STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
NO. 2023 CA 0707 

# H1 CHRISTOPHER MARTIN VERSUS ISC CONSTRUCTORS, L.L.C. AND CINTAS CORPORATION

Judgment Rendered: 

### MAR 13 2024

Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge

State of Louisiana Docket No. 669821 The Honorable Richard "

### Chip" 

### Moore, III,Judge Presiding Andy Dupre llijana Todorovic New Orleans, Louisiana 

### J. Kyle Findley Adam D. Lewis Roland T. Christensen 

### Kason R. Kimberly 

### Kelsey Stallings TrevorCourtney Caj Boatright Kurt Arnold Houston, Texas Counsel for Plaintiff/ Appellant, Christopher Martin

A.M. "

### Tony" Clayton Michael Fruge Richard J. Ward, III uk 

### ge - 

### A ` camMichael C. Hendry

Port Allen, Louisiana
Quentin F. Urquhart, Jr. Gretchen F. Richards 

### Haley Zhu -

Butler Victor M. Dantin New Orleans, Louisiana 

### Matthew W. Bailey 

### Hillary B.Anderson Shannon M.Jaeckel Baton Rouge, Louisiana Counsel for Defendant/Appellee, Cintas Corporation No. 2

BEFORE: McCLENDON, HESTER,AND MILLER,JJ.

2MILLER,J. Christopher Martin (" Martin") 

### appeals the trial court's February 28, 2023 judgment, 

### which granted the motion for summary judgment filed by Cintas Corporation (" Cintas") and dismissed with prejudice Martin's claims against it. For 

### the following reasons,we reverse.

FACTS AND PROCEDURAL BACKGROUND 

### On February 13, 2018, Martin worked for Dow Chemical 

### Company Dow") as a process operator in Deer Park, Texas. On that date, Martin was 

### working near a tank when it suddenly erupted and caused the area where Martin was standing to be filled with hot chemicals. Martin suffered second and third degree burns on his feet and ankles. When the incident took place, Martin was 

### wearing shoes he purchased from Cintas, pursuant to a contract between Dow and Cintas wherein Cintas would provide safety shoes to Dow's employees. The shoes
were made ofleather and had a mesh tongue. 

### On May 30, 2018, Martin filed a petition for damages against ISC Constructors, L.L.C.' (" ISC") and Cintas. Martin contended he suffered severe and 

### permanent injuries as a result ofthe negligence of ISC and Cintas. Specifically, Martin alleged he was injured because Cintas "negligentlyand grossly negligently" 

### failed to provide proper safety equipment, failed to comply with applicable rules and regulations, failed to provide adequate protective gear, failed to provide a safe uniform for Martin' s work environment, failed to attach adequate warnings to the shoes, 

### failed to adequately supervise its employees, failed to provide adequate 

### training to its employees, failed to adequately warn Martin ofthe dangers ofthe shoes, 

### and other acts deemed negligent and grossly negligent. Cintas filed its 

### answer on February 1, 2019, and ISC filed its answeron February 7, 2020. Martin

by ISC. Martin alleged the valves and meters located at ornear the tankwere inspected annually

3

### filed a motion for leave to amend his petition,which was set for a hearing on June



### 20, 2022. However,the parties agreed to pass onthe hearing. 

### On December 16, 2022, Cintas filed a motion forsummaryjudgment. Cintas alleged Martin could not meet his burden ofproofagainst Cintas because he could 

### not show that Cintas owed any duty to provide shoes that protected against 

### exposure to hazardous chemicals or any duty to ensure Martin was wearing rubber boots' at the time ofthe accident. Cintas further contended there were no genuine issues of material fact, and Cintas was entitled tojudgment as a matter of law. In 

### support of its motion for summary judgment, Cintas filed the 2013 Dow Commercial Agreement (" 2013 Agreement"); the deposition of Priscilla Martin; 

### the deposition of Frank Burg; 

### the HHub Safety Shoe Policy; the deposition of 

### Tony Raven; the deposition of Edward Sebesta; the deposition ofCintas through its corporate representative, David Starr; the deposition of Martin; Amendment #2
to the Dow Chemical 

### Company Commercial Agreement MA - 2013-00207 Amendment #2"); 

### Amendment 93 to the Dow Chemical Company Commercial Agreement MA -

2013-00207 (" Amendment # 3"); Dow Confidential Document labeled TDCC-MARTIN-000012 and TDCC-MARTIN-000013; the original 

### petition fordamages;thejuryorder;andthe requestfornotice. Martin filed his opposition to Cintas' s motion for summary judgment on 

### January 31, 2023.E In support of his opposition, Martin filed his deposition; the



### Z Martin's petition fordamages states he was "wearing rubberboots" providedto him by Cintas. Cintas then filed a motion for summaryjudgment, asserting Martin could not showthat 

### Cintas owedany dutyto ensure Martin was "wearing rubberboots" atthetime ofhis accident. In Martin's appellant briefwith this court, he contends he " never claimed that Cintas had a duty to provide rubber shoes" and Cintas was required to provide footwear meeting all specifications that were both acknowledged by Cintas as applicable to the footwear under the contract and suppliedto Cintas by Dow. 

### 3 Martin's opposition was timely filed pursuant to La. C.C.P. 966, but it was not timely served. Cintas objected to the late - served opposition. However, the trial court considered it and allowed Martin to argue at the hearing. In its appellee brief,Cintas again contends that Martin's opposition should not be considered because it was not timely served. Since we have concluded 

### that Cintas's motionforsummaryjudgmenthas notbeen properly supported andthe burden does not shift to Martin to produced factual support sufficient to establish he will likely be able to satisfyhis burden ofproofattrial,the issue ofMartin's late - served opposition is moot.
4

### deposition of Cameron Pomeroy; the Dow post - incident root cause investigation report; the deposition of Edward Sebesta; the deposition of Priscilla Martin; the HHub 

### Safety Shoe Policy; the deposition of Cintas through its corporate
representative, David Starr; email correspondence between David Starr and Edward Sebesta; the deposition of Mac Moser; the deposition of Andrew Davidson; the 2013 Agreement; the deposition of Dr. Zal Phiroz; the affidavit and 

### expert report ofFrank Burg; the deposition of Frank Burg; and the deposition of Tony Raven. 

### Cintas filed its reply memorandum on February 8, 2023. Cintas argued 

### Martin's opposition was not timely under La. C.C.P. art. 966(B)(2); Martin' s 

### opposition did not comply with Louisiana District Court Rule 9.10; the unsworn and unverified report of Dr. Zal Phiroz was insufficient under La. C.C.P. art. 967; 

### and Martin failed to show Cintas owed him any legal duty. 

### A hearing was held on February 13, 2023. The trial court considered all 

### memoranda and reply memoranda in support of and in opposition to the motion, along with all documentary evidence submitted in support ofand in opposition to the motion and all argument of counsel. Thereafter, the trial court granted Cintas' s 

### motion for summaryjudgment and dismissed Martin's claims against Cintas, with prejudice. 

### A judgment to that effect was signed on February 28, 2023. Martin appealed.'

4 In his "Motion for Devolutive Appeal," Martin seeks to appeal thejudgments signed on February 28, 2023 and March 13, 2023. Both judgments arise out of the same motion for summary judgment filed by Cintas. The judgment dated February 28, 2023, provides that the motion for summaryjudgment filed by Cintas is granted and Martin's claims against Cintas are dismissed, with prejudice. The judgment further provides that each party is to bear their own costs. On the other hand, the judgment dated March 13, 2023, states that Cintas' s motion for summaryjudgment is granted. An amendmentto afinaljudgmentwhich adds to, subtracts from, or in anywayaffects the substance ofthejudgment, is considered asubstantive amendment,and is generally prohibited under La. C.C.P. art. 1951. Locke v. Madcon Corporation, 2021-0382 La. App. Pt Cir. 12130121), 340 So. 3d 946, 949. When a trial court substantively amends a judgment without adhering to the properprocedure,the amendedjudgment is an absolute nullity. When this court notices such an absolute nullity, we must vacate on our own motion. Id. Louisianajurisprudence further provides that when a trial court signs ajudgment and then signs another, the second judgment is an absolute nullity and without legal effect. Mack v. WileV,
5

### Martin contends the trial court erred in granting summaryjudgment due to

the existence ofgenuine factual issues. Specifically, Martin alleges genuine factual issues existed as to whether ( 1) 

### Cintas had a duty to provide safety footwearthat complied with Dow's policies and requirements; (

### 2) Cintas knew ofDow's policy 

### thatall safety footwear providedbyCintas be fully made ofleather; and (3) Cintas 

## had a dutyto inquire about Dow's policies and requirements for safety footwear
even if Dow did not provide it therewith. SUMMARY JUDGMENT 

### An appellate court reviews the grant or denial of summary judgment' de 

### novo underthe same criteria governing the trial court's determination ofwhether 

### summary judgment is appropriate. MN Resources LLC v. Louisiana Hardwood Products LLC, 2016-0758 ( La.App. 1St Cir. 7126117), 225 So. 3d 1104, 1109, writ denied, 2017- 1748 ( La. 1215117), 231 So. 3d 624. Because this court reviews 

### summaryjudgments de novo,we afford no deferencetothetrial court's underlying reasoning foritsjudgment.John RiverCartage, Inc.v. Louisiana Generating, LLC, 2020-0162 (La.App. 1St Cir. 314120), 300 So. 3d 437, 453 n. 12. On de novo review, 

### we also afford no deference to the legal standard or analysis applied by the trial 

### court.Tuckerv.Chatfield,2023-0343 (La.App. I" Cir. 1119123), --- So.3d ----, ---- 2023 WL 7410052, * 4. 

### After an opportunity for adequate discovery, a motion for summary 

### judgment shall be granted ifthe motion, memorandum, and supporting documents show thatthere is no genuine issue as to material fact and that the mover is entitled 2007-2344 (La.App. 1st Cir. 512108), 991 So, 2d 479, 486, writ denied, 2008- 1181 ( La. 9119108), 992 So. 2d 932. In this case, the March 13, 2023judgment signed by the trial court subtracted from the substance ofthe February 28, 2023 judgment, thus, it is an absolute nullity. See La. C.C.P. art. 1951. Therefore, the March 13, 2023 judgment is vacated. s Louisiana Code ofCivil Procedure article 966wasamended by La.Acts 2023, No. 317, 1; La. Acts 2023, No. 368, § 1, effective August 1, 2023. This court has determined that the amendments are substantive and cannot be applied retroactively. See La. C.C.P. art. 966, Comments --2023, Comment (f);Ricketson v. McKenzie, 2023-0314 (La.App. 1" Cir. 1014123), So. 3d _, , 2023 WL 7037495, * 4. Accordingly, inthe instant matter, we apply the version ofLa. C.C.P. art. 966 in effect at the time the motion for summaryjudgment was submitted and heard.
6to judgment as a matter of law. La. C.C.P. art. 966(A)(3). 

### The summaryjudgment

mover maintains the burden of proof. La. C.C.P. art. 966(D)( 1). Nevertheless, if the mover will not bearthe burden ofproofat trial on the issue before the court on 

### the motion,his burden is satisfiedbypointing outanabsence offactual support for one or more elements essential to the adverse party's claim, action, or defense. 

### Thereafter,the adverse party must produce factual support sufficient to establish the existence of a genuine issue ofmaterial fact or that the mover is not entitled to 

### judgment as a matter of law. Ifthe adverse party fails to meet this burden, the
mover is entitled tojudgment as a matter of law. Id. DISCUSSION 

### Louisiana courts have adopted a duty - risk analysis in determining whether 

### liability for negligence exists under the facts ofa particular case. Lafayette Steel Erector, Inc. v. G. Kendrick, LLC, 2022-0895 ( 

### La. App. 1 st Cir. 8/30/23), 375 So. 

### 3d 507, 514. For liabilityto attach under aduty - riskanalysis, a plaintiffmust prove five separate elements: ( 1) 

### the defendant had a duty to conform his conduct to a 

### specific standard (the duty element); ( 2) the defendant's conduct failed to conform to the appropriate standard (the breach element); ( 3) the defendant' s substandard conduct was a cause -in - fact of the plaintiff's injuries (the cause - in - fact element); 4) the defendant' s substandard conduct was a legal cause ofthe plaintiff's injuries 

### the scope of duty element); and ( 5) proof of actual damages ( the damages
element). Farrell v. Circle K Stores Inc., 2022-00849 ( La. 3/ 17/23), 359 So. 3d 

### 467,473. A negative answerto any ofthe inquiries ofthe duty - riskanalysis results in a determination of no liability. Landers v. USIC Locating Servs., Inc., 2020- 

### 0890 (La.App. 1St Cir. 4/26/21), 324 So. 3d 1070, 1073- 1074. 

### Attrial, Martin would bearthe burden ofproving the elements ofhis claims 

### against Cintas.Thus, forCintas to prevail on summaryjudgment, itwas required to 

### point out to the court the absence of factual support for any ofthe elements of

7Martin' s cause of action. See La. C.C.P. art. 966(D)( 1). Cintas' s motion for



### summaryjudgment focuses on the duty element ofthe duty/riskanalysis. 

### The existence of a duty is a question of law. Farrell, 359 So. 3d at 473. Specific duties can arise from codal, statutory, administrative and local laws, as well as private contracts and custom. Doe v. McKesson, 2021- 00929 (La. 3125122), 339 So. 3d 524, 537 n. 1 ( Weimer, GJ., concurring); Favret v. Favret, 2022-0820 

### La. App. 4t'' Cir. 7131123), 371 So. 3d 511, 521- 522. When no factual dispute 

### exists and no credibility determinations are required, the legal question of the 

### existence of a duty is appropriately addressed by summary judgment. Listach v. West Baton Rouge Parish School Board, 2021-0079 (La. App. I" Cir. 619121), 328 So. 3d 450, 456, writ denied, 2021- 00982 (La. 1113121), 326 So. 3d 887. In this case, both Cintas and Martin agree the contract between Cintas and 

### Dow is the source ofthe duty owed. Generally, legal agreements have the effectof law upon the parties, and, as they bind themselves, they shall be held to a full performance ofthe obligations flowing therefrom. La. C.C. art. 1983; Waterworks District No. 1 of Desoto Parish v. 

### Louisiana Department of Public Safety & Corrections, 2016-0744 ( 

### La. App. 1st Cir. 2117117), 214 So. 3d 1, 5, writ denied, 2017-0470 ( La. 5112117), 219 So. 3d 1103, 

### While Martin is not a party to the agreement between Cintas and Dow, Dow entered into the contract for the benefit of any " Eligible Recipient." The 2013 Agreement provides, in pertinent part, an Eligible Recipient" 

### is an entitythat is specifically designated by Dow in writing to Cintas to be able to purchase products under the 2013 Agreement or otherwise 

### be permitted to receive any and all benefits underthe 2013 Agreement and which

meets the " Eligible Recipient" definition. Under the agreement, " Eligible 

### 6When aparty has been damaged bythe conduct ofanother arising outofacontractual relationship,theparty mayhave two remedies,asuit incontractorasuitintort,and he mayelect to recover his damages under either ofthe two actions. Wilson v.Two SD, LLC, 2015-0959 (La. App. I" Or. 12123115), 186 So. 3d 103, 116. Where a cause of action arises from breach of a promise set forth in contract, the action is " ex contractu," but where it arises from a breach of duty growing outofcontract, it is "ex delicto." Id. at 117. 1.3Recipient," 

### in part, means Dow or any entity that is or becomes an affiliate of

Dow. Thus, under the 2013 Agreement, Martin, as an employee ofDow, was able 

### to purchase shoes from the Cintas shoe truck. The shoes he purchased from the 

### Cintas shoe truck are the shoes that he was wearing at the time of the accident. 

### While Martin was not a party to the 2013 Agreement, a contracting party may stipulate a benefit for a third person called a third party beneficiary. See La. C.C. art. 1978. 

### Cintas argues Martin cannot show that Cintas owed any duty to ensure 

### Martin was wearing rubber boots at the time of his accident. Cintas asserts the 2013 Agreement entered into by the parties indicated that the safety shoes must comply with ASTM F24137 and nothing in the 2013 Agreement specified thatthe shoes must provide protection against exposure to hazardous chemicals or that Cintas was required to perform a needs assessment or risk analysis in connection with the shoes offered. Cintas further argues Martin cannot show that Cintas owed 

### any dutyto Martin underAmendment #2 and Amendment #3. The 2013 Agreement between Dow and Cintas was effective from March 1, 2013, to December 31, 2016. The 2013 Agreement provides, in pertinent part: 

### The Dow Chemical Company (" DOW" or ` BUYER"), a Delaware corporation . . . and CINTAS CORPORATION (" SELLER"), a Washington corporation ... for valuable consideration the receipt and 

### sufficiency ofwhich is mutually acknowledged, agree as ofMarch 1, 

### 2013 to buy and sell, respectively, the Products and Services defined herein, subject to the terms and conditions set forth below. DEFINITIONS AND GEOGRAPHIC COVERAGE

7 ASTM stands forthe American Society forTesting and Materials. ASTM F2413 is the standard specification for performance requirements for protective ( safety) toe cap footwear. This specification covers the minimum design, performance, testing, and classification requirements, and prescribes fit, function, and performance criteria for footwear designed to be wom to provide protection against a variety ofworkplace hazards that can potentially result in 

### injury. Standard Specificationfor Performance Requirementsfor Protective (Safety) Toe Cap Footwear, ASTM INTERNATIONAL, https://www.astm.org/f2413- 18.html (last modified Sept. 25, 2018). E

### Seller agrees that an Eligible Recipient may purchase products and services under this Agreement, 

### either directly or indirectly through The Dow Chemical Companyas its service provider.

PRODUCTS 

### DOWand otherBUYERS may obtain anyproduct listed in Exhibit B, attached to and made part ofthis Agreement, which is manufactured 

### ordistributed,sold orresold by SELLER (" Products"). Each Product supplied under this Agreement shall meet all pertinent specifications ( 1) 

### which have been supplied to SELLER by DOW, or 2) 

### which SELLER acknowledges apply to the product under this Agreement. Failure of a Product to meet pertinent specifications may 

### result in a decision by DOWtoterminatethis Agreement.

Mwa QUALITY ASSURANCE WARRANTY & SERVICE


### SELLER represents that it has and shall supply to DOW and Eligible Recipients qualified and experienced personnel (" Seller Employees") to perform Services. . . In addition, SELLER guarantees that all Services performed pursuant to this Agreement shall be performed in a professional and workmanlike manner in accordance with the 

### highest industry standards.

TECHNICAL ASSISTANCE SELLER agrees to provide limited technical assistance to BUYER at 

### no charge to help BUYER complete the safety evaluation for certain applications, which may use SELLER's products. SELLER shall also provide recommendations to 

### BUYER regarding which Products provide the lowest 

### long term cost of ownership in specific applications.

EMM3 SITE ACCESS REQUIREMENTS - BUYER SITES

2. . . . 

### SELLER assumes responsibility for any losses, claims, expenses, damages, liabilities and actions whatsoever brought or made 

### against it,byreason ofany matterorthing arisingoutoforin anyway attributable to this Agreement,tothe extentcaused by SELLER's acts

10of negligence or omissions, or the acts of neglect or omissions of those forwhom SELLER is responsible at law.

ENTIRE AGREEMENT; SEVERABILITY This agreement consists of this document and all Exhibits and 

### attachments which this document by itsterms make aparthereof This Agreement represents the complete agreement between the parties 

### regarding the subject matter set forth in this Agreement, and no prior agreement, change, alteration, or other understanding or any terms 

### stated in any release, order, order acknowledgment, invoice, other documentation, transmission via Internet Exchanges, 

### or by any conditions, usage of trade, course 

### of dealing or performance, 

### understanding or agreement, oral orwritten, purporting in anyway to 

### modifythe terms and conditions to this Agreement or its attachments shall be binding upon either party unless mutually agreed upon in 

### writing by the respective duly - authorized representative of both parties and expressly stating an intention to amend or modify a particular provision ... The 2013 Agreement contains four attachments, Exhibit A, Exhibit B, Exhibit C, and Exhibit D. Exhibit A contains a list of locations where Cintas will provide services under the contract. Deer Park, Texas is listed as a location of

service. 

### Further, Exhibit A provides that the list of locations may be updated without a formal amendment to the 2013 Agreement. 

### Exhibit B is the pricing information. Exhibit B provides, in pertinent part: PRICE LIST Attached is the Price List ... 

### for all products and services currently 

### sold by SELLER to BUYER.Any new line items to be added to this Price List require written approval by the DOW Agreement Manager 

### prior to acceptance of any order by any DOW or Eligible Recipient site.... Exhibit D provides, in pertinent part:

13. 

### This Order is expressly limited to the terms and conditions contained in the provisions ofthis Order. Any additional, conflicting, 

### or different terms or conditions set forth in any invoice, in any 

### acknowledgment of this Order, or in any document other than this Orderas issued by BUYER, shall have no effect. The 2013 Agreement was extended on January 1, 2017, through Amendment 2. Then, 

### on July 1, 2019, the 2013 Agreement was extended again through

11Amendment #

### 3 until January 2, 2019. There is an attachment to Amendment #3

titled " North America —

### Safety Shoe Billing Rates." This attachment contained the 

### Puma Safety Shoe Model 642755 (" Puma Shoes") The Puma Shoes that Cintas sold to Martin were a product made part ofthe agreement between Cintas and Dow. Since the Puma Shoes were supplied under the 2013 Agreement and Amendment 43, the shoes were required to meet all 

### pertinent specifications that were supplied to Cintas by Dow and all pertinent
specifications that Cintas acknowledged applied to the product under the 

### agreement. However, it is not clear what specifications are meant by " all pertinent specifications." 

### Thus, it is necessary to lookoutside ofthe agreement between the partiesto determine what pertinent specifications were supplied to Cintas by Dow. Priscilla Martin is a sourcing manager at Dow. In her role as a sourcing manager, she procures contracts with different companies. She indicated that she 

### likely participated in the process of drafting the 2013 Agreement. Specifically, Priscilla stated that there would have been a request for proposal process where things like required specifications, ASTM language, metatarsal type language, all of that would have been provided" 

### as part of the requirement for safety shoes. However, she could not confirm what exact specifications were provided. Priscilla stated that all ofthe shoes in Exhibit B met the basic ASTM standard. 

### The HHub Safety Shoe Policy is an internal safety shoe policy at Dow.The document contains information about Dow's safety shoe policy and requires all 

### Dow employees who may enter an industrial environment to wear safety shoes. Safety shoes" 

### are defined as leatherfootwearhaving approved toe protection.The 

### policy further provides that minimum designations on safety shoes shall contain ASTM F2413-05, 175/C75 on the label and that it is important for the wearer to understand the classifications and requirements related to the hazards ofthe job. 

### While the HHub Safety Shoe Policy contains pertinent specifications for Dow's

12shoe requirements, it is not clear whether this document was made a part of the

2013 Agreement, Amendment 42, or Amendment # 3. 

### Further, the HHub Safety 

### Shoe Policy is not signed by Cintas, and there is no evidence within the document that Cintas agreed to the terms and conditions in the document. 

### Dr.FrankBurg isan expertwitness retained by Martin.Dr.Burg opinedthat Dow "

### had every reason to rely on [ Cintas] 

### as an agent responsible for providing the proper personal protective equipment." He further stated that the Dow 

### specifications forsafety shoes arethatthe shoes should meettheASTM criteriafor 

### safety shoes and should be all leather. However, Dr. Burg could not pinpoint how he learned thatthose were the specifications. He also stated that Cintas should have 

### been responsible for deciding if Martin should have worn rubber boots when he 

### was in a certain area. Dr.Burg agreedthatCintas has adutyto knowexactlywhich risks each employee may encounter and individually tell each employee what protective equipment to wear. 

### He indicated that that duty would fall under 

### professional responsibility rather than OSHA. Dr. Burg stated that Cintas should have done more than just rely on the information provided by Dow, and he 

### disagreed with the proposition that Cintas was simply a shoe vendor.Additionally, 

### Dr. Burg stated that the OSHA multi-employer worksite policy would impose an obligation on a vendor of personal protective equipment (" PPE") to perform a hazard analysis forthe employees to whom the PPE is sold. 

### The deposition ofTony Raven was attached to Cintas's motion forsummary judgment. At the time of Martin' s accident, Raven worked at Dow was an 

### Environmental, Health, and Safety Senior Technologist. Raven's job was to start an investigation process if someone was hurt or exposed on the job. He indicated that there was a PPE grid for each unit that everyone who worked in the unit must adhere to. Raven had little knowledge ofthe 2013 Agreement and indicated that he 

### was not consulted when the listing ofshoes was put together.Additionally, Raven

13

### explained that the Dow standard that describes all PPE is located on the Dow

intranet. In his deposition, Edward Sebesta stated he has been a Contract Administrator for the Houston Hub for the past eight years, and he has worked at 

### Dow for a total of forty-two years. He indicated he was not involved in the negotiation of the 2013 Agreement, Amendment # 2, or Amendment # 3. In 

### administering the contractforthe Houston Hub, Sebesta's duties included making sure that the Cintas shoe truck arrived on time at the designated locations, but he 

### did not play any role in the selection ofshoes thatwere offered.While he agreed that Dow expected Cintas to provide footwearthat would abide by all the policies that Dow had, he made it clear that he did not have knowledge ofthe pertinent specifications required under the contract. David Starr appeared as the corporate representative for Cintas. Starr 

### indicated Cintas is primarily known as a uniform rental company, providing uniforms for employees, uniform programs, and a range of products and services 

### for businesses. He further stated that Cintas provides safety footwear that is in compliance with ASTM F2413. Starr indicated he had no involvement with the development ofthe 2013 Agreement. However, Starr stated he was responsible for 

### administering the contract because it was within his geographical area.According to Starr, Cintas worked with Dow sites to develop the list of shoe models that would be carried on the truck. Starr was involved in making sure the Cintas shoe truck was stocked with the shoe models that Dow chose based on the product and 

### pricing schedule. Starr stated thatthe shoes that are on the Cintas shoe truck were decided by Dow and Dow's employees. Starr further indicated it was not Cintas'sjob to determine the type ofsafety footwear a Dow employee needed. The Cintas truck workers received training to understand ASTM F2413 and the definitions of the subcategories within that

14

### standard. Dow asked forsafety footwearthat complied with ASTM F2413, so that

was what Cintas provided. Once the customer explained their needs to Cintas, 

### Cintas would put together a product and pricing schedule for shoe models that complywith the requirements. Cintas then relied onthe manufacturers ofthe safety footwear to provide a product that met or exceeded ASTM F2413. Dow decided which shoes from the list would be included on the truck. He indicated that Cintas 

### does not have knowledge ofpotential hazards that go on inside ofa facility other than what the customer specifically tells them. Starr stated that he first saw the 

### HHub Safety Shoe Policy after the incident and no one at Cintas saw the HHub 

### Safety Shoe Policy before the incident.All ofthe shoesthat Cintas was contracted to provide to Dow had to meet the ASTM standard. Last, the deposition of Martin is attached. 

### Martin indicated the only 

### requirement he knew of for shoes was that they had to be steel toe. Martin 

### specified ifhe was going to change a strainer or drain a tank orvessel, he would 

### put on rubber boots and PPE because they were dealing with acid. He would use the rubber boots " maybe once a year." Martin stated there was a PPE grid chart on the wall that showed which PPE was needed for certain tasks. The PPE grid applied to Dow employees also. He said he was required to wear " block PPE," 

### which means safety shoes. Martin explained that, at the time ofthe accident, he was working as a process operator; the shoes he purchased on November 4, 2016, were the shoes that were involved in the accident; the first time he saw the HHub 

### Safety Shoe Policywas afterthe accident; and heworked inthe oxidation unit. After reviewing the evidence submitted by Cintas in support of its motion 

### forsummaryjudgment,we find Cintas failed to meet its initial burden ofshowing an absence of factual support for the duty element of Martin's claim. Whether 

### Cintas had a duty in this case cannot be determined on summaryjudgment due to the factual dispute regarding what "pertinent specifications" 

### were supplied by Dow

15to Cintas. Both Martin and Cintas agree that the 2013 Agreement required the

ASTM F2413 standard to be met. However, Cintas was unable to sufficiently show 

### an absence of factual support regarding the duty element because disputed evidence was submitted regarding which pertinent specifications were supplied to Cintas by Dow. Specifically, Priscilla Martin stated there would have been a 

### request for proposal process where things like required specifications and ASTM 

### language would have been provided to Cintas as part ofthe requirement for safety 

### shoes. Further, Dr.Burg indicated the specifications forsafety shoes were thatthe shoes should meet the ASTM standard and should be all leather and that Cintas 

### was responsible for providing proper PPE and deciding what employees should
wear in particular areas. 

### Sincethe motion forsummaryjudgment has not been properly supported by Cintas, and Cintas has not shown the motion for summary judgment should be granted, the burden does not shift to Martin to produce factual support sufficient to 

### establish hewill beableto satisfyhisburden ofproofattrial.Accordingly,wefind thetrial court erred in grantingthe motion forsummaryjudgment. CONCLUSION 

### For the above and foregoing reasons, the trial court's February 28, 2023 

## judgmentgranting CintasCorporation'smotion summaryjudgmentand dismissing Christopher Martin's claims against it, without prejudice, is reversed. All costs of this appeal are assessed to Cintas Corporation.

REVERSED.

16