merged into Lyondell Chemical Company, with Lyondell Chemical Company being the surviving entity.

2 property from Defendant-Appellant Olin Corporation, on which Bio-

Labs operates a chemical plant.

On September 2, 1998, Plaintiff-Appellant Paul Bourque, a

meter technician for Entergy Corporation (“Entergy”), was

installing and checking new electricity meters at Entergy’s

electrical substation, which was located on property adjacent to

that owned by Lyondell. To reach these meters, however, Bourque

was required to sign in at the Lyondell gate, located at the

front of the property, and drive to the back area of the Lyondell

facility.

After finishing his work at the substation, Bourque drove

back to the front gate. Before reaching the gate, however,

Bourque began to experience shortness of breath and a tightness

in his chest. He began having difficulty breathing and was

forced to stop his truck on the side of the road. Paramedics

took him to the hospital, where he was treated for chemical

asthma.

On August 25, 1999, Bourque sued Lyondell Chemical Company,

Lyondell Worldwide, Inc., and Olin Corporation (hereinafter

referred to collectively as the “Lyondell Defendants”) in

Louisiana state court, alleging that he has suffered “severe and

disabling injuries and illnesses,” including permanent lung

damage, as a result of “his exposure to phosgene.” On September

16, 1999, the Lyondell Defendants removed the action to federal

court based on diversity.

3 On January 14, 2000, the Lyondell Defendants moved for

summary judgment on the ground that there was no release of

phosgene from the Lyondell facility on the day in question. On

January 28, 2000, in conjunction with his response to the motion

for summary judgment, Bourque filed a motion for leave to file an

amended complaint, seeking to add Bio-Labs as a defendant and to

include the allegation that a release of “bromine or other

chemicals” caused his injuries. In his memorandum in support of

his motion to continue, Bourque maintained that, on September 2,

1998, Bio-Labs reported a release of bromine from its

tricholoroisocyanurate (“TCCA”) unit. Moreover, Bourque asserted

that he did not learn of the bromine release until December 9,

1999. The district court granted Bourque’s motion to amend his

complaint, adding Bio-Labs as a defendant.2

On April 19, 2000, the district court granted summary

judgment in favor of the Lyondell Defendants, leaving only

Bourque’s claim against Bio-Labs. Then, on June 28, 2000, Bio-

Labs moved for summary judgment, contending that because Bourque

did not bring suit until seventeen months after he was injured,

his claims are prescribed by Louisiana’s twelve-month

prescription statute for delictual actions. See LA. CIV. CODE

2 The court also continued the summary judgment hearing for sixty days to allow the parties time to discover any additional evidence in support of their positions. During this time, Bourque failed to conduct further discovery.

4 ANN. art. 3492 (West 1994). The district court granted summary

judgment in favor of Bio-Labs on August 10, 2000.

Bourque timely appealed each grant of summary judgment, and

this court consolidated the appeals on September 25, 2000.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying the

same criteria employed by the district court in the first

instance. See Norman v. Apache Corp.,

(5th

Cir. 1994). “Summary judgment is proper only ‘if the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.’” Turner v. Houma

Mun. Fire & Police Civil Serv. Bd.,

(5th Cir.

2000) (quoting FED. R. CIV. P. 56(c)); see also Celotex Corp. v.

Catrett,

(1986).

“Courts of Appeals consider the evidence in the light most

favorable to the nonmovant, yet the nonmovant may not rely on

mere allegations in the pleadings; rather, the nonmovant must

respond to the motion for summary judgment by setting forth

particular facts indicating that there is a genuine issue for

trial.” See Spivey v. Robertson,

(5th Cir.

1999) (citing Anderson v. Liberty Lobby, Inc.,

(1986)), cert. denied,

(2000); see also

5 Doe v. Dallas Indep. Sch. Dist.,

(5th Cir.

2000) (“If the movant succeeds in making that showing, the

nonmoving party must set forth specific facts showing a genuine

issue for trial and not rest upon the allegations or denials

contained in its pleadings.”), cert. denied,

(2001). After the nonmovant has been given an opportunity to

raise a genuine factual issue, if no reasonable juror could find

for the nonmovant, summary judgment will be granted. See FED. R.

CIV. P. 56(c); Celotex Corp.,

.

III. THE LYONDELL DEFENDANTS

In ruling on the Lyondell Defendants’ motion for summary

judgment, the district court found that they adduced competent

summary judgment evidence showing that there was no release of

phosgene at the Lyondell facility on September 2, 1998. The

court concluded that, instead, the evidence demonstrated that

there was a bromine release at the adjacent Bio-Labs plant, which

was not owned, managed, or operated by the Lyondell Defendants.

Moreover, the court recognized the Lyondell Defendants’ argument

that the release at Bio-Labs was a “Code I” release, meaning that

it was contained within the relevant Bio-Labs operating unit and

did not spread to adjacent properties, such as Lyondell’s.

Finding that Bourque “failed to submit competent summary judgment

evidence that there was a release at the Lyondell plant or that

any release on an adjoining plant affected [the Lyondell

6 Defendants’] employees,” the court concluded that the Lyondell

Defendants owed no duty to Bourque. Accordingly, the district

court granted summary judgment in favor of the Lyondell

Defendants.

On appeal, Bourque contends that the Lyondell Defendants

owed a duty to him to warn of the “dangerous condition at [the

Lyondell] facility.” Bourque maintains that the Lyondell

Defendants knew of the bromine release at the Bio-Labs facility

and failed to warn him of the danger. Accordingly, Bourque

argues that the district court erred in finding that the Lyondell

Defendants had no duty to warn him of the danger. We disagree.

Louisiana courts3 have adopted a duty/risk analysis for

determining whether a party is liable for negligence. See

Peterson v. Gibraltar Sav. & Loan, 98-1601, p.6 (La. 5/18/99),

. Under Louisiana’s duty/risk framework, in

evaluating whether a party is at fault, Louisiana courts

consider:

(1) Was the defendant’s conduct a cause-in-fact of the harm? (2) Was a duty imposed on the defendant by a general rule of law to protect this plaintiff from this type of harm arising in this manner? (3) Was the duty breached?

3 Because our jurisdiction is based upon diversity, we sit as an Erie court. See Erie R.R. Co. v. Tompkins,

(1938); see also C.P. Interests, Inc. v. Cal. Pools, Inc.,

(5th Cir. 2001).

7 Dupre v. Chevron U.S.A., Inc.,

(5th Cir.

1994).

In Louisiana, the existence of a duty and its scope are

questions of law. See

; see also Peterson, 98-1601 at

p.7,

; Mathieu v. Imperial Toy Corp., 94-0952,

p.5 (La. 11/30/94),

. The general rule is

that “the owner or operator of a facility has the duty of

exercising reasonable care for the safety of persons on his

premises and the duty of not exposing such persons to

unreasonable risks of injury or harm.” Peterson, 98-1601 at p.7,

; see also Dupre,

. The question

whether a duty exists depends upon the facts and circumstances of

each case, and the scope of that duty is “limited by the

particular risk, harm, and plaintiff involved.” Dupre,

.4 Because the scope of the Lyondell Defendants’ duty to

warn was defined by the particular risk of harm caused by a Code

I bromine release, we conclude that the district court did not

4 In 1976, the Louisiana Supreme Court eliminated the common-law classifications of invitee, licensee, and trespasser. Cates v. Beauregard Elec. Coop., Inc.,

(La. 1976). These classifications were replaced by the current duty/risk analysis. See Shelton v. Aetna Cas. & Sur. Co.,

(La. 1976); see also Kramer v. Continental Cas. Co., 92-1131, p.14 (La. App. 3 Cir. 6/22/94),

(“Thus, in the present case, we do not find it necessary to classify [the plaintiff] as an invitee or licensee, and instead examine the question of legal duty owed in light of the duty/risk formulation.”). As such, which classification best fits Bourque’s purpose for being on Lyondell’s property is irrelevant to this analysis.

8 err in finding that the Lyondell Defendants owed no duty to

Bourque.

In the instant case, the summary judgment evidence reveals

that on September 2, 1998, at 12:23 p.m., employees at the

Lyondell facility were informed that the adjacent Bio-Labs

facility issued a Code I bromine release notice. Five minutes

later, at 12:28 p.m., Bio-Labs issued an “all clear” on the Code

I bromine release. Kathy Kiestler, the Senior Industrial

Hygienist at Lyondell, testified in an affidavit that a “Code I

release” is a “release contained inside the . . . operating

unit.” As such, at the time of the incident, the Lyondell

employees were aware that there was a release of bromine at the

Bio-Labs plant and that it was contained within the TCCA unit

located on Bio-Labs’ property. Accordingly, the Lyondell

Defendants argue that there was no risk of exposure to

individuals within Lyondell’s separate production facility.

After our review of the record, we conclude that Bourque has

created no genuine issue of material fact for trial. Bourque has

adduced no summary judgment evidence to show that a Code I

bromine release notice would have alerted Lyondell to a risk at

the Lyondell facility, nor does Bourque argue in his brief to

this court that the Lyondell Defendants were aware of a possible

risk of exposure to individuals at the Lyondell facility, such as

would have triggered the Lyondell Defendants’ duty to warn.

Therefore, because the scope of the Lyondell Defendants’ duty to

9 warn was limited to the particular risk of a Code I bromine

release at another plant’s facility, see Dupre,

,

and because there is no dispute that a Code I release means that

such release is contained within that facility, we find that the

summary judgment evidence shows that the Lyondell Defendants were

not aware of a risk on their property. As such, the district

court did not err in finding that the Lyondell Defendants had no

duty to warn Bourque of the Code I bromine release at a separate

and distinct facility. Accordingly, we conclude that the

district court’s grant of summary judgment in favor of the

Lyondell Defendants was proper.

IV. BIO-LABS

Bourque was injured on September 2, 1998. However, Bourque

did not bring suit against Bio-Labs until January 28, 2000,

almost seventeen months later. Finding that Bourque’s claims

against Bio-Labs were prescribed by Louisiana’s twelve-month

prescription statute for delictual actions, the district court

granted summary judgment in Bio-Labs’ favor. In his response to

Bio-Labs’ motion for summary judgment, Bourque argued that he

filed a workers’ compensation claim against his employer,

Entergy, within the twelve-month prescription period, thereby

tolling prescription.

The district court rejected this argument, reasoning that

Bourque presented no competent evidence that he filed the

10 workers’ compensation claim, that there was no evidence of

solidary liability5 between Entergy and Bio-Labs, and that

Bourque’s voluntary dismissal of his workers’ compensation suit

vitiated any interruption of prescription that might have

occurred.

On appeal, Bourque contends that he did file a workers’

compensation claim against Entergy, which he voluntarily

dismissed on June 7, 1999, and that Entergy was solidarily liable

with Bio-Labs. Bourque asserts that, accordingly, he had one

year from the date of voluntary dismissal to file suit against

Bio-Labs. Because he filed suit against Bio-Labs within that

time, Bourque argues that his claims against Bio-Labs are not

prescribed. Therefore, if Bourque had filed a suit in which

Entergy made a general appearance before Bourque’s voluntary

dismissal, that suit could toll the prescription period.

Under Louisiana law, “[d]elictual actions . . . are subject

to a liberative prescriptive period of one year which begins to

run from the day injury or damage is sustained.” Williams v.

5 A “solidary obligation” is “one where the obligors ‘are obliged to the same thing, so that each may be compelled for the whole, and when payment by one exonerates the other toward the creditor.’” Williams v. Sewerage & Water Bd.,

(La. 1993) (quoting Hoefly v. Gov’t Employees Ins. Co.,

(La. 1982); Lucero v. Burney Gear Co., 33,585, pp.2-3 (La. App. 2 Cir. 6/21/00),

(finding, on the facts of the case, solidary liability of employer and third-party tortfeasor). “Suit against one solidary obligor interrupts prescription as to other solidary obligors.” Younger v. Marshall Indus., Inc.,

(La. 1993).

11 Sewerage & Water Bd.,

(La. 1993) (citing

LA. CIV. CODE ANN. art. 3492). If, on the face of the complaint,

it appears that prescription has run, the burden is on the

plaintiff to demonstrate an interruption or suspension of the

prescriptive period. See Younger v, Marshall Indus., Inc.,

(La. 1993); Lima v. Schmidt,

(La. 1992).

Louisiana law provides that “a suit timely filed against the

employer for worker’s compensation interrupt[s] prescription as

to the subsequent claim against the third party tort-feasor for

damages.”6 Williams,

. Once such a suit is

filed, interruption continues so long as the suit is pending.

See LA. CIV. CODE ANN. art. 3463 (West supp. 2001).

Relying upon a recently amended Louisiana statute, the

district court concluded that because Bourque voluntarily

dismissed his workers’ compensation claim against Entergy, there

was no interruption of the prescriptive period. See LA. CIV. CODE

ANN. art. 3463 (West supp. 2001) (“Interruption is considered

never to have occurred if the plaintiff . . . voluntarily

dismisses the action at any time either before the defendant has

made any appearance of record or thereafter[.]”). Bourque

contends that the district court erred by relying upon the

amended statute because it was not in effect when he filed suit

6 See supra note 5.

12 against Entergy. Bourque asserts that, instead, the prior

statute and its interpretive case law should apply to the instant

case. We need not decide which version of the statute applies to

Bourque’s claims, because even assuming arguendo that Bourque is

correct, his claim still fails under the earlier version of the

statute.

Before the 1999 amendment of Article 3643, it read:

“Interruption is considered never to have occurred if the

plaintiff . . . voluntarily dismisses . . . the suit[.]” LA.

CIV. CODE ANN. art. 3463 (West 1994). During the time this

version of Article 3463 was in effect, Louisiana courts

interpreted the statute to apply only to those voluntary

dismissals occurring prior to a general appearance by the

defendant. See Roger v. Estate of Moulton,

(La. 1987); Herbert v. Cournoyer Oldsmobile-Cadillac GMC, Inc.,

(La. 1982); Jones v. Dep’t of Transp. & Dev.,

94 1908, pp.3-4 (La. App. 1 Cir. 6/30/95),

.

In other words, if the plaintiff voluntarily dismisses the suit

before the defendant has made a general appearance, the

prescription period is not interrupted, and the plaintiff’s

claims will be prescribed within the twelve-month period.

Bourque alleges that Entergy made a general appearance in

the workers’ compensation lawsuit before it was voluntarily

dismissed. In his response to Bio-Labs’ motion for summary

judgment, Bourque produced evidence that Entergy was served with

13 notice of a mediation hearing in connection with the workers’

compensation suit and alleges that Entergy made a general

appearance in connection with the mediation hearing. Bourque

fails, however, to provide this court with any evidentiary basis

to support this assertion. While he did produce the mediation

notice, it does not indicate whether Entergy actually attended

the mediation hearing. Indeed, the director of the Louisiana

Office of Workers’ Compensation is required under Louisiana law

to set all workers’ compensation matters for mediation within

fifteen days of a claim’s filing. See LA. REV. STAT. ANN.

§ 23:1310.3(B)(1) (West 1998). Moreover, there is no indication

in the record regarding whether the mediation conference actually

took place — evidence that we conclude would be readily available

to Bourque. See id. (“Within five days following the conference

the workers’ compensation mediator shall issue a report stating

the results of the conference which shall be mailed to the

parties and the director.”).

Bourque may not rely on the “mere allegation” that Entergy

made a general appearance in the workers’ compensation suit to

toll the prescription period and thus defeat a motion for summary

judgment. See Spivey v. Robertson,

(5th

Cir. 1999). Bourque failed to present summary judgment evidence

to demonstrate a genuine issue of fact regarding whether Entergy

made a general appearance before he voluntarily dismissed his

workers’ compensation suit. Accordingly, we find that the

14 prescription period was not tolled, see Doyle v. Mitsubishi Motor

Sales of Am., Inc., 99-0460, p.7 (La. App. 1 Cir. 3/31/00),

(“The interruption of prescription resulting

from the filing of the suit is lost when the plaintiff

voluntarily dismisses the suit prior to trial.”), and the

district court did not err in finding that Bourque’s claims

against Bio-Labs were prescribed.7

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgments of the

district court, granting summary judgment in favor of all

defendants.

7 Because we find that Bourque failed to raise a genuine issue of fact regarding whether Entergy made a general appearance in the workers’ compensation suit, it is unnecessary to determine whether Entergy and Bio-Labs were solidarily liable.

15