Summary
In Fontanille, this Court concluded that the threshold issue for both the negligence and the premise liability issues was whether the defendant's property was "unreasonably dangerous" to the plaintiff because the defendant would owe no duty under either theory of recovery unless her property was found to be "unreasonably dangerous."
Summary of this case from Fisher v. VillereOpinion
NO. 2011-CA-0882
01-25-2012
LANDRY FONTANILLE, JR., AND JEANINE FONTANILLE v. DARLEEN JACOBS LEVY AND ABC INSURANCE COMPANY
Michael W. Whitehead MICHAEL W. WHITEHEAD, L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT Darleen M. Jacobs Al Sarrat Rene' D. Lovelace JACOBS SARRAT & LOVELACE COUNSEL FOR DEFENDANT/APPELLEE
*** NOT DESIGNATED FOR PUBLICATION ***
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2010-4602, DIVISION "C"
Honorable Sidney H. Cates, Judge
PAUL A. BONIN
JUDGE
(Court composed of Judge Charles R. Jones, Judge Edwin A. Lombard, Judge Paul
A. Bonin)
JONES, C.J., DISSENTS WITH REASONS
Michael W. Whitehead
MICHAEL W. WHITEHEAD, L.L.C.
COUNSEL FOR PLAINTIFF/APPELLANT
Darleen M. Jacobs
Al Sarrat
Rene' D. Lovelace
JACOBS SARRAT & LOVELACE
COUNSEL FOR DEFENDANT/APPELLEE
AMENDED AND, AS AMENDED,
AFFIRMED
Landry Fontanille, Jr., while in the course and scope of his employment as a carpenter's helper, was injured on property owned by Darleen Jacobs Levy. In addition to Mr. Fontanille's claim for workers compensation benefits from his employer, Homefinders International, Inc., a business solely owned by Ms. Levy, Mr. Fontanille also filed this third-party tort action against Ms. Levy personally as owner of the property upon which he was injured.
Jeanne Fontanille, his wife, joined him as a party plaintiff to assert her derivative claim for loss of consortium. See Ferrell v. Fireman's Fund Ins. Co., 96-3028, p. 11 (La. 7/1/97), 696 So.2d 569, 576.
Ms. Levy filed a motion for summary judgment in which she sought dismissal of Mr. Fontanille's suit with prejudice, claiming that no issues of material fact are in dispute. Relying on his own affidavit, Mr. Fontanille argued that there are genuine issues of material fact which preclude summary judgment.After a hearing, the trial court granted Ms. Levy's motion for summary judgment, dismissing Mr. Fontanille's suit against Ms. Levy. He timely appealed.
Mr. Fontanille also argued that the case was in its earliest stages and that no discovery had been commenced. He did not, however, formally move for a continuance or deferment of the hearing, and the trial judge stated he was unable to determine what additional facts could be developed which would change the outcome.
After our de novo review of the motion for summary judgment, including the opposing affidavit of Mr. Fontanille, we conclude that the trial court's judgment dismissing Mr. Fontanille's suit against Ms. Levy was correct because Mr. Fontanille has not shown any "material" issue of facts at issue showing that Ms. Levy was negligent or that her property presented an "unreasonably dangerous condition" to him. The trial court, however, failed to decree that the dismissal is with prejudice. See LA. C.C.P. ART. 1844. Accordingly, we amend the judgment to provide that the dismissal is with prejudice and affirm the judgment as amended.
We briefly explain our decision below.
I
In this Part we consider the facts giving rise to Mr. Fontanille's worksite injury. Although the parties present different factual scenarios, the differences between the two is not "material," that is, the outcome of the motion for summary judgment will be the same regardless of which scenario a fact-finder ultimately finds to be true. See Warren v. Kenny, 10-1580, p. 6 (La. App. 4 Cir. 4/27/11), 64 So. 3d 841, 846.
The undisputed facts are that Mr. Fontanille was employed as a carpenter's helper by Homefinders. Homefinders is solely owned by Ms. Levy. Ms. Levy contracted with Homefinders to repair two rental properties she owns near the intersection of Claiborne Avenue and General Taylor Street in New Orleans. On May 5, 2009, while Mr. Fontanille was employed by Homefinders and repairing these properties, Mr. Fontanille received severe lacerations on his arm, which required multiple surgeries.
Mr. Fontanille claims that while repairing the property, he personally approached Ms. Levy and informed her that the property was rotten and the "dilapidated dangerous condition of the property" presented a great risk of harm to the other employees of Homefinders and to himself. Ms. Levy allegedly then ordered Mr. Fontanille to return to work and to finish the work "as soon as possible." Mr. Fontanille was injured when a co-worker was attempting to remove a door. Because the wood around the door casing was rotten, the door unexpectedly fell and landed on Mr. Fontanille's arm. Mr. Fontanille attributes the property's state of disrepair to long-time neglect following Hurricane Katrina. In other words, Mr. Fontanille's injury was caused by the very condition that he was hired to remedy.
Ms. Levy claims that she was neither present at the job site nor directed the work of any Homefinders employees. Ms. Levy also disputes the manner in which Mr. Fontanille was injured. She asserts that one of Mr. Fontanille's co-workers dropped a door, which caused a glass pane to dislodge from it. And it was that pane of glass which caused the injuries to Mr. Fontanille's arm.
The factual discrepancies between the two versions of the events are not "material" as contemplated by LA. C.C.P. ART. 966 B because no matter which version of the facts is found to be true, Mr. Fontanille will not be able to show that he is entitled to recovery under either negligence or strict liability. We, therefore, find that the facts in contention are not "material."
II
The judgment Mr. Fontanille appeals is a summary judgment, which dismissed Ms. Levy from the suit. Mr. Fontanille argues that the motion was premature because discovery is in the very early stages and evidence may come out that will strengthen his claim.
Appellate courts review motions for summary judgment de novo. Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So. 2d 880, 882-883. Summary judgment is favored and shall be construed "to secure the just, speedy, and inexpensive determination of every action." LA. C.C.P. ART. 966 A(2). "The judgment shall be rendered forthwith 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 material fact, and that the mover is entitled to judgment as a matter of law." LA. C.C.P. ART. 966 B.
As the movant, Ms. Levy bears the burden of proof on the motion for summary judgment; however, because she would not bear the burden of proof at trial, she need only prove an absence of factual support for one essential element of Mr. Fontanille's claim in order for her motion to be granted. LA. C.C.P. ART. 966 C(2). After Ms. Levy established the absence of any such material facts, Mr. Fontanille, as the adverse party to the motion, had the burden "to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial." LA. C.C.P. ART. 966 C(2). Claiming that discovery is in the very early stages, and therefore, he should not be required to show factual support is insufficient to defeat Ms. Levy's motion for summary judgment.
The trial judge did not make a factual determination, as argued by Mr. Fontanille; he made a legal determination that adequate discovery had been made when he stated, "I'm not sure how much any additional discovery would really change the facts." See LA. C.C.P. ART. 966 C(1). We find no abuse of discretion in that determination.
More importantly, because Mr. Fontanille has not produced facts sufficient to establish that he will be able to meet his evidentiary burden at trial, the trial court was correct to grant Ms. Levy's motion for summary judgment. See Brungardt v. Summit, 08-0577, pp. 10-11 (La. App. 4 Cir. 4/8/09), 7 So. 3d 879, 887.
III
In this Part we discuss Mr. Fontanille's burden at trial. Mr. Fontanille's causes of action lie in negligence and strict liability for Ms. Levy's alleged failure to properly maintain her buildings.
The sources of liability occasioned by a person's fault are found in the Civil Code. "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." LA. CIVIL CODE ART. 2315 A. "Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill." LA. CIVIL CODE ART. 2316. "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." LA. CIVIL CODE ART. 2317. Article 2317.1 qualifies the responsibility imposed by Article 2317 for an owner of a thing that causes damage to others: "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." LA. CIVIL CODE ART. 2317.1.
A
Strict liability in Louisiana came about through a series of Supreme Court decisions in 1974 and 1975 declaring defendants to be guilty of "legal fault" without requiring the plaintiff to prove personal negligence. Crawford, William. Louisiana Civil Law Treatise: Tort Law, §25, pp. 681-691 (2009). Strict liability was originally applicable only in specific situations such as a parent for his child and the owner of an animal for the acts of that animal; however, Loescher v. Parr, 324 So. 2d 441, 448 (La. 1975) made strict liability applicable to all cases arising under Civil Code articles 2317-2322. The Supreme Court in Loescher declared that a plaintiff "must prove the vice (i.e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice." Id. at 446-447. "Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force." Id. The strict liability regime established two notable characteristics to the analysis of tort claims in the ensuing twenty years: 1) plaintiffs no longer had to prove foreseeability of the risk and 2) the defendant's exercise of reasonable care was irrelevant and, therefore, inadmissible. Crawford, pp. 682-683. Thus, the only issue in many cases, aside from causation, was whether the thing causing harm was "unreasonably dangerous," which the court determined by weighing the costs of prevention against the potential harm. Id.
See Holland v. Buckley, 305 So. 2d 113 (La. 1974); Turner v. Bucher, 308 So. 2d 270 (La. 1975); Loescher v. Parr, 324 So. 2d 441 (La. 1975).
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The traditional notions of strict liability imbedded in decisions such as Loescher, supra, and Olsen v. Shell Oil Co., 365 So. 2d 1285 (La. 1978) are nearly entirely abrogated by the Lawmaker's 1996 amendments to the Civil Code which resulted in the current versions of the articles cited as well as the creation of Article 2317.1. The creation of Article 2317.1 reinserted consideration of "reasonable care" into the analysis of cases involving damage caused by things in one's possession or control, effectively eliminating strict liability and turning the claim into a negligence claim. Crawford, pp. 683-684. Also in 1996, the legislature amended Article 660, which had previously imposed strict liability on owners of buildings that had caused damage to passersby and neighbors, to include similar language requiring knowledge and failure to exercise reasonable care. Id. at 688-689.
B
Regardless of whether Ms. Levy's liability is analyzed under the old strict liability standard or the new negligence standard, the one inescapable burden of Mr. Fontanille as the injured plaintiff is establishing that Ms. Levy's property presented an unreasonable risk of harm to him. See Oster v. Department of Transp. and Dev., State of Louisiana, 582 So. 2d 1285, 1288 (La. 1991) ("Plaintiff brought this suit essentially under negligence and strict liability theories .... Under both theories, the absence of an unreasonably dangerous condition of the thing implies the absence of a duty on the part of the defendant."). Even prior to the 1996 amendments increasing the burden of proof on the plaintiff, the older strict liability regime required a showing that the property created an "unreasonably dangerous condition."
For Mr. Fontanille to recover under a negligence claim, he must show all of the following four requirements: 1) that Ms. Levy's negligence was the "cause-in-fact" of his injuries, 2) that Ms. Levy owed a duty of care to him, 3) that the requisite duty was breached, and 4) that the risk of harm was within the scope of protection afforded by the duty. Jimenez v. Omni Royal Orleans Hotel, 10-1647, p. 10 (La. App. 4 Cir. 5/18/11), 66 So. 3d 528, 532, citing to Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La. 11/30/99), 752 So. 2d 762, 765.
Ms. Levy's duty in question here is her duty to warn Mr. Fontanille of the dangerous condition of her house. "Whether a duty is owed is a question of law; whether defendant has breached a duty is a question of fact." Brewer v. J.B. Hunt Transp., Inc., 09-1408, p. 14 (La. 3/16/10), 35 So. 3d 230, 240.
Although property owners owe a duty to discover and either correct or warn of unreasonably dangerous conditions, they "generally have no duty to protect against an open and obvious hazard." Eisenhardt v. Snook, 08-1287, p. 6 (La. 3/17/09), 8 So. 3d 541, 544. "If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. " Id. Consequently, a "landowner is not liable for an injury which results from a condition which should have been observed" by the injured person "in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner." Id. at 544-545. In Eisenhardt the Supreme Court found no manifest error in the trial court's factual finding that the hazard was open and obvious, thus the plaintiff should have seen and taken appropriate precautions against the hazard.
IV
In this Part we analyze the threshold issue for both the negligence and the strict liability issues is whether Ms. Levy's property was "unreasonably dangerous" to Mr. Fontanille because Ms. Levy will owe no duty under either theory of recovery unless her property is found to be "unreasonably dangerous." The Supreme Court laid out a four-factor test to determine whether a condition is "unreasonably dangerous":
(1) The utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) theDauzat v. Curnest Fuillot Logging Inc., 08-0528, p. 5 (La. 12/2/08), 995 So. 2d 1184, 1186-1187.
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.
The Supreme Court has specified that Mr. Fontanille's status as a repairman "is a significant factor in determination of whether a risk is unreasonable." Celestine v. Union Oil Co. of California, 94-1868, p. 11 (La. 4/10/95), 652 So. 2d 1299, 1305. In Celestine the Supreme Court affirmed the Court of Appeal's reversal of the trial court's judgment. The trial court's judgment in that case was flawed because the jury was not instructed of the significance of the plaintiff's status as a repairman; therefore, the jury's finding was not given the deference normally entitled to the fact-finder, and the Supreme Court found that the risk was not unreasonable in light of the plaintiff's status as a repairman. Id. at 1306.
The facts as presented by the parties show that Ms. Levy has pointed out the absence of an essential element of Mr. Fontanille's claim, an element upon which he has the burden of proof a trial. Mr. Fintanille has not shown that the property which he was hired to repair and the condition of which property was actually known to him before he began the repairs was not "unreasonably dangerous" vis-à-vis him, the repairman. Mr. Fontanille knew of the dangerous condition; therefore, the condition was obvious, at least to him. See Ladue v. Chevron, U.S.A., 920 F. 2d 272, 277 (C.A.5 1991) (Because "unreasonableness" requires an inquiry into "all of the circumstances of a particular case," "Louisiana's scheme of strict liability under Articles 2317 and 2322 posits no constant person or persons, mythical or real, with respect to whom the reasonableness of a given risk is to be measured .... We need only determine whether the grating was unreasonably dangerous with respect to Ladue and those similarly situated."). Because Ms. Levy successfully pointed to the absence of that essential element, the burden shifts to Mr. Fontanille to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, and Mr. Fontanille has not produced such factual support. LA. C.C.P. ART. 966 C(2).
Ms. Levy's motion for summary judgment was correctly granted because Mr. Fontanille has not established that he can meet his burden of showing that Ms. Levy's property was unreasonably dangerous. Mr. Fontanille was hired to repair a dangerous condition on Ms. Levy's property, Mr. Fontanille was aware of particular danger that injured him before his injury, and he was injured by the very condition he was hired to repair. We, therefore, find that Ms. Levy's property was not unreasonably dangerous to Mr. Fontanille, and Ms. Levy is not liable to Mr. Fontanille under theories that she failed to warn or that her property presented an unreasonably dangerous condition to him.
DECREE
The granting of the motion for summary judgment is hereby affirmed. Because in granting the motion for summary judgment, the trial court failed to specify whether it dismissed the suit with or without prejudice, see. LA. C.C.P. ART. 1844, we amend the judgment. Accordingly, there is judgment herein in favor the defendant, Darleen Levy, dismissing the suit of the plaintiffs against her with prejudice.
AMENDED AND, AS AMENDED, AFFIRMED